Leopoldo Villalba-Franco v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 19, 2021
• Docket: 20-72712
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LEOPOLDO VILLALBA-FRANCO, No. 20-72712

Petitioner, Agency No. A206-150-562

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

Respondent.

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

Submitted October 12, 2021**

Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.

Leopoldo Villalba-Franco, 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 decision denying his application for cancellation of

removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo

* 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). questions of law, including claims of due process violations in immigration

proceedings. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny

in part and dismiss in part the petition for review.

Villalba-Franco’s claim that the agency violated his right to due process by

declining to permit expert witness testimony fails where he has not established

prejudice from any alleged violation. See Lopez-Umanzor v. Gonzales, 405 F.3d

1049, 1056-58 (9th Cir. 2005) (to prevail on due process grounds, the noncitizen

must establish the proceeding was so fundamentally unfair that he was prevented

from reasonably presenting his case and he suffered prejudice from the violation).

We otherwise lack jurisdiction to review the agency’s discretionary

determination that Villalba-Franco did not show exceptional and extremely

unusual hardship to a qualifying relative for purposes of cancellation of removal,

where Villalba-Franco’s remaining challenges to the determination do not raise a

colorable legal or constitutional claim over which we retain jurisdiction. See

8 U.S.C. § 1252(a)(2)(B)(i), (D); Martinez-Rosas v. Gonzales, 424 F.3d 926, 930

(9th Cir. 2005). Villalba-Franco’s reliance on Guerrero-Lasprilla v. Barr, –––

U.S. ––––, 140 S. Ct. 1062 (2020), is misplaced. See Ramadan v. Gonzales, 479

F.3d 646, 650 (9th Cir. 2007) (application of a legal standard to undisputed facts is

a legal question under 8 U.S.C. § 1252(a)(2)(D)); see also Mendez-Castro v.

Mukasey, 552 F.3d 975, 979 (9th Cir. 2009) (Ramadan does not apply to the

2 20-72712 subjective hardship standard).

Villalba-Franco’s contention that jurisdiction did not vest with the

immigration court due to the missing information in his Notice to Appear is

foreclosed by Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020) (“[T]he

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

immigration court of jurisdiction over her case.”).

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

mandate. The motion for a stay of removal is otherwise denied.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 20-72712