NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 2 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RODRIGO A. LOPEZ, AKA Rodrigo No. 19-72407 Lopez Avila, Agency No. A073-949-006 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 6, 2021** Seattle, Washington Before: PAEZ, M. SMITH, and NGUYEN, Circuit Judges. Rodrigo Lopez, a citizen of Mexico, petitions for review of a decision by the Board of Immigration Appeals (“BIA”) upholding an immigration judge’s (“IJ”) * 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). denial of his application for an adjustment of status pursuant to 8 U.S.C. § 1255(i). We have jurisdiction under 8 U.S.C. § 1252, and we deny Lopez’s petition. The court lacks jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i) to review the agency’s discretionary decision to grant or deny adjustment of status under § 1255. See Bazua-Cota v. Gonzales, 466 F.3d 747, 748 (9th Cir. 2006). The court has jurisdiction, however, to consider colorable legal questions and constitutional claims. See 8 U.S.C. § 1252(a)(2)(D); see also Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1004 (9th Cir. 2003). The court reviews de novo such claims. See Rojas v. Holder, 704 F.3d 792, 794 (9th Cir. 2012). 1. Lopez argues that the IJ erred in admitting the transcript of an interview he gave to the Phoenix Police Department during its investigation into allegations that he sexually abused his minor stepdaughter, as well as a recording of the same interview. He asserts that admission of these materials violated his due process rights because they failed to comply with the procedural requirements in the Immigration Court Practice Manual. Even if the materials were procedurally deficient under the Practice Manual, it does not necessarily follow that their use violated Lopez’s due process rights; the Manual is nonbinding, and the IJ has the power to disregard its requirements in a particular case. Dep’t of Justice, Immigration Court Practice Manual, § 1.1(b) (2020), https://www.justice.gov/file/1250706/download. Nor is there any indication that 2 Lopez was prejudiced by the procedural defects. At the time of the merits hearing, he had received a copy of both the transcript and the recording and acknowledged that he was already familiar with the substance of the interview. Indeed, Lopez himself authenticated the materials. 2. Lopez further argues that neither the recording nor the transcript should have been admitted because neither is probative given that he was acquitted of the sexual abuse charges. By considering the interview in declining to favorably exercise discretion, Lopez argues, the IJ impermissibly re-tried the criminal case against him. Lopez misstates the effect of an acquittal. A jury may find a defendant not guilty for any number of reasons, and such a verdict is not a definitive …
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