Oliva Andrade Olaguiver v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 17, 2023
• Docket: 21-70252
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OLIVA ANDRADE OLAGUIVER, No. 21-70252

Petitioner, Agency No. A205-780-296

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

Respondent.

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

Submitted May 9, 2023** Pasadena, California

Before: HURWITZ and R. NELSON, Circuit Judges, and KANE,*** District Judge.

Oliva Andrade Olaguiver, a native and citizen of Mexico, petitions for review

of an order of the Board of Immigration Appeals (BIA) declining to reconsider its

* 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 Yvette Kane, United States District Judge for the Middle District of Pennsylvania, sitting by designation. dismissal of an appeal of a decision by an immigration judge (IJ) denying

cancellation of removal. In particular, the BIA affirmed the IJ’s determination that

Andrade “did not meet her burden of establishing continuous physical presence” in

the United States for ten years because “her testimony was not credible and she did

not provide sufficient supporting documentation.” See 8 U.S.C. § 1229b(b)(1)(A).

“Congress has sharply circumscribed judicial review of the discretionary-

relief process,” Patel v. Garland, 142 S. Ct. 1614, 1619 (2022), instructing that “no

court shall have jurisdiction to review . . . any judgment” regarding certain relief,

including cancellation of removal, see 8 U.S.C. § 1252(a)(2)(B) (barring jurisdiction

over § 1229b judgments). But this jurisdictional bar should not “be construed as

precluding review of constitutional claims or questions of law.” 8 U.S.C.

§ 1252(a)(2)(D). Reviewing our own jurisdiction de novo, Taslimi v. Holder, 590

F.3d 981, 984 (9th Cir. 2010), we dismiss the petition.

1. Andrade contends that the IJ’s negative credibility determination—

which undergirded the IJ’s conclusion that the continuous-presence element was not

met—was “not supported by substantial evidence” or “based on the totality of

circumstances.” But courts “lack jurisdiction to review facts found as part of

discretionary-relief proceedings,” including a finding that a petitioner’s “testimony

was not credible.” Patel, 142 S. Ct. at 1622, 1627. Continuous presence is also a

factual determination, Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir. 2006),

2 21-70252 and the Supreme Court specifically rejected the argument that the jurisdictional bar

does not apply to the determination that “an applicant has fewer than 10 years of

continuous presence,” Patel, 142 S. Ct. at 1622. Because Andrade merely

challenges the factual basis of the IJ’s factual findings, we lack jurisdiction to

consider the challenge.

2. Andrade also contends that the IJ was biased against her and deprived

her of due process. Though we have jurisdiction to review constitutional claims and

questions of law, 8 U.S.C. § 1252(a)(2)(D), the claims must be “at least . . .

colorable,” meaning they have “some possible validity,” Torres-Aguilar v. INS, 246

F.3d 1267, 1271 (9th Cir. 2001) (quoting United States v. Sarkisian, 197 F.3d 966,

983 (9th Cir. 1999)).

Andrade argues that the IJ acted as a “partisan adjudicator.” Yet Andrade

only points to a comment from the IJ that she was giving Andrade’s “counsel a hard

time because he hasn’t prepared his case at all.” To establish a due process violation

in the immigration context, the petitioner must show that “the proceeding was ‘so

fundamentally unfair that the alien was prevented from reasonably presenting his

case’” and “prejudice, which means that the outcome of the proceeding may have

been affected by the alleged violation.” Colmenar v. INS, 210 F.3d 967, 971 (9th

Cir. 2000) (quoting Platero-Cortez v. INS, 804 F.2d 1127, 1132 (9th Cir. 1986)).

The IJ’s mild admonishment—just before the IJ found in Andrade’s favor on the

3 21-70252 issue being discussed—falls far short of this standard.

Andrade also complains that the IJ “disallow[ed]” a letter from her former

employer corroborating her continuous physical presence in the country since 2004.

But Andrade concedes that she did not introduce this evidence according to “the

filing deadlines that were established by the [IJ] previously.” And she cites no

authority suggesting that the enforcement of filing deadlines deprived her of due

process. See 8 C.F.R. § 1003.31(h) (“If an application or document is not filed

within the time set by the immigration judge, the opportunity to file that application

or document shall be deemed waived.”). At most, she contends that it was unfair to

prohibit the introduction of her untimely evidence because the IJ allowed the

government to rely on “impeachment evidence” that was not disclosed before the

filing deadline. Impeachment evidence, however, is not subject to the filing

deadline. Immig. Ct. Prac. Manual ch. 3.1(b)(ii)(A).1

In sum, Andrade raises no colorable legal or constitutional claim related to the

denial of her application for cancellation of removal. Thus, we lack jurisdiction over

the petition. 8 U.S.C. § 1252(a)(2)(B), (D).

PETITION DISMISSED.

1 Andrade otherwise fails to establish that the IJ’s reliance on this impeachment evidence was improper, much less that it deprived her of due process or resulted in prejudice. See Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995) (“[A] deportation hearing is an administrative proceeding not bound by strict rules of evidence . . . .”).

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