Jose Perez-Gonzalez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 12, 2022
• Docket: 20-73180
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 12 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE GUADALUPE PEREZ-GONZALEZ, No. 20-73180

Petitioner, Agency No. A205-868-067

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

Respondent.

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

Submitted July 8, 2022** Seattle, Washington

Before: HAWKINS and BUMATAY, Circuit Judges, and MOSKOWITZ,*** District Judge.

Jose Guadalupe Perez-Gonzalez, a native and citizen of Mexico, seeks review

of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal of

* 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 Barry Ted Moskowitz, United States District Judge for the Southern District of California, sitting by designation. an Immigration Judge’s (IJ) denial of his request for cancellation of removal based

on “exceptional and extremely unusual hardship” to his U.S.-citizen children and

stepchildren. See 8 U.S.C. § 1229b(b)(1)(D). We have jurisdiction over Perez-

Gonzalez’s due process claims under 8 U.S.C. § 1252(a)(2)(D), and we review de

novo. Mukulumbutu v. Barr, 977 F.3d 924, 925 (9th Cir. 2020). We deny the

petition for review.

1. Even if Perez-Gonzalez could show that the BIA somehow violated his

due process rights by declining to consider his children’s birth certificates, which he

submitted for the first time on appeal, his challenge fails because he cannot show

prejudice. See Flores-Rodriguez v. Garland, 8 F.4th 1108, 1113 (9th Cir. 2021)

(noting that prejudice is required for reversal based on a due process violation,

“mean[ing] that the outcome of the proceeding may have been affected by the

alleged violation” (quoting Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000))).

Both the IJ and BIA assumed the children were U.S. citizens and qualifying family

members and denied relief after finding that the hardship they would experience did

not rise to the level of “exceptional and extremely unusual.” Perez-Gonzalez does

not challenge the hardship finding itself, and we would not have jurisdiction to

review the agency’s “subjective, discretionary determination” in any

event. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).

2 2. The record does not support Perez-Gonzalez’s argument that the IJ

predetermined the outcome of the proceedings. The IJ conducted a full hearing, and

the decision indicates a thorough review of the evidence and

testimony. Cf. Zolotukhin v. Gonzales, 417 F.3d 1073, 1075–76 (9th Cir. 2005)

(finding prejudgment existed where IJ stated petitioner’s testimony was

unbelievable and excluded key witness testimony). Neither the IJ’s reliance on

written materials when delivering a long oral decision nor the denial of relief itself

is evidence of predetermination.

PETITION FOR REVIEW DENIED.