Gregorio Ventura-Flores v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 17, 2022
• Docket: 19-71179
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GREGORIO CORAZON VENTURA- No. 19-71179 FLORES, AKA Flores Genaro Alejandro, AKA Jorge Flores, Agency No. A208-308-144

Petitioner, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 15, 2022** San Francisco, California

Before: GOULD and RAWLINSON, Circuit Judges, and ADELMAN,*** District Judge.

Petitioner Gregorio Corazon Ventura-Flores seeks review of a decision by

* 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 Lynn S. Adelman, United States District Judge for the Eastern District of Wisconsin, sitting by designation. the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s

denial of his application for cancellation of removal. The BIA affirmed the

Immigration Judge’s finding that Ventura-Flores was ineligible for cancellation of

removal pursuant to section 240A(b) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1229b(b)(1)(A)–(D). Specifically, Ventura-Flores failed to

establish that he has not been convicted of a crime of domestic violence, which

disqualifies an application for cancellation of removal. See § 1229b(b)(1)(C); §

1227(a)(2)(E)(i).

Ventura-Flores is a native and citizen of Mexico who entered the United

States in 2003 without admission or parole. The Department of Homeland

Security (“DHS”) started removal proceedings against him in 2016. Ventura-

Flores admitted the factual allegations against him and conceded removability. He

sought cancellation of removal or, in the alternative, voluntary departure.

DHS submitted a criminal record (“rap sheet”) obtained from the Federal

Bureau of Investigation (“FBI”) which had Ventura-Flores’s fingerprints. The rap

sheet contained convictions for an individual with a different name and birth date

than that in his application for cancellation of removal: “Jorge Flores” with a birth

date of May 22, 1973, in the rap sheet, and “Gregorio Corazon Ventura-Flores”

with a birth date of May 25, 1972, in his application for cancellation of removal.

The convictions in the rap sheet included a state court conviction from 2000 for

2 willful infliction of corporal injury to spouse or cohabitant, in violation of

California Penal Code § 273.5(a). We have held that a violation of CPC § 273.5(a)

is categorically a crime of domestic violence and disqualifies a noncitizen from

being eligible for cancellation of removal. Carrillo v. Holder, 781 F.3d 1155,

1159–60 (9th Cir. 2015).

The Immigration Judge denied Ventura-Flores’s application for cancellation

of removal. At the hearing, Ventura-Flores’s attorney conceded that “because of

the fingerprints” the rap sheet “is not contestable,” and he had no other objections

to its admission.

The BIA dismissed Ventura-Flores’s appeal of the Immigration Judge’s

decision, concluding that “the record contains evidence from which a reasonable

factfinder could conclude” that Ventura-Flores was convicted of violating CPC §

273.5(a) and consequently was ineligible for cancellation of removal. In reaching

this conclusion, the BIA, like the Immigration Judge, emphasized that the name

listed on the rap sheet matched one of Ventura-Flores’s known aliases, the rap

sheet was procured through a fingerprint-based FBI file number, and the name and

birth date, while different from what was on Ventura-Flores’s application for

cancellation of removal, matched those in the records he provided for a different

conviction as part of his application. Emphasizing that the burden of proving

eligibility for cancellation of removal is Ventura-Flores’s to bear, the BIA rejected

3 his argument that it was impossible for him to prove the absence of a disqualifying

conviction because California had destroyed the state court records for the

conviction at issue.

Ventura-Flores filed this petition for review, alleging that the BIA denied

him due process by relying on the FBI rap sheet even though the identity on the rap

sheet differed from that in his application and the state records for the conviction

were destroyed. We generally lack jurisdiction to review the BIA’s denials of

discretionary relief but retain jurisdiction to review questions of law. See 8 U.S.C.

§ 1252(a)(2)(D); Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016).

1. The BIA did not err in concluding that Ventura-Flores was ineligible for

cancellation of removal. The rap sheet was properly admitted pursuant to 8 C.F.R.

§ 1003.41(d) and contains sufficient indicia of reliability. See Sinotes-Cruz v.

Gonzales, 468 F.3d 1190, 1196 (9th Cir. 2006); Padilla-Martinez v. Holder, 770

F.3d 825, 833 (9th Cir. 2014). DHS confirmed the rap sheet was acquired using

Ventura-Flores’s fingerprints and associated FBI number. Though it contained a

different name and birth date from what Ventura-Flores provided in his application

for cancellation of removal, it matched the name and birth date in the documents

he provided with his application, and he included the other name as a known alias

in his application. As the BIA found, this evidence could lead a reasonable

4 factfinder to conclude that Ventura-Flores was convicted of the offense contained

in the rap sheet.

2. The BIA did not err in concluding that the burden of proving eligibility

for cancellation of removal falls on Ventura-Flores. The INA unambiguously

provides that a noncitizen applying for relief from removal “has the burden of

proof to establish” that the noncitizen “satisfies the applicable eligibility

requirements.” § 1229a(c)(4)(A). The Supreme Court recently clarified that any

ambiguity or incompleteness in the record—unfairly or not—works against the

noncitizen applying for discretionary relief from removal. Pereida v. Wilkinson,

141 S. Ct. 754, 767 (2021).

3. We deny Ventura-Flores’s due process claim because he does not have a

liberty interest in discretionary relief from removal, and he did not show error and

prejudice. While due process entitles noncitizens to a “full and fair hearing” in

deportation proceedings, noncitizens do not have an enforceable liberty interest in

privileges created by Congress, including cancellation of removal. Mendez-Garcia

v. Lynch, 840 F.3d 655, 665 (9th Cir. 2016). Nor has he shown substantial

prejudice. Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000). He has not

demonstrated how the information in the purged state court documents would have

established that the individual in those records is not him.

PETITION DENIED.