Pablo Araque-Sotomayor v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2023
• Docket: 20-70777
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PABLO ALONSO ARAQUE- No. 20-70777 SOTOMAYOR, AKA Pablo Alonso Araque, AKA Pablo Alonso Araque Sotomayor, Agency No. A205-387-240

Petitioner, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted February 17, 2023** Pasadena, California

Before: TASHIMA, HURWITZ, and BADE, Circuit Judges.

Pablo Alonso Araque Sotomayor, a native and citizen of Ecuador, petitions

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

his appeal from an order of 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). adjustment of status. We deny the petition.

1. Araque contends that the immigration court lacked jurisdiction because the

original Notice to Appear (“NTA”) did not contain the address of the immigration

court. But a subsequent Notice of Hearing provided the address and “an initial NTA

need not contain time, date, and place information to vest an immigration court with

jurisdiction if such information is provided before the hearing.” Aguilar Fermin v.

Barr, 958 F.3d 887, 889 (9th Cir. 2020).

2. Araque argues that transcription errors denied him due process. Although

8 U.S.C. § 1252(a)(2)(B)(i) strips our jurisdiction to review a BIA decision

regarding the adjustment of status, § 1252(a)(2)(D) restores “jurisdiction over

constitutional questions and questions of law.” Torres-Valdivias v. Lynch, 786 F.3d

1147, 1151 (9th Cir. 2015).

Araque’s constitutional due process claim fails, however, because even

assuming error, he has not demonstrated prejudice. See Zamorano v. Garland, 2

F.4th 1213, 1226 (9th Cir. 2021). The BIA accepted Araque’s contentions of

rehabilitation and recounted other equities in his favor but found them outweighed

by negative ones. Araque does not show how a more complete transcript would

have affected the agency’s decision. See Mukulumbutu v. Barr, 977 F.3d 924, 928

(9th Cir. 2020).

3. Araque argues that the agency committed an error of law by failing to

2 consider evidence relating to his rehabilitation. See Rashtabadi v. INS, 23 F.3d 1562,

1571 (9th Cir. 1994) (rehabilitation “must be considered in a case involving an alien

who has committed a serious criminal offense”); see also Szonyi v. Barr, 942 F.3d

874, 896 (9th Cir. 2019) (holding that notwithstanding 8 U.S.C. § 1252(a)(2)(B)(i),

we “have jurisdiction to review whether the [BIA] considered relevant evidence in

making” discretionary decisions).

The argument fails. We presume that “the BIA thoroughly considers all

relevant evidence in the record.” Id. at 897. The transcript contains Araque’s

statement that “I was a GED tutor,” and the BIA accepted as true the statements in

Araque’s briefing about his tutoring “over 100 people” for the GED and his

expressed remorse for the actions that led to his conviction. The presentence report

about Araque’s conviction, which was in the agency record, noted Araque’s

acceptance of responsibility.

The BIA also noted several positive equities, including Araque’s

“professional career and property ownership.” It also considered restitution, which

“furthers the traditional sentencing goals of rehabilitation and deterrence, by forcing

defendants to directly witness the effects of their crimes.” In re Silverman, 616 F.3d

1001, 1009 (9th Cir. 2010). This is thus not a case of the agency “misstating the

record and failing to mention highly probative or potentially dispositive evidence.”

Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011).

3 PETITION DENIED.