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Sandoval-Hernandez v. Garland

United States Court of Appeals, Ninth Circuit
Oct 13, 2022
No. 20-73581 (9th Cir. Oct. 13, 2022)

Opinion

20-73581

10-13-2022

JOSE LUIS SANDOVAL-HERNANDEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.


NOT FOR PUBLICATION

Submitted October 3, 2022 Portland, Oregon

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. A200-695-071

Before: OWENS and MILLER, Circuit Judges, and EZRA, District Judge.

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

MEMORANDUM

Jose Luis Sandoval-Hernandez, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals dismissing his appeal of an immigration judge's order of removal. In 2016, an immigration judge found that Sandoval-Hernandez was ineligible for cancellation of removal but granted his request for voluntary departure. On appeal, the Board affirmed the denial of relief but remanded with instructions to the immigration judge to provide the voluntary-departure advisals required under 8 C.F.R. § 1240.26(c)(3)(ii). On remand, Sandoval-Hernandez informed the immigration judge that he no longer sought voluntary departure. The immigration judge entered a final order of removal. Sandoval-Hernandez now argues that by accepting his waiver of voluntary departure, the immigration judge deprived him of due process. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.

We review due process challenges to removal proceedings de novo. Chavez-Reyes v. Holder, 741 F.3d 1, 3 (9th Cir. 2014). We reverse the Board's decision "on due process grounds if (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." Ibarra-Flores v. Gonzales, 439 F.3d 614, 620-21 (9th Cir. 2006) (internal quotation marks and citations omitted).

We agree with the Board that the record reflects that Sandoval-Hernandez's waiver was knowing, voluntary, and intelligent. Cf. Chavez Garcia v. Sessions, 871 F.3d 991, 996 (9th Cir. 2017). Sandoval-Hernandez appears to have made his decision after discussing with counsel, and he confirmed to the immigration judge that he no longer sought voluntary departure. The immigration judge informed him that he would never again be eligible for voluntary departure, and he acknowledged that he understood that consequence.

Sandoval-Hernandez says that the immigration judge should have done more to determine whether his decision was knowing and voluntary. But he does not argue that his waiver was not knowing and voluntary, and we are unable to conclude that the immigration judge's failure to ask additional follow-up questions rendered the proceeding "so fundamentally unfair" as to violate due process. Ibarra-Flores, 439 F.3d at 620-21 (citation omitted).

Relying on 8 C.F.R. § 1003.25(b), Sandoval-Hernandez argues that the immigration judge should have advised him of the consequences of his decision. That regulation outlines what an immigration judge must do when an alien has stipulated to an order of removal without a hearing, so it is not relevant here. In any event, the immigration judge did inform Sandoval-Hernandez that by electing to waive voluntary departure, he would be "giving that up forever" and would receive "only [a] removal order."

PETITION DENIED.

The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation.


Summaries of

Sandoval-Hernandez v. Garland

United States Court of Appeals, Ninth Circuit
Oct 13, 2022
No. 20-73581 (9th Cir. Oct. 13, 2022)
Case details for

Sandoval-Hernandez v. Garland

Case Details

Full title:JOSE LUIS SANDOVAL-HERNANDEZ, Petitioner, v. MERRICK B. GARLAND, Attorney…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 13, 2022

Citations

No. 20-73581 (9th Cir. Oct. 13, 2022)