NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT NARCISO AQUINO-CAMIRO, Nos. 21-70602, 22-417 Petitioner, Agency No. A092-668-321 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 19, 2023** San Francisco, California Before: SILER,*** WARDLAW, and M. SMITH, Circuit Judges. Narciso Aquino-Camiro, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA) 2021 dismissal of 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). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. inter alia, adjustment of status, withholding of removal, and relief pursuant to the Convention Against Torture (2021 decision). He also petitions for review of the BIA’s 2022 denial of his motion to reopen (2022 decision). The relevant standards of review are well-established, and the parties’ familiarity with the briefing and record is assumed. We have jurisdiction under 8 U.S.C. § 1252, and we dismiss in part and deny in part the petitions. 1. Aquino-Camiro appeals the 2022 decision denying his motion to reopen to seek cancellation of removal, which the BIA denied as an exercise of its discretion. See INS v. Abudu, 485 U.S. 94, 104–06 (1988). We generally lack jurisdiction to review this discretionary decision, except insofar as the petitioner raises a colorable legal or constitutional claim. 8 U.S.C. §§ 1252(a)(2)(B)(i), (a)(2)(D); see Mendez-Castro v. Mukasey, 552 F.3d 975, 978–80 (9th Cir. 2009); see also Fernandez v. Gonzalez, 439 F.3d 592, 603 (9th Cir. 2006) (finding our court lacked jurisdiction to review motion to reopen based on the merits of a “previously- made discretionary determination”). Here, Aquino-Camiro argues that the BIA violated his due process rights by failing to properly consider the evidence he submitted with his motion to reopen. A due process violation occurs in an immigration proceeding when (1) the proceeding was so fundamentally unfair that the petitioner was prevented from reasonably presenting his case, and (2) the petitioner demonstrates prejudice. See Vilchez v. 2 Holder, 682 F.3d 1195, 1199 (9th Cir. 2012). While we presume that the BIA reviewed all the relevant evidence before it, a petitioner can show that the proceedings were fundamentally unfair if he overcomes that presumption. Larita- Martinez v. INS, 220 F.3d 1092, 1095–96 (9th Cir. 2000); see Vilchez, 682 F.3d at 1198 (“[D]ue process requires the IJ to consider the relevant evidence.”). However, Aquino-Camiro does not challenge the presumption the BIA considered all the evidence; rather, he argues it “did not give proper weight to the evidence submitted” (emphasis added). “[T]raditional abuse of discretion challenges recast as alleged due process violations do not constitute colorable …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals