Jong Kim v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 27, 2022
• Docket: 21-70432
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 27 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JONG MIN KIM, No. 21-70432

Petitioner, Agency No. A200-311-565

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

Respondent.

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

Argued and Submitted June 13, 2022 San Francisco, California

Before: RAWLINSON, CHRISTEN and KOH, Circuit Judges.

Jong Min Kim (“Kim”), a native and citizen of South Korea, seeks review of

a decision of the Board of Immigration Appeals (“BIA”) affirming the denial by an

immigration judge (“IJ”) of Kim’s motion to reopen. We have jurisdiction under 8

U.S.C. § 1252. We “review the BIA’s denial of a motion to reopen for an abuse of

discretion,” Hernandez-Ortiz v. Garland, 32 F.4th 794, 800 (9th Cir. 2022), and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. “the BIA’s legal determinations de novo,” Velasquez-Rios v. Wilkinson, 988 F.3d

1081, 1085 (9th Cir. 2021). For the reasons below, we deny the petition for

review.1

1. The “BIA is entitled to deny a motion to reopen where the applicant

fails to demonstrate prima facie eligibility for the underlying relief.” Lopez-

Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir. 2013). The relief Kim seeks is

cancellation of removal. For cancellation of removal, Kim must prove “all aspects

of [his] eligibility,” including showing that “he has not been convicted of certain

criminal offenses.” Pereida v. Wilkinson, 141 S. Ct. 754, 758-59 (2021) (emphasis

added). Kim was previously convicted of a drug felony under California Health

and Safety Code § 11359, rendering him ineligible for cancellation of removal. See

Roman-Suaste v. Holder, 766 F.3d 1035, 1040 (9th Cir. 2014).

However, a state conviction vacated because of a procedural or substantive

defect in the underlying criminal proceeding cannot be used in removal

proceedings. See Prado v. Barr, 949 F.3d 438, 441 (9th Cir. 2020). A state

conviction vacated for equitable, rehabilitation, or immigration hardship reasons

remains valid under federal immigration law. Id.

A California state court vacated Kim’s drug felony conviction prior to Kim

filing the motion to reopen. Kim bears the burden of showing that Kim’s

1 Kim’s motion for stay of removal is denied as moot.

2 conviction was vacated because of a procedural or substantive defect. See Pereida,

141 S. Ct. at 761 (rejecting the argument that the government bears the burden of

proof to show whether an individual applying for cancellation of removal was

convicted of disqualifying criminal offenses).

Kim fails to carry his burden because he fails to identify in the record any

procedural or substantive defect in his underlying criminal proceeding. See Prado,

949 F.3d at 441-42. As such, Kim fails to show prima facie eligibility for

cancellation of removal, and the BIA did not abuse its discretion in denying Kim’s

motion to reopen.

Kim relies on Nath v. Gonzales, 467 F.3d 1185 (9th Cir. 2006), but that case

is inapposite. In Nath, we required the government to show why the state court

vacated a conviction because the government relied on that conviction as the basis

of removal. Id. at 1188-89; accord 8 U.S.C. § 1229a(c)(3)(A). Here, the

government did not rely on Kim’s vacated conviction as the basis for removal.

2. Kim’s due process claim is unexhausted and unpersuasive. To the

extent Kim alleges a due process violation by the IJ, Kim failed to exhaust that

claim before the BIA. See Sola v. Holder, 720 F.3d 1134, 1136 (9th Cir. 2013)

(due process claims correctable by the BIA must be presented to the BIA). Nor has

Kim shown any error by the BIA or resulting prejudice. Lata v. I.N.S., 204 F.3d

1241, 1246 (9th Cir. 2000) (petitioner must show error and prejudice to succeed on

3 a due process claim).

3. Kim argues the BIA erred by relying on Matter of Thomas &

Thompson, 27 I. & N. Dec. 674 (A.G. 2019), a published opinion by the United

States Attorney General. This argument fails for two reasons. First, in the instant

case the BIA did not rely on the portion of Matter of Thomas overruling BIA

precedent. Second, Kim’s contention that Matter of Thomas violates the United

States Constitution because the United States Attorney General overruled prior

BIA precedent, is incorrect. “[T]he Attorney General may overrule the BIA by

issuing a published opinion.” Miguel-Miguel v. Gonzales, 500 F.3d 941, 947 (9th

Cir. 2007).

PETITION DENIED.