Munoz-Garcia v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 15, 2024
• Docket: 23-1271
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 15 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE HECTOR MUNOZ GARCIA, No. 23-1271 Agency No. Petitioner, A200-626-986 v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted October 10, 2024** Pasadena, California

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

Jose Hector Munoz Garcia, a native and citizen of Mexico, petitions for

review of a decision of the Board of Immigration Appeals (“BIA”) dismissing an

appeal from an order by an Immigration Judge (“IJ”) denying his application for

* 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). cancellation of removal under 8 U.S.C. § 1229b(b)(1).

We review the BIA’s decision and those parts of the IJ’s decision that the

BIA expressly adopted. Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir.

2023). We review de novo the BIA’s legal determinations. Id.; Suate-Orellana v.

Garland, 101 F.4th 624, 628 (9th Cir. 2024). We have jurisdiction under 8 U.S.C.

§ 1252. We deny the petition for review.

1. Munoz argues that the IJ erred in not granting a continuance to allow him

to marry his U.S. citizen girlfriend, thereby establishing an additional potential

qualifying relative under 8 U.S.C. § 1229b(b)(1)(D). But in his appeal to the BIA,

Munoz did not challenge two grounds on which the IJ denied his application for

cancellation of removal: 1) that Munoz had failed to demonstrate that he had not

been convicted of a disqualifying offense and 2) that the equities did not warrant a

favorable exercise of discretion. Concluding that Munoz therefore had forfeited

any arguments about his cancellation application, the BIA did not address the IJ’s

denial of a continuance.

Before seeking judicial review of a removal order, petitioners must exhaust

administrative remedies available as of right, including appeal to the BIA. 8

U.S.C. § 1252(d)(1); see Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020). Having

failed to administratively appeal the IJ’s findings regarding disqualifying crimes

and the exercise of discretion, Munoz cannot challenge them now. As a result, a

2 continuance could not impact the outcome of Munoz’s application for cancellation

of removal and any error concerning the continuance was harmless. See Zamorano

v. Garland, 2 F.4th 1213, 1228 (9th Cir. 2021).

2. Munoz argues that the omission of time and place details from the notice

to appear deprived the immigration court of jurisdiction over the removal

proceedings. In United States v. Bastide-Hernandez, however, we held that the

pertinent regulations, 8 C.F.R. §§ 1003.14, 1003.15, 1003.18, are not jurisdictional.

39 F.4th 1187 (9th Cir. 2022) (en banc). Rather, they constitute claims-processing

rules subject to 8 U.S.C. § 1252(d)(1) exhaustion. Id. at 1190, 1193; see also

Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023). Because Munoz

did not raise the alleged defects in the notice to appear before the agency, his

claims are unexhausted and barred.

3. To the extent that Munoz challenges 8 C.F.R. § 1240.26(i), a regulation

concerning grants of voluntary departure, his argument fails because he failed to

exhaust this issue before the agency. See 8 U.S.C. § 1252(d)(1).

PETITION DENIED.