Jose Lopez-Lopez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 22, 2019
• Docket: 18-71180
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE ARIEL LOPEZ-LOPEZ, AKA Jose No. 18-71180 Ariel Lopez, AKA Jose Ariel Lopez Lopez, Agency No. A092-856-198 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted April 17, 2019**

Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.

Jose Ariel Lopez-Lopez, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his application for a waiver of

inadmissibility under former 8 U.S.C. § 1182(c). Our jurisdiction is governed by 8

* 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). U.S.C. § 1252. We review de novo questions of law and constitutional claims.

Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for

review.

The agency did not err or violate due process by admitting into evidence

Sergeant Mark O’Dell’s testimony and an investigative report, where such

evidence was probative, its admission was fundamentally fair, and Lopez-Lopez

did not show that it was inaccurate or unreliable. See Paredes-Urrestarazu v. INS,

36 F.3d 801, 810 (9th Cir. 1994) (“[A]s long as the Board does not consider

inappropriate or irrelevant factors, we think that the breadth of the section 212(c)

inquiry permits the Board to consider evidence of conduct that does not result in a

conviction.” (internal citations omitted)); Sanchez v. Holder, 704 F.3d 1107, 1109

(9th Cir. 2012) (rejecting petitioner’s claim that evidence constituted inadmissible

hearsay, where the sole test for admission of evidence in immigration proceedings

is whether the evidence is probative and its admission is fundamentally fair);

Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995) (burden of establishing a basis

for exclusion of evidence from a government record falls on the opponent of the

evidence, who must come forward with enough negative factors to persuade the

court not to admit it); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring

error and substantial prejudice to prevail on a due process claim).

Because Lopez-Lopez’s contentions regarding the agency’s adverse

2 18-71180 credibility determination assume that the agency erred in admitting Sergeant

O’Dell’s testimony and the investigative report into evidence, it follows that

Lopez-Lopez did not establish error in the agency’s credibility determination. See

Lata, 204 F.3d at 1246.

To the extent the agency’s discretionary denial of relief was based on an

adverse inference from Lopez-Lopez’s invocation of his Fifth Amendment right

against self-incrimination, Lopez-Lopez has not established that the agency erred,

and he cites no authority to support his contention that the agency was not

permitted to draw an adverse inference under the particular circumstances of his

case. See Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011) (“In a

deportation hearing there is no prohibition against drawing an adverse inference

when a petitioner invokes his Fifth Amendment right against self-incrimination.”).

We reject Lopez-Lopez’s claim that the IJ deprived him of a full and fair

hearing on account of bias, hostility, improperly questioning or limiting the

testimony of witnesses, or standing in moral judgment. See Colmenar v. INS, 210

F.3d 967, 971 (9th Cir. 2000) (due process claims require showing that

proceedings were “so fundamentally unfair that the alien was prevented from

reasonably presenting his case”) (internal quotation marks and citation omitted));

Almaghzar v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006) (petitioner “had ample

opportunity to present his case, and the record as a whole does not suggest that the

3 18-71180 IJ did not conduct the hearing with an open mind”).

The agency did not err or violate due process in denying Lopez-Lopez’s

request for a continuance to await the conclusion of an open criminal investigation

or allow him to retain different counsel, where he did not demonstrate good cause,

and where he was represented by his attorney of choice up to his final hearing; at

the time of his request, no new attorney had filed a notice of appearance on his

behalf; and his current counsel had competently represented him over a period of

years. See Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009) (listing factors to

consider); Singh v. Holder, 638 F.3d 1264, 1274 (9th Cir. 2011) (“[T]he IJ [is] not

required to grant a continuance based on . . . speculations.”); Lata, 204 F.3d at

1246; cf. Ram v. Mukasey, 529 F.3d 1238, 1242 (9th Cir. 2008) (an IJ may

“determine, in the absence of a showing of good cause for an additional

continuance, that the right to counsel has been forfeited”).

PETITION FOR REVIEW DENIED.

4 18-71180