Miguel Velasco-Marin v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 14, 2020
• Docket: 18-72279
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 14 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIGUEL ANGEL VELASCO-MARIN, No. 18-72279

Petitioner, Agency No. A200-147-933

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted December 9, 2020** San Francisco, California

Before: W. FLETCHER and IKUTA, Circuit Judges, and SCHREIER,*** District Judge.

Miguel Angel Velasco Marin petitions for review of a decision by the Board

of Immigration Appeals (“BIA”) holding that he is ineligible for cancellation 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 Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation. removal under 8 U.S.C. § 1229b because he was convicted of an offense under

§ 1227(a)(2)(E)(ii) by violating a protection order. We deny the petition.

1. The Protection Order: To be eligible for cancellation of removal, an

applicant must establish that he “has not been convicted of an offense under

section . . . 1227(a)(2).” 8 U.S.C. § 1229b(b)(1)(C). Section 1227(a)(2)(E)(ii)

refers to an alien “whom the court determines has engaged in conduct that violates

the portion of a protection order that involves protection against credible threats of

violence.” (Emphasis added.) A “protection order” is “any injunction issued for

the purpose of preventing violent or threatening acts of domestic violence. . . .” Id.

Velasco Marin argues that, rather than considering his conduct in analyzing

whether his offense was described in § 1227(a)(2)(E)(ii), the BIA should have used

the modified categorical approach. See Moncrieffe v. Holder, 569 U.S. 184, 200

(2013) (stating that, when a provision refers to what “the noncitizen was ‘convicted

of,’ not what he did, . . . the inquiry in immigration proceedings is limited

accordingly”); see also Alanis-Alvarado v. Holder, 558 F.3d 833, 836–37 (9th Cir.

2008) (applying the modified categorical approach to a conviction for violating a

protection order in the cancellation context). Velasco Marin argues that Matter of

Obshatko, 27 I. & N. Dec. 173 (BIA 2017), rejected the categorical approach only

for the analysis of whether a violation of a protection order “renders an alien

2 removable,” and that the categorical approach still applies—as in Alanis-

Alvarado—to the analysis of whether such a violation renders an alien ineligible

for cancellation.

Recent precedent forecloses this argument. In Matter of Medina-Jimenez, 27

I. & N. Dec. 399 (BIA 2018), the BIA extended Obshatko to the cancellation

context. The BIA reasoned that it would be “incongruous” to apply the categorical

approach here because § 1227(a)(2)(E)(ii) concerns “a court’s determination

regarding an alien’s conduct.” Id. at 403. In Diaz-Quirazco v. Barr, 931 F.3d 830,

838–43 (9th Cir. 2019), we deferred to the Obshatko/Medina-Jimenez test.

Because Diaz-Quirazco deferred to the BIA’s interpretation that the categorical

approach does not apply here, the BIA made no legal error in analyzing Velasco

Marin’s conduct to determine whether his conviction for violating a protection

order qualified as an offense described in § 1227(a)(2)(E)(ii).

2. Due Process: Velasco Marin also argues that he was denied due process

because the IJ gave the government extra time to brief arguments and did not allow

his lawyer to present oral argument at one hearing. Due process rights are violated

when a proceeding is “so fundamentally unfair that the alien was prevented from

reasonably presenting his case.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.

2000) (internal quotation omitted).

3 The IJ did not act unfairly. She permitted the parties to present all the

relevant facts and even asked for additional evidence. She allowed Velasco Marin

numerous opportunities to submit briefs and present arguments.

PETITION DENIED.