Juan Mendez-Barocio v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 25, 2021
• Docket: 19-70635
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN MENDEZ-BAROCIO, AKA Johnny No. 19-70635 Mendez, AKA Juan Mendez, AKA Juan Barola Mendez, AKA Juan B. Mendoza, Agency No. A090-098-913

Petitioner, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted May 18, 2021**

Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.

Juan Mendez-Barocio, a native and citizen of Mexico, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order denying a motion to

remand and dismissing his appeal from an immigration judge’s decision finding

* 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). him removable, denying his motions to terminate, and denying his application for

relief under the Convention Against Torture (“CAT”). Our jurisdiction is

governed by 8 U.S.C. § 1252. We review de novo the agency’s determination that

a crime is as an aggravated felony. Jauregui-Cardenas v. Barr, 946 F.3d 1116,

1118 (9th Cir. 2020). We review for abuse of discretion the denial of a motion to

terminate. Dominguez v. Barr, 975 F.3d 725, 734 (9th Cir. 2020). We review de

novo claims of due process violations in immigration proceedings. Jiang v.

Holder, 754 F.3d 733, 738 (9th Cir. 2014). We deny in part and dismiss in part the

petition for review.

Mendez-Barocio’s opposed motion for stay and abeyance is denied.

The agency did not err in concluding Mendez-Barocio’s conviction in

violation of California Penal Code (“CPC”) §§ 664 and 187(a) is an aggravated

felony rendering him removable where the statute is divisible, and the judicially

noticeable documents unambiguously establish his conviction for attempted

murder. See Gomez Fernandez v. Barr, 969 F.3d 1077, 1090 (9th Cir. 2020) (CPC

§ 187(a) is divisible); 8 U.S.C. § 1101(a)(43)(A), (U). The agency did not err in

concluding Mendez-Barocio’s conviction in violation of CPC § 245(a)(1) is a

crime of violence aggravated felony, rendering him removable. See United States

v. Vasquez-Gonzalez, 901 F.3d 1060, 1065-68 (9th Cir. 2018) (offense under CPC

§ 245(a)(1) was a crime of violence and thus an aggravated felony); United States

2 19-70635 v. Grajeda, 581 F.3d 1186, 1192 (9th Cir. 2009) (“If the conviction is based on

‘force likely to produce great bodily injury,’ such force . . . represents ‘actual

force’ that is violent in nature.”). We reject as unsupported by the record Mendez-

Barocio’s contention that the agency sustained a charge of removability that was

not listed in his notice to appear (“NTA”). Thus, the agency did not abuse its

discretion in denying Mendez-Barocio’s motion to terminate based on challenges

to his removability. See Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016) (“The

BIA abuses its discretion when its decision is arbitrary, irrational, or contrary to

law.”) (internal citation omitted).

To the extent Mendez-Barocio challenges the jurisdiction over his

proceedings under Pereira v. Sessions, 138 S. Ct. 2105 (2018), his contention is

foreclosed by Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020) (“the lack

of time, date, and place in the NTA sent to [petitioner] did not deprive the

immigration court of jurisdiction over her case”). Thus, the agency did not abuse

its discretion in denying Mendez-Barocio’s motion to terminate based on

challenges to the immigration court’s jurisdiction. See Dominguez, 975 F.3d at

741 (no abuse of discretion in denial of motion to terminate where jurisdictional

challenge failed).

Mendez-Barocio’s contention that his right to counsel was violated fails.

See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice

3 19-70635 to prevail on a due process claim). We lack jurisdiction to consider Mendez-

Barocio’s contentions that his NTA did not provide him with reasonable notice of

the charges against him, he was not provided an opportunity to voice objections to

the amendment of his NTA, and he was denied a reasonable opportunity to respond

to or present evidence, because his contentions are procedural errors requiring

exhaustion before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.

2004) (court lacks jurisdiction to review claims not presented to the agency).

Mendez-Barocio does not challenge, and therefore waives, the agency’s

denial of deferral of removal under the CAT and the BIA’s denial of his motion to

remand. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013)

(issues not specifically raised and argued in a party’s opening brief are waived).

To the extent Mendez-Barocio seeks to challenge his detention, he must seek

relief in district court.

The stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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