Opinion
18-72479
11-17-2022
FRANCISCO JAVIER MARTINEZ- FRANCO, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted November 15, 2022 [**] San Jose, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A209-405-992
Before: GRABER, TALLMAN, and FRIEDLAND, Circuit Judges.
MEMORANDUM [*]
Francisco Javier Martinez-Franco petitions for review of the decision of the Board of Immigration Appeals ("BIA") dismissing his appeal of an immigration judge's ("IJ") order of removal. We review legal conclusions de novo and factual findings for substantial evidence. Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017).
Martinez-Franco first contends the BIA violated his due process rights when it addressed only the IJ's conclusion that he sought a continuance to apply for postconviction relief from his state criminal law conviction. Before us, he argues that the BIA failed to address two other arguments contained in his pro se brief explaining that he sought the continuance to access his right to counsel and to pursue a fear-based claim.
The BIA did not violate Martinez-Franco's due process rights when it affirmed the IJ's denial of a continuance for Petitioner to apply for post-conviction relief. The BIA's finding that "respondent did not show a likelihood of obtaining collateral relief and that such relief would materially affect the outcome of the removal proceeding" was appropriate under Matter of L-A-B-R-, 27 I&N Dec. 405, 413-15, 417 (A.G. 2018). The petition on this issue is DENIED.
The BIA's opinion did not address either of Petitioner's other arguments. Even under our liberal standard of interpreting pro se pleadings, the brief was insufficient to place the BIA on notice that Petitioner argued that the denial of the continuance violated his right to counsel and incorrectly denied his request to apply for asylum. Nolasco-Amaya v. Garland, 14 F.4th 1007, 1013 (9th Cir. 2021). Therefore, we lack jurisdiction to consider this issue. Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir. 2009).
Finally, Martinez-Franco argues that his case should be remanded in light of Pereida v. Wilkinson, 141 S.Ct. 754 (2021), and Marinelarena v. Garland, 6 F.4th 975 (9th Cir. 2021), so he can try to collect additional evidence demonstrating that his state criminal conviction does not disqualify him from obtaining cancellation of removal under 8 U.S.C. § 1229b. When an applicant is convicted of a crime and the record is ambiguous, "the burden of proof [is] on an applicant for immigration relief to show the absence of a disqualifying conviction." Marinelarena, 6 F.4th at 977.
Martinez-Franco argued to the BIA that the inconclusive record of his conviction under California Health and Safety Code § 11550(a) meant that he was not disqualified from cancellation of removal. But under Marinelarena, the ambiguity in his record means that Petitioner failed to meet his burden of proof. In his brief to us, Petitioner fails to explain how he could develop the record to show that his conviction did not involve a federally controlled substance. He does not get another chance to expand the record on this issue. See id. at 978-79.
PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN PART.
[*] 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).