Jose Guillen v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 27, 2021
• Docket: 14-71194
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 27 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE ANTONIO GUILLEN, No. 14-71194

Petitioner, Agency No. A070-708-042

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

Respondent.

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

Submitted July 19, 2021**

Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.

Jose Antonio Guillen, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) decision finding him removable and denying his

application for adjustment of status. We have jurisdiction under 8 U.S.C. § 1252.

* 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). We review de novo questions of law and claims of due process violations in

immigration proceedings. Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). We

deny the petition for review.

The BIA did not err in concluding that Guillen failed to establish that his

conviction under California Health & Safety Code § 11550(a) was not a controlled

substance violation that renders him ineligible for adjustment of status. See

8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1255(i)(2)(A); Pereida v. Wilkinson, 141 S. Ct.

754, 758, 766 (2021) (an applicant for relief from removal cannot establish

eligibility where a conviction record is inconclusive as to which elements of a

divisible statute formed the offense); Tejeda v. Barr, 960 F.3d 1184, 1186 (9th Cir.

2020) (holding California Health & Safety Code § 11550(a) is divisible).

Guillen’s contention that the IJ violated due process in cancelling an

evidentiary hearing fails because Guillen has not shown prejudice. See Lata v.

INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring prejudice to prevail on a due

process claim).

The temporary stay of removal remains in place until issuance of the

mandate.

PETITION FOR REVIEW DENIED.

2 14-71194