Marco Mendez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 17, 2021
• Docket: 14-72747
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARCO ANTONIO RUIZ MENDEZ, No. 14-72747

Petitioner, Agency No. A206-516-494

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

Respondent.

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

Submitted September 14, 2021**

Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.

Marco Antonio Ruiz Mendez, a native and citizen of Mexico, petitions pro

se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’s (“IJ”) decision finding him removable and

denying his application for cancellation of removal. Our jurisdiction is governed

* 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). by 8 U.S.C. § 1252. We review de novo questions of law. Coronado v. Holder,

759 F.3d 977, 982 (9th Cir. 2014). We deny in part and dismiss in part the petition

for review.

The agency did not err in determining that Ruiz Mendez failed to establish

that his offense under California Health & Safety Code (“CHSC”) § 11377(a) was

not a controlled substance violation that renders him removable and ineligible for

cancellation of removal. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1227(a)(2)(B)(i),

1229b(b)(1)(C); Coronado, 759 F.3d at 984-86 (holding that CHSC § 11377(a) is

divisible and subject to the modified categorical approach, and relying on the

minute order and complaint to conclude the conviction was for possession of

methamphetamine and thus a violation of a law relating to a controlled substance);

see also Pereida v. Wilkinson, 141 S. Ct. 754, 766 (2021) (an inconclusive

conviction record is insufficient to meet applicant’s burden of proof to show

eligibility for relief). To the extent Ruiz Mendez contends that the agency erred in

pretermitting his application for cancellation of removal because he was seeking

post-conviction relief, his contention fails because the conviction was final for

immigration purposes. See Planes v. Holder, 652 F.3d 991, 996 (9th Cir. 2011)

(conviction is final for immigration purposes where a judgment of guilt has been

entered and a punishment imposed, even where an appeal or collateral attack is

pending).

2 14-72747 We do not address Ruiz Mendez’s contentions as to whether he satisfied the

continuous physical presence and exceptional and extremely unusual hardship

requirements for cancellation of removal because the BIA did not deny relief on

those grounds. See Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir.

2011) (“In reviewing the decision of the BIA, we consider only the grounds relied

upon by that agency.” (citation and internal quotation marks omitted)). Thus, Ruiz

Mendez’s cancellation of removal claim fails.

We lack jurisdiction to consider Ruiz Mendez’s contentions that the IJ

committed procedural errors by failing to adequately develop the record as to his A

file and alienage. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004)

(court lacks jurisdiction to review claims not presented below).

Ruiz Mendez’s derivative citizenship claim fails because he does not point

to any evidence showing that he satisfies the statutory requirements for derivative

citizenship. See 8 U.S.C. § 1431(a)(3) (requiring that the child resides in the

United States “pursuant to a lawful admission for permanent residence”).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 14-72747