Otoniel Patino Garcia v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 11, 2020
• Docket: 18-70835
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OTONIEL PATINO GARCIA, AKA No. 18-70835 Otoniel Garcia, Agency No. A208-081-810 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted December 8, 2020** Pasadena, California

Before: THOMAS, Chief Judge, O’SCANNLAIN, Circuit Judge, and EZRA,*** District Judge.

Otoniel Patino Garcia (Patino) petitions this court for review of his final

order of removal to Mexico. Because the facts are known to the parties, we repeat

* 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 David A. Ezra, United States District Judge for the Western District of Texas, sitting by designation. them only as necessary to explain our decision.

I

The Notice to Appear’s failure to include notice of the date, time, and place

of Patino’s initial hearing did not deprive the immigration court of jurisdiction

because Patino was subsequently given notice of such information, as provided

under 8 C.F.R. § 1003.18(b). See Aguilar Fermin v. Barr, 958 F.3d 887, 893–95

(9th Cir. 2020); Karingithi v. Whitaker, 913 F.3d 1158, 1159–62 (9th Cir. 2019).

II

The Board of Immigration Appeals (BIA) did not abuse its discretion in

denying Patino’s motion for a continuance so that he could look for evidence to

show that he was born in the United States. See Ahmed v. Holder, 569 F.3d 1009,

1012 (9th Cir. 2009) (“The decision to grant or deny the continuance is within the

sound discretion of the [immigration] judge and will not be overturned except on a

showing of clear abuse.” (internal quotation marks omitted)). Even after he was

given an additional month to prepare for the evidentiary hearing before the

Immigration Judge (IJ), Patino did not provide credible evidence suggesting that he

was born in the United States. The record supports the IJ’s finding that the

testimony offered by Patino’s aunt was not credible, and Patino presented no other

evidence showing that he was born in the United States. See, e.g., Rizk v. Holder,

629 F.3d 1083, 1088 (9th Cir. 2011) (“Because credibility determinations are

2 findings of fact by the IJ, they are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” (internal quotation marks

omitted)). On this record, the BIA did not abuse its discretion in concluding that

Patino failed to show “good cause,” 8 C.F.R. § 1003.29, to receive additional time

to search for evidence of his otherwise unsubstantiated assertion of U.S. birth. See,

e.g., Salgado v. Sessions, 889 F.3d 982, 989 (9th Cir. 2018) (upholding denial of

continuance for a mental health evaluation where no “credible evidence” supported

petitioner’s claim of incompetency).

III

A

The government satisfied its burden of proving Patino’s alienage. First,

Patino’s admissions to his charges of removability, including admission of the fact

that he was born in Mexico and is not a citizen of the United States, were sufficient

to satisfy the government’s burden on this point. See 8 C.F.R. § 1240.10(c); Perez-

Mejia v. Holder, 663 F.3d 403, 414 (9th Cir. 2011); Santiago-Rodriguez v. Holder,

657 F.3d 820, 829 (9th Cir. 2011). In addition, Patino’s Mexican birth certificate

created a presumption of his alienage, which Patino failed to rebut with

“substantial credible evidence” to the contrary. Ayala-Villanueva v. Holder, 572

F.3d 736, 737 n.3 (9th Cir. 2009).

3 B

To the extent that Patino seeks a transfer to the district court for a hearing on

his citizenship claim, no such transfer is warranted because the record does not

present a genuine issue of material fact concerning his nationality. See 8 U.S.C.

§ 1252(b)(5); Ayala-Villanueva, 572 F.3d at 738 (“Traditional summary judgment

rules guide our decision concerning transfer [under § 1225(b)(5)].”). The record

does not contain admissible evidence that could reasonably show (contrary to

Patino’s admissions and to his Mexican birth certificate) that Patino was born in

the United States. Neither Patino’s uncorroborated speculation that his Mexican

birth certificate is fake nor his aunt’s inadmissible hearsay testimony reporting

what she was told about his birthplace creates a genuine dispute on this point. See,

e.g., McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1173 (9th Cir. 2016)

(“Arguments based on conjecture or speculation are insufficient [to withstand

summary judgment].” (internal quotation marks omitted)); Block v. City of Los

Angeles, 253 F.3d 410, 419 (9th Cir. 2001) (holding that, at summary judgment,

the court may not rely on evidence that is “based on inadmissible hearsay” and

which does not “set forth facts that would be admissible in evidence”).

IV

The BIA did not abuse its discretion in finding that Patino waived his

applications for relief from removal by failing to file them by the deadline set by

4 the IJ. See 8 C.F.R. § 1003.31(c); Taggar v. Holder, 736 F.3d 886, 889–90 (9th

Cir. 2013).1

PETITION DENIED.

1 As stated in the court’s order of June 15, 2018, the temporary stay of removal remains in place until issuance of the mandate.