Ruiz-Hernandez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 8, 2023
• Docket: 21-751
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SALVADOR RUIZ-HERNANDEZ, No. 21-751 Agency No. Petitioner, A089-837-551 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted July 18, 2023**

Before: SCHROEDER, RAWLINSON, and BADE, Circuit Judges.

Salvador Ruiz-Hernandez, a native and citizen of Mexico, petitions pro se

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

appeal from an immigration judge’s (“IJ”) decision denying his application for

cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We

review de novo questions of law and claims of due process violations in

* 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). immigration proceedings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th

Cir. 2005). We deny the petition for review.

Ruiz-Hernandez’s claim that the BIA violated due process by affirming

without opinion the IJ’s decision fails because he has not shown error. See

Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014) (“To prevail on a

due-process claim, a petitioner must demonstrate both a violation of rights and

prejudice.”). Ruiz-Hernandez did not argue before the BIA that the IJ violated

due process by failing to advise him of the availability of voluntary departure,

and as such, he did not exhaust the contention and we decline to address it. See

8 U.S.C. § 1252(d)(1) (exhaustion of administrative remedies required); see

also Santos-Zacaria v. Garland, 143 S. Ct. 1103, 1113-14 (2023) (section

1252(d)(1) is a non-jurisdictional claim-processing rule).

Ruiz-Hernandez’s contention that the hardship to his qualifying relatives

should have been assessed as of the time of his original hearing lacks merit. See

Mendez-Garcia v. Lynch, 840 F.3d 655, 663-65 (9th Cir. 2016) (applicant for

cancellation of removal must show hardship to a qualifying relative “as of the

time the IJ adjudicates the alien’s application”). To the extent Ruiz-Hernandez

contends the IJ violated due process by preventing him from seeking appellate

review of the original cancellation denial or by unfairly delaying his

proceedings, we reject these contentions as unsupported by the record.

The temporary stay of removal remains in place until the mandate issues.

PETITION FOR REVIEW DENIED.

2 21-751