Manuel v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 24, 2023
• Docket: 22-601
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

REYNALDO MANUEL, No. 22-601 Agency No. Petitioner, A097-228-773 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 20, 2023** San Francisco, California

Before: SILER, WARDLAW, and M. SMITH, Circuit Judges.***

Petitioner Reynaldo Manuel, a citizen of the Philippines, petitions for

review of the Board of Immigration Appeals’ (BIA) order dismissing his appeal

of the Immigration Judge’s (IJ) denial of his applications for adjustment of

status and cancellation of removal. Because the parties are familiar with the

* 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 Eugene E. Siler, United States Circuit Judge for the Court of Appeals, Sixth Circuit, sitting by designation. facts, we do not recount them here except as necessary to provide context.

We lack jurisdiction to review “any judgment regarding the granting of”

discretionary immigration relief, including cancellation of removal and

adjustment of status. See 8 U.S.C. § 1252(a)(2)(B)(i); see also Patel v.

Garland, 142 S. Ct. 1614, 1622 (2022) (holding that § 1252(a)(2)(B)(i) strips

courts of jurisdiction over “any judgment relating to the granting of relief[,

which] plainly includes factual findings.”). Because the BIA denied Petitioner’s

applications as a matter of discretion, we have jurisdiction over his petition only

to the extent it raises colorable constitutional and legal claims. See 8 U.S.C.

§ 1252(a)(2)(D).

1. We lack jurisdiction to consider the petitioner’s factual challenges

to the agency’s adverse credibility finding. See Patel, 142 S. Ct. at 1622;

Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014) (noting that “adverse

credibility determinations” are “factual findings”). Manuel disputes the

agency’s evaluation of testimony regarding his prior relationships and criminal

history, suggesting that the IJ’s “faulty factual findings . . . led to a flawed

balancing of the equities” culminating in a legally erroneous adverse credibility

finding. However, each of the petitioner’s challenges concern the IJ’s weighing

of certain facts. We lack jurisdiction to consider such challenges.

2. Petitioner contends that the IJ committed legal error by admitting

the police report related to his 2011 arrest, which resulted in his convictions for

2 22-601 domestic battery and exhibiting a deadly weapon,1 and relying on the report in

the IJ’s balancing of favorable and unfavorable factors. However, IJs may

consider “any reliable and probative evidence regarding [an applicant’s] actual

conduct . . . to determine the factual circumstances underlying his conviction”

and, consequently, whether a favorable exercise of discretion is warranted.

Matter of D-A-C-, 27 I. & N. Dec. 575, 580 (BIA 2019) (citing In Re Mendez-

Moralez, 21 I. & N. Dec. 296, 303 n.1 (BIA 1996)); see also Torres-Valdivias v.

Lynch, 786 F.3d 1147, 1152 (9th Cir. 2015). Given Petitioner’s own testimony

and conviction in relation to his 2011 arrest, Petitioner has not established that

the police report is unreliable. To the extent Petitioner makes the argument that

the agency gave the report undue weight in its balancing of discretionary

factors, we lack jurisdiction to consider it. See Monroy v. Lynch, 821 F.3d

1175, 1177–78 (9th Cir. 2016).

3. Finally, Petitioner argues that the agency’s decisions were legally

erroneous because the agency failed to consider all relevant factors and

evidence in the record. See Flores Molina v. Garland, 37 F.4th 626, 632 (9th

Cir. 2022) (“Where the BIA does not consider all the evidence before it, either

by ‘misstating the record [or] failing to mention highly probative or potentially

dispositive evidence,’ its decision is legal error and ‘cannot stand.’”) (quoting

1 Petitioner also argues that the agency erred in considering a police report from his 2014 arrest, which did not lead to a conviction. However, neither the IJ nor the BIA relied on the 2014 report, and the BIA explicitly noted that the IJ’s discretionary analysis did not include the report.

3 22-601 Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011)). We are not persuaded.

Manuel again raises unreviewable challenges to the agency’s factual findings

regarding its discretionary denial of relief. See 8 U.S.C. § 1252(a)(2)(B)(i);

Patel, 142 S. Ct. at 1622. To the extent that Petitioner argues that the agency

failed to give this evidence sufficient weight, we lack jurisdiction. See Monroy,

821 F.3d at 1177–78. Further, contrary to Petitioner’s assertions, the agency

explicitly referenced his evidence of rehabilitation and that his wife would

suffer hardship if he were removed.2

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

PETITION DISMISSED in part; DENIED in part.

2 Because the agency’s discretionary determination is dispositive as to Petitioner’s application for cancellation of removal, we need not consider the agency’s alternative finding that Petitioner did not establish that his removal would cause his wife exceptional and extremely unusual hardship.

4 22-601