Miriam Gomez-Cantillano v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 13, 2021
• Docket: 19-72682
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 13 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIRIAM GOMEZ-CANTILLANO, No. 19-72682

Petitioner, Agency No. A203-710-976

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

Respondent.

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

Argued and Submitted December 7, 2021 San Francisco, California

Before: GRABER and COLLINS, Circuit Judges, and CHOE-GROVES,** Judge.

Petitioner Miriam Gomez-Cantillano, a native and citizen of Nicaragua,

petitions for review of an order issued in expedited removal proceedings. We

dismiss the petition.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. We lack jurisdiction to review expedited removal proceedings, including to

review the determination that Petitioner did not establish a credible fear of

persecution or torture. See 8 U.S.C. § 1252(a)(2)(A)(iii) (“[N]o court shall have

jurisdiction to review” determinations made under 8 U.S.C. § 1225(b)(1)(B)); see

also Singh v. Barr, 982 F.3d 778, 784 (9th Cir. 2020) (“Read together, [8 U.S.C.]

§§ 1252(a)(2)(A), (D) and 1252(e) provide clear and convincing evidence that

Congress intended to deprive circuit courts of appeals of jurisdiction to review

expedited removal orders and related matters affecting those orders, including

underlying negative credible fear determinations . . . .”). And, although

§ 1252(e)(2) lists some exceptions to the jurisdictional bar, none applies here. See

8 U.S.C. § 1252(e)(2) (listing exceptions).

We also lack jurisdiction to review Petitioner’s constitutional claim.

Contrary to Petitioner’s assertion that the immigration judge did not consider

whether Petitioner had a “credible fear of persecution,” see 8 U.S.C.

§ 1225(b)(1)(B)(iii)(III), the immigration judge did so and denied that contention

on the merits, relying on evidence that Petitioner did not establish a significant

possibility of persecution. Petitioner’s due process claim thus “cloak[s] an abuse

of discretion argument in constitutional garb.” Torres-Aguilar v. INS, 246 F.3d

2 1267, 1271 (9th Cir. 2001).1

Finally, we reject Petitioner’s argument that we have jurisdiction to consider

“structural errors.” In particular, the determination under 8 U.S.C.

§ 1225(b)(1)(A)(ii) that Petitioner is inadmissible under § 1182(a)(7) is not subject

to judicial review. See 8 U.S.C. § 1252(a)(2)(A)(iii). Moreover, the errors that

Petitioner claims are not actually “structural” in nature. Even if they were,

§ 1252’s jurisdiction-stripping provision does not contain a “structural error”

exception. See Guerrier, 2021 WL 5226070, at *8 (holding that this court lacks

jurisdiction even though the petitioner raised a colorable constitutional claim).

All pending motions are denied as moot.

PETITION DISMISSED.

1 Petitioner concedes that Guerrier v. Garland, No. 20-70115, 2021 WL 5226070 (9th Cir. Nov. 9, 2021) forecloses her access-to-counsel claim.