Olmos Solorzano v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 23, 2024
• Docket: 23-277
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 23 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OMAR ALEJANDRO OLMOS No. 23-277 SOLORZANO, Agency No. A205-318-942 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 16, 2024** Pasadena, California

Before: BOGGS ***, NGUYEN, and LEE, Circuit Judges.

* 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 Danny J. Boggs, United States Circuit Judge for the Court of Appeals, 6th Circuit, sitting by designation. Petitioner Omar Alejandro Olmos Solorzano, a native and citizen of Mexico,

seeks review of a Board of Immigration Appeals (BIA) order dismissing his appeal

from an Immigration Judge’s (IJ) decision denying his application for cancellation

of removal under 8 U.S.C. § 1229b(b)(1). Our jurisdiction is governed by 8 U.S.C.

§ 1252. We dismiss in part and deny in part the petition for review.

We generally lack jurisdiction to review the BIA’s denial of discretionary

relief, such as cancellation of removal, unless the petitioner presents a claim of legal

or constitutional error. See 8 U.S.C. § 1252(a)(2)(B)(i); Ochoa v. Garland, 71 F.4th

717, 721 (9th Cir. 2023), amended and superseded, Figueroa Ochoa v. Garland, No.

20-72510, 2024 WL 460551, at *4 (9th Cir. Feb. 6, 2024). This includes “any and

all decisions relating to the granting or denying of discretionary relief.” Id. (quoting

Patel v. Garland, 596 U.S. 328, 337 (2022)).

“Where the BIA conducts its own review of the evidence and law . . . our

review is limited to the BIA’s decision, except to the extent the IJ’s opinion is

expressly adopted.” Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012)

(internal quotation marks omitted). If the BIA incorporates the IJ’s reasoning and

conclusions into its own opinion, we may also look to the IJ’s opinion “as a guide to

what lay behind the BIA’s conclusion[s].” Shrestha v. Holder, 590 F.3d 1034, 1039

(9th Cir. 2010) (quoting Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir.

2000)).

2 23-277 1. Denial of time extension. The BIA did not violate Olmos Solorzano’s right

to due process by denying his request for an extension of time in which to file a brief

in support of his appeal.

The BIA has broad discretion in deciding whether to grant an extension to file

a brief. See 8 C.F.R. § 1003.3(c)(1) (noting the BIA “may extend the period for

filing a brief” (emphasis added)). Here, the BIA received Olmos Solorzano’s motion

for an extension on June 21, 2021. With that motion, counsel submitted an affidavit

that stated counsel did not receive the briefing schedule until June 11, 2021, and that

because the BIA deadline for his brief was June 28, 2021, counsel did not have

enough “working days” to file a brief and “simply [was] not able to do this.” The

BIA denied the motion on June 23, 2021, explaining that counsel had “not show[n]

good cause as to why an extension should be granted by the Board.” The BIA stated,

however, that Olmos Solorzano could “file a motion for consideration of [a] late-

filed brief.” On July 12, 2021, Olmos Solorzano filed an untimely brief with the

BIA but did not file a motion for consideration of the late-filed brief. The BIA

properly exercised its discretion in rejecting the late-filed brief.

Olmos Solorzano’s due-process claim also fails because he cannot

demonstrate any prejudice arising from the BIA’s denial of his motion for an

extension. Although the BIA rejected Olmos Solorzano’s brief as untimely, its

opinion addressed all four issues raised in Olmos Solorzano’s notice of appeal. And,

3 23-277 because the rejected brief did not contain any arguments not identified in the notice

of appeal, the BIA’s decision squarely addresses each argument raised in the rejected

brief. Thus, Olmos Solorzano cannot establish that the outcome of the proceeding

may have been different had the BIA granted an extension and formally considered

the brief. See Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir. 2010).

2. IJ’s hardship analysis. We lack jurisdiction to review Olmos Solorzano’s

argument that the BIA “discounted the hardship to be suffered” by his minor children

if he is removed and “summarily concluded that the hardship was ‘common.’” Our

examination of the record confirms that this due-process argument is really a

repackaged challenge to the weight that the BIA assigned to certain facts in its

discretionary analysis, and thus is beyond our review. See Torres-Valdivias v.

Lynch, 786 F.3d 1147, 1153 (9th Cir. 2015) (“A fact-intensive determination in

which the equities must be weighed in reaching a conclusion is a prototypical

example of a discretionary decision” that is “not subject to our review.”); Mendez-

Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009) (noting a petitioner “may not

create the jurisdiction that Congress chose to remove simply by cloaking an abuse

of discretion argument in constitutional garb” (internal citation omitted)).

3. IJ’s assessment of his criminal record. Finally, Olmos Solorzano has failed

to establish a reviewable legal claim in connection with the IJ’s discussion of his

criminal background. Olmos Solorzano argues that the IJ “either through error or by

4 23-277 design,” considered “separate lesser included offenses” as separate convictions. For

example, he argues that the IJ erred by noting that in 2010 Olmos Solorzano was

convicted of driving under the influence and driving under the influence with a high

blood-alcohol level, even though it “was the same event.”

Because Olmos Solorzano challenges the IJ’s factual characterization of his

criminal record, we lack jurisdiction to review the claim. See Ochoa, 71 F.4th at

721. As the BIA noted, even if the IJ’s characterization was in error, “it would not

change the discretionary analysis or the weight given to the circumstances

surrounding [Olmos Solorzano’s] convictions.”

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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