Opinion
17-73454
11-09-2022
EMILIO DORADO GUERRERO, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted November 7, 2022 Pasadena, 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. A213-016-157
Before: PARKER, KOH, and SUNG, Circuit Judges.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Petitioner Emilio Dorado Guerrero ("Dorado Guerrero"), a native and citizen of Mexico, seeks review of a Board of Immigration Appeals ("BIA") order dismissing an appeal from a removal order by an immigration judge ("IJ"). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.
We review questions of law, including due process claims, de novo and the agency's factual findings for substantial evidence. See Vilchez v. Holder, 682 F.3d 1195, 1198-99 (9th Cir. 2012).
Dorado Guerrero seeks review of the BIA's final order dismissing his appeal from an IJ's decision ordering removal pursuant to INA § 212(a)(6)(A)(i), 8 U.S.C. §1182(a)(6)(A)(i). Dorado Guerrero challenges that order on three grounds. First, Dorado Guerrero argues that his 2015 conviction under California Health and Safety Code § 11377(a) for methamphetamine possession does not make him deportable or ineligible for removal relief because the California crime is broader than the federal offense. Next, he argues that the Notice to Appear ("NTA") was defective because it lacked the time, date, and location of the hearing, and, therefore, the immigration court lacked jurisdiction to decide his case. Finally, he alleges a variety of due process violations by the IJ, including failure to (1) fully develop the record; (2) inquire about post-conviction relief; and (3) allow him to establish eligibility despite admitted evidence from the Form I-213.
This Court is precluded from reviewing Dorado Guerrero's first two arguments because Dorado Guerrero did not raise them on appeal to the BIA, where Dorado Guerrero was represented by counsel. See Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004). Dorado Guerrero argues that a deficient NTA deprived the IJ of jurisdiction. We have rejected that view, see United States v. Bastide-Hernandez, 39 F.4th 1187, 1193 (9th Cir. 2022) (en banc), and, consistent with that holding, previously required alleged NTA deficiencies to be raised below, see Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022).
Dorado Guerrero's due process arguments, though exhausted, are unavailing. Immigration proceedings must provide the procedural due process protections guaranteed by the Fifth Amendment. Lacsina Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009). "A due process violation occurs where (1) the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case, and (2) the alien demonstrates prejudice, which means that the outcome of the proceeding may have been affected by the alleged violation." Id. (citation and internal quotation marks omitted). In considering whether Dorado Guerrero received due process, "[t]he critical question is '[w]hether the IJ's actions prevented the introduction of significant testimony.'" Oshodi v. Holder, 729 F.3d 883, 890 (9th Cir. 2013) (en banc) (citation omitted).
First, Dorado Guerrero argues that the IJ failed to develop the record with respect to Dorado Guerrero's manner of entry. Dorado Guerrero contends that further development may have revealed that Dorado Guerrero was "waved" into the United States, pursuant to Matter of Quilantan, 25 I. &N. Dec. 285, 286 (BIA 2010). But the contention is unsupported by the record. The IJ asked Dorado Guerrero about his mode of entry, and he admitted that he came to the United States without the knowledge of any immigration authorities. In light of that admission, the IJ was not required to question him about whether he was waved in. See Ageyman v. INS, 296 F.3d 871, 884 (9th Cir. 2002) (emphasizing that, in developing the record, "[t]he IJ must be responsive to the particular circumstances of the case" and need only draw out relevant evidence).
Dorado Guerrero's second due process argument is that the IJ failed to inquire about whether he was seeking post-conviction relief. That argument, too, fails. The IJ has an obligation to advise a non-citizen of "apparent eligibility" for relief from removal. See United States v. Rojas Pedroza, 716 F.3d 1253, 1263 (9th Cir. 2013) (citation omitted). See also 8 C.F.R. § 1240.11(a)(2) ("The immigration judge shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter and shall afford the alien an opportunity to make application during the hearing."); United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000) ("[W]here the record contains an inference that the petitioner is eligible for relief from deportation, the IJ must advise the alien of this possibility and give him the opportunity to develop the issue."). While the IJ has a duty to advise the non-citizen of eligibility for relief that is provided for by the immigration laws, Dorado-Guerrero cites no authority establishing that an IJ has a duty to advise (or even inquire) about collateral relief, such as post-conviction relief. See Matter of Ponce De Leon-Ruiz, 21 I&N 154, 157 (BIA 1996) (noting that "[t]he availability of post-conviction motions or other forms of collateral attack does not affect the finality of the conviction for immigration purposes, unless and until the conviction has been overturned pursuant to such a motion.").
Finally, Dorado Guerrero argues that he was unable to object to the Form I-213 or to review its contents before he was questioned on it. That argument is without merit. "The sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair." Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995). Although Dorado Guerrero did not receive a copy of the Form I-213 before taking the stand, he did receive a copy before being questioned about its contents. During the course of the IJ's questioning on the Form I-213, Dorado Guerrero admitted that its summary of his criminal history was accurate. When the IJ asked Dorado Guerrero whether he had any objection to the I-213 being entered into the record as evidence, he objected because of the poorly copied photo of him. But Dorado Guerrero does not offer any theories as to how the outcome of his case was prejudiced because of the unclear photograph, nor does he now assert that the Form I-213's contents were inaccurate. The IJ's admission of and reliance on the Form I-213 therefore did not violate due process.
PETITION FOR REVIEW DENIED.
The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation.