Omar Luna-Arenas v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 29, 2021
• Docket: 18-72369
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 29 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OMAR LUNA-ARENAS, AKA Omar No. 18-72369 Arenas, AKA Johnny M. Lopez, Agency No. A205-971-630 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 5, 2021** San Francisco, California

Before: RAWLINSON and BUMATAY, Circuit Judges, and S. MURPHY, *** District Judge.

* 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 Stephen J. Murphy III, United States District Judge for the Eastern District of Michigan, sitting by designation. Petitioner Omar Luna-Arenas, a citizen of Mexico, petitions for review of a

final administrative order of removal. The Department of Homeland Security

(“DHS”) ordered Luna-Arenas removed because he was “not lawfully admitted for

permanent residence” and was convicted of “an aggravated felony.” Luna-Arenas

now contends that DHS violated his due process rights by not providing him with a

Notice of Intent to Issue a Final Administrative Removal Order (“Notice”)

translated into his native language. We have jurisdiction under 8 U.S.C. § 1252.

We review due process claims de novo. Vilchez v. Holder, 682 F.3d 1195, 1198

(9th Cir. 2012).

“[A]n individual may obtain relief for a due process violation only if he

shows that the violation caused him prejudice, meaning the violation potentially

affected the outcome of the immigration proceeding.” Gomez-Velazco v. Sessions,

879 F.3d 989, 993 (9th Cir. 2018). Here, Luna-Arenas argues that the outcome of

his proceedings may have been different because he may have been entitled to

discretionary relief under 8 U.S.C. § 1182(h) or relief consistent with Matter of

Quilantan, 25 I. & N. Dec. 285 (BIA 2010). We will address each argument in

turn.

First, relief under 8 U.S.C. § 1182(h) is inapplicable to Luna-Arenas because

he does not dispute that he is an aggravated felon. See 8 U.S.C. § 1101(a)(43)(F)

(“aggravated felony” includes any crime of violence under 18 U.S.C. § 16);

2 Banuelos-Ayon v. Holder, 611 F.3d 1080, 1086 (9th Cir. 2010) (“California Penal

Code § 273.5(a) is a categorical crime of violence under 18 U.S.C. § 16(a).”). And

“[n]o alien” convicted of an aggravated felony “shall be eligible for any relief from

removal that the Attorney General may grant at the Attorney General’s discretion.”

8 U.S.C. § 1228(b)(5). Luna-Arenas would therefore not have been entitled to

relief under 8 U.S.C. § 1182(h), which is discretionary. Thus, his inability to apply

for such relief cannot constitute prejudice.

Second, Luna-Arenas argues that “the evidence does not prove whether or

not [he] entered the United States pursuant to Quilantan.” He argues that he may

have been “waved” into the United States via a port of entry and thus was

“inspected and admitted” for the purpose of “adjustment of status” under 8 U.S.C.

§ 1255. Quilantan, 25 I. & N. Dec. at 286, 293. Section 1255(a) states that the

Attorney General may adjust the status of an alien who was inspected and admitted

to the United States. But the alien must (1) “make[] an application for such

adjustment,” (2) be “eligible to receive an immigrant visa and [be] admissible to

the United States for permanent residence,” and (3) there must be an immigrant

visa “immediately available[.]” 8 U.S.C. § 1255(a).

Luna-Arenas’s claim fails because he is inadmissible for permanent

residence. “[A]ny noncitizen who is convicted of an aggravated felony suffers

several consequences” including being inadmissible. Cortes-Maldonado v. Barr,

3 978 F.3d 643, 647 (9th Cir. 2020). As discussed above, Luna-Arenas was

convicted of an aggravated felony, so he is inadmissible to the United States under

8 U.S.C. § 1255(a). Id. He therefore cannot show that he was prejudiced by any

potential due process violation relating to the Notice not being translated to his

native language because both of his arguments are futile. We will therefore DENY

the Petition for Review.

The Petition for Review is DENIED.