NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 27 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JONG MIN KIM, No. 21-70432 Petitioner, Agency No. A200-311-565 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 13, 2022 San Francisco, California Before: RAWLINSON, CHRISTEN and KOH, Circuit Judges. Jong Min Kim (“Kim”), a native and citizen of South Korea, seeks review of a decision of the Board of Immigration Appeals (“BIA”) affirming the denial by an immigration judge (“IJ”) of Kim’s motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We “review the BIA’s denial of a motion to reopen for an abuse of discretion,” Hernandez-Ortiz v. Garland, 32 F.4th 794, 800 (9th Cir. 2022), and * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. “the BIA’s legal determinations de novo,” Velasquez-Rios v. Wilkinson, 988 F.3d 1081, 1085 (9th Cir. 2021). For the reasons below, we deny the petition for review.1 1. The “BIA is entitled to deny a motion to reopen where the applicant fails to demonstrate prima facie eligibility for the underlying relief.” Lopez- Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir. 2013). The relief Kim seeks is cancellation of removal. For cancellation of removal, Kim must prove “all aspects of [his] eligibility,” including showing that “he has not been convicted of certain criminal offenses.” Pereida v. Wilkinson, 141 S. Ct. 754, 758-59 (2021) (emphasis added). Kim was previously convicted of a drug felony under California Health and Safety Code § 11359, rendering him ineligible for cancellation of removal. See Roman-Suaste v. Holder, 766 F.3d 1035, 1040 (9th Cir. 2014). However, a state conviction vacated because of a procedural or substantive defect in the underlying criminal proceeding cannot be used in removal proceedings. See Prado v. Barr, 949 F.3d 438, 441 (9th Cir. 2020). A state conviction vacated for equitable, rehabilitation, or immigration hardship reasons remains valid under federal immigration law. Id. A California state court vacated Kim’s drug felony conviction prior to Kim filing the motion to reopen. Kim bears the burden of showing that Kim’s 1 Kim’s motion for stay of removal is denied as moot. 2 conviction was vacated because of a procedural or substantive defect. See Pereida, 141 S. Ct. at 761 (rejecting the argument that the government bears the burden of proof to show whether an individual applying for cancellation of removal was convicted of disqualifying criminal offenses). Kim fails to carry his burden because he fails to identify in the record any procedural or substantive defect in his underlying criminal proceeding. See Prado, 949 F.3d at 441-42. As such, Kim fails to show prima facie eligibility for cancellation of removal, and the BIA did not abuse its discretion in denying Kim’s motion to reopen. Kim relies on Nath v. Gonzales, 467 F.3d 1185 (9th Cir. 2006), …
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