Gerardo Cortes Munguia v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 2022
• Docket: 19-71234
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 19 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GERARDO CORTES MUNGUIA, No. 19-71234

Petitioner, Agency No. A200-149-734

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 11, 2022** Seattle, Washington

Before: BOGGS,*** HURWITZ, and KOH, Circuit Judges.

Gerardo Cortes Munguia, a native and citizen of Mexico, seeks review of a

decision by the Board of Immigration Appeals (“BIA”) dismissing his appeal from

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. an order of an Immigration Judge (“IJ”) denying cancellation of removal. We have

jurisdiction under 8 U.S.C. § 1252(b)(2) and deny the petition for review.

1. “The INA expressly requires individuals seeking relief from lawful

removal orders to prove all aspects of their eligibility,” including that “they do not

stand convicted of a disqualifying criminal offense.” Pereida v. Wilkinson, 141 S.

Ct. 754, 758 (2021). Under 8 U.S.C. § 1229b(b)(1)(C), an alien who has been

convicted of certain specified offenses is ineligible for cancellation of removal.

Among those offenses is a “crime of domestic violence,” as defined by 8 U.S.C.

§ 1227(a)(2)(E)(i). See id. § 1229b(b)(1)(C). Munguia stated in his IJ hearing that

he pleaded guilty to committing domestic violence on two occasions, in 2004 and

2011. He also indicated on his application for cancellation of removal that he had

been convicted of interfering with a report of domestic violence. But, despite

repeated requests by the IJ over nearly eight years of proceedings, Munguia failed

to provide any documentation regarding those convictions. He cannot now rely on

the “ambiguity” of his criminal record to suggest that “no one can be sure whether

his crime[s]” make him ineligible for relief. Pereida, 141 S. Ct. at 758. Because

Munguia did not establish that he had not been convicted of a disqualifying offense

under 8 U.S.C § 1227(a)(2), the agency correctly found him ineligible for

cancellation of removal. See id. at 765–67.

2. Munguia’s argument that he was denied due process in the agency

2 proceedings also fails. An agency decision denies due process “if the proceeding

was so fundamentally unfair that the alien was prevented from reasonably presenting

his case,” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (cleaned up), and that

this unfairness “affected the outcome,” Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.

2000). Munguia was repeatedly made aware of the need to provide a record of his

convictions to establish eligibility for discretionary relief. The BIA remanded

Munguia’s case to “assess the impact, if any, of intervening caselaw on [Munguia’s]

eligibility for cancellation of removal for nonpermanent residents given his criminal

history, and to allow the parties an opportunity to supplement the record.” But, when

questioned by the IJ on remand about the conviction documents, Munguia failed to

provide them. Nor did he proffer any such records on appeal; the BIA therefore

correctly concluded Munguia had not established that he was prejudiced by any flaw

in the proceedings because he did not demonstrate prima facie eligibility for relief.

See Vilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012) (explaining that a due

process violation requires a showing that “the outcome of the proceeding may have

been affected by the alleged violation”) (quoting Lacsina Pangilinan v. Holder, 568

F.3d 708, 709 (9th Cir. 2009)).

PETITION DENIED.