Richard Dulnuan v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 16, 2019
• Docket: 16-71875
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHARD DULNUAN, No. 16-71875

Petitioner, Agency No. A046-015-541

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted December 11, 2019**

Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.

Richard Dulnuan, a native and citizen of the Philippines, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s (“IJ”) decision denying cancellation of removal and

ordering him removed. Our jurisdiction is governed by 8 U.S.C. § 1252. We

review de novo questions of law, including claims of due process violations.

* 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). Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014). We deny in part

and dismiss in part the petition for review.

As a threshold matter, we grant Dulnuan’s motion to withdraw and resubmit

his reply brief (Docket Entry No. 36) and have considered the substitute brief.

The BIA properly determined that Dulnuan is removable for having a

conviction for an offense related to a controlled substance, where the plea

agreement and abstract of judgment, read in conjunction with the complaint, show

his 2012 conviction for possession of a controlled substance under California

Health and Safety Code § 11377(a) involved methamphetamine. See 8 U.S.C.

§ 1227(a)(2)(B)(i); United States v. Torre-Jimenez, 771 F.3d 1163, 1169 (9th Cir.

2014) (the phrase “as charged in the Information (or Indictment)” is not necessary

where the documents are unambiguous; finding that an abstract of judgment that

stated defendant was convicted of count 1, and count 1 on the complaint specified

the substance involved was cocaine, was sufficient to establish the substance

involved). Because Dulnuan’s 2012 conviction establishes he is removable, we do

not address his remaining convictions with regard to removability. See Simeonov

v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).

To the extent Dulnuan contends the BIA violated due process in issuing its

order before he could file a motion to terminate or additional briefing regarding

removability, his claim fails, where the BIA addressed removability and he has not

2 16-71875 shown it erred in its analysis. Accordingly, Dulnuan cannot show prejudice. See

Padilla-Martinez, 770 F.3d at 830 (“To prevail on a due-process claim, a petitioner

must demonstrate both a violation of rights and prejudice.”).

We do not reach Dulnuan’s contentions that his convictions are not

aggravated felonies, where the agency did not find him removable nor deny relief

on such a determination. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir.

2010) (the court’s review is limited to the actual grounds relied upon by the BIA).

To the extent Dulnuan attempts to undermine his criminal convictions, this

collateral attack is not properly considered in a petition for review of a BIA

decision. See Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1041 (9th Cir. 2011).

We are not persuaded by Dulnuan’s contentions that the IJ did not apply the

correct standard or consider some of his positive equities in denying cancellation

of removal, that he should have been afforded more time to prepare evidence of his

positive equities, or that the IJ otherwise violated due process. Accordingly, he has

not raised a colorable claim of legal or constitutional error to invoke our

jurisdiction over this discretionary determination. See Arteaga-DeAlvarez v.

Holder, 704 F.3d 730, 736 (9th Cir. 2012) (a petitioner must present a colorable

claim to invoke jurisdiction over a discretionary determination).

We lack jurisdiction to consider Dulnuan’s unexhausted contentions that the

conviction documents in the record are not accurate, that he was forced into

3 16-71875 admitting the allegations and conceding the charge of removability in the notice to

appear, and that the agency did not properly apply the burden of proof regarding

his removability. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (“We

lack jurisdiction to review legal claims not presented in an alien’s administrative

proceedings before the BIA.”).

We do not consider the extra-record evidence submitted with Dulnuan’s

briefs. See 8 U.S.C. § 1252(b)(4)(A) (judicial review is limited to the

administrative record); Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010) (stating

standard for review of out-of-record evidence). We likewise deny Dulnuan’s

motion to reconsider follow-up evidence (Docket Entry No. 33).

Dulnuan’s request for a stay of removal pending review of his petition was

previously granted (Docket Entry No. 17). The stay will expire upon issuance of

the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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