Opinion
21-70994
10-24-2022
ERIKA MARIA LOPERA GIL, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 20, 2022 San Francisco, California
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A087-127-979
Before: S.R. THOMAS and M. SMITH, Circuit Judges, and McSHANE, District Judge.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Petitioner Erika Maria Lopera Gil, a native and citizen of Colombia, challenges the Board of Immigration Appeals' (BIA) dismissal of her appeal from the Immigration Judge's (IJ) denial of her application for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1). The parties are familiar with the facts, so we do not recount them here. We dismiss in part and deny in part the petition for review.
1. We lack jurisdiction over Petitioner's factual challenge to the BIA's hardship determination. The IJ found and the BIA affirmed that Petitioner is ineligible for cancellation of removal because she could not make the requisite showing that "removal would result in exceptional and extremely unusual hardship" to her family. Although Petitioner frames this issue as a "legal question," it is apparent from her brief that she actually seeks a factual review of the hardship determination. But this is "a subjective, discretionary judgment that has been carved out of our appellate jurisdiction." Tampubolon v. Holder, 610 F.3d 1056, 1063 (9th Cir. 2010) (quoting Romero-Torres v. Ashcroft, 327 F.3d 887, 888 (9th Cir. 2003)). For example, Petitioner argues that the IJ did not "give proper weight" to certain evidence during the proceedings. Finally, to the extent De La Rosa-Rodriguez v. Garland, 49 F.4th 1282, 1285 (9th Cir. 2022) applies, we have reviewed the IJ decision and conclude there is no error.
2. Assuming, without deciding, that the IJ erred by admitting evidence of a fraud Petitioner allegedly committed, any error was harmless. As explained in the decision of the BIA, Petitioner did not (and still does not) explain how any such evidence affected the outcome of the IJ's analysis, which rested entirely on the hardship determination. Since Petitioner's failure to show hardship was outcome-determinative, any potential error by the IJ was harmless. See, e.g., Zamorano v. Garland, 2 F.4th 1213, 1228 (9th Cir. 2021) (explaining that, where appropriate, the Court applies the doctrine of harmless error when reviewing a final order of removal); Khudaverdyan v. Holder, 778 F.3d 1101, 1107 n.3 (9th Cir. 2015) (applying the harmless error rule).
3. The BIA did not err when it found that Petitioner waived her argument concerning the IJ's alleged failure to address her eligibility for voluntary departure. Petitioner never sought this form of relief before the IJ, and "we have approved the BIA's practice of 'refusing to address arguments raised for the first time on appeal' that could have been made to the IJ." Zamorano, 2 F.4th 1213, 1228 (9th Cir. 2021) (citing Honcharov v. Barr, 924 F.3d 1293, 1295 (9th Cir. 2019) (per curiam)). Moreover, the BIA properly noted that even on appeal Petitioner never presented any argument that she desires to depart the United States voluntarily.
PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN PART.
The Honorable Michael J. McShane, United States District Judge for the District of Oregon, sitting by designation.