Velasquez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 2023
• Docket: 22-71
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MAURICIO VELASQUEZ, No. 22-71 Agency No. Petitioner, A093-294-069 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted May 10, 2023** San Francisco, California

Before: S.R. THOMAS, CHRISTEN, and BRESS, Circuit Judges.

Mauricio Velasquez petitions for review of the Board of Immigration

Appeals’ (BIA’s) order denying his motion to terminate and dismissing his

appeal from an Immigration Judge’s (IJ’s) decision denying cancellation of

removal and voluntary departure. We have jurisdiction pursuant to 8 U.S.C.

* 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). § 1252, and we deny in part and dismiss in part the petition for review.

1. Velasquez first argues that the BIA erred by denying his motion to

terminate his removal proceedings because his defective Notice to Appear

(NTA) deprived the agency of jurisdiction to enter a removal order. This

argument is foreclosed by our decision in United States v. Bastide-Hernandez,

which held that “the failure of an NTA to include time and date information

does not deprive the immigration court of subject matter jurisdiction.” 39 F.4th

1187, 1188 (9th Cir. 2022) (en banc), cert. denied, 143 S. Ct. 755 (2023).

Velasquez reframes his jurisdictional argument to suggest that Bastide-

Hernandez requires that his proceeding “be remanded to the agency to consider

whether a valid claim-processing challenge exists.” But Velasquez did not raise

a claim-processing challenge before the agency, so that argument is forfeited.

See Manrique v. United States, 581 U.S. 116, 121–22 (2017); Umana-Escobar

v. Garland, 62 F.4th 1223, 1228–29 (9th Cir. 2023) (holding that the petitioner

failed to exhaust the argument that a defective NTA amounted to a claim-

processing violation when he only argued before the BIA that the defective

NTA deprived the IJ of jurisdiction).

2. Velasquez next argues that the BIA erred by overlooking the IJ’s

failure to consider his financial support for his teenage son Jose’s acting career

or evidence of his rehabilitation when evaluating his criminal history. We lack

jurisdiction to consider this challenge to the IJ’s discretionary decisions

regarding cancellation of removal and voluntary departure because the

2 22-71 challenge does not present a colorable legal or constitutional claim. See

Mendez-Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009). Though

Velasquez correctly states that the agency cannot ignore arguments raised by a

petitioner, he did not clearly raise to the IJ the financial support he provides for

Jose’s acting career. The only mention of this topic was in Jose’s brief

declaration. There, Jose stated that he had begun “doing some acting work” and

that Velasquez “pitche[d] in for the expenses.” Jose did not assert, as

Velasquez does in his opening brief, that he is pursuing an acting career,

“analogous to a college education.” Notably, Velasquez was asked about Jose’s

extracurricular activities during multiple hearings and never mentioned acting.

The IJ did hear testimony that Velasquez provided some financial support to

Jose, and the IJ’s decision considered how “reliant” Jose was on Velasquez.

Velasquez also asserts that the IJ failed to “consider the passage of time

as strong evidence of [his] rehabilitation,” but the IJ did consider the length of

time that passed between Velasquez’s criminal convictions and his removal

hearing, specifically noting the dates of the convictions. Only five years had

passed between Velasquez’s last criminal conviction and his first removal

hearing.

Ultimately, Velasquez’s arguments amount to claims that the IJ should

have weighed the evidence differently. Because Velasquez’s “assertion[s] [are]

nothing more than . . . argument[s] that the IJ abused h[er] discretion,” they do

not present a colorable legal or constitutional claim, and we lack jurisdiction to

3 22-71 consider these challenges to the IJ’s discretionary decisions. Martinez-Rosas v.

Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).

3. Last, Velasquez argues that the IJ displayed prejudicial bias, depriving

him of due process. An IJ’s decision will be reversed on due process grounds

only if: (1) “the proceeding was ‘so fundamentally unfair that the [petitioner]

was prevented from reasonably presenting his case’”; and (2) the petitioner

demonstrates that “the outcome of the proceeding may have been affected by

the alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th

Cir. 2006) (quoting Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)).

Velasquez has failed to show that his removal hearing was fundamentally

unfair. Though the IJ expressed suspicion that Velasquez had embellished

aspects of his testimony and frustration that he had failed to obtain a detailed

letter from Jose’s doctor or testimony from Jose’s mother, the record reflects

that Velasquez was able to present his case in detail at three different hearings

and the IJ’s decision thoroughly examined the relevant information. See Rizo v.

Lynch, 810 F.3d 688, 693 (9th Cir. 2016) (denying due process challenge where

the IJ conducted a removal hearing “in an aggressive manner,” but did not deny

a fair hearing).

PETITION FOR REVIEW DENIED in part and DISMISSED in

part.

4 22-71