Gun Chung v. Loretta E. Lynch , 620 F. App'x 637 ( 2015 )

FILED
NOT FOR PUBLICATION
OCT 22 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUN HO CHUNG, No. 12-71330
Petitioner, Agency No. A095-696-578
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 20, 2015**
Pasadena, California
Before: IKUTA and OWENS, Circuit Judges and SESSIONS,*** District Judge.
Gun Ho Chung, a native and citizen of South Korea, petitions for review of
the Board of Immigration Appeals’s (BIA) discretionary denial of his application
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
for adjustment of status. We lack jurisdiction to review discretionary denials of
adjustment of status except to the extent that the petitioner raises constitutional
claims or questions of law. 8 U.S.C. §§ 1252(a)(2)(B), (a)(2)(D).
The admission of Agent Ballard’s testimony did not deprive Chung of his
due process right to a fundamentally fair hearing. See Zetino v. Holder, 622 F.3d
1007, 1013 (9th Cir. 2010). Agent Ballard arrested Chung and questioned him
about the package delivery scheme, so Chung knew the general content of Agent
Ballard’s testimony. Agent Ballard’s testimony concerned Chung’s past conduct,
so it was probative and relevant to the determination whether Chung merited a
favorable exercise of discretion. Chung’s counsel learned in July 2008 that the
government planned to call Agent Ballard as a witness, and Agent Ballard did not
testify until September 2009, so Chung had ample time to prepare to cross-examine
Agent Ballard. Given that Chung was represented by counsel, was able to present
his version of the events, and was able to cross-examine Agent Ballard, the
admission of Agent Ballard’s testimony was fundamentally fair. See
Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926–27 (9th Cir. 2007); Hammad v.
Holder, 603 F.3d 536, 545–46 (9th Cir. 2010); cf. Rojas-Garcia v. Ashcroft, 339
F.3d 814, 823–24 (9th Cir. 2003). Because the Federal Rules of Evidence do not
apply to Chung’s immigration proceeding, see Cinapian v. Holder, 567 F.3d 1067,
2
1074 (9th Cir. 2009), Chung’s reliance on United States v. Vega, 188 F.3d 1150(9th Cir. 1999), is misplaced.
Chung’s reliance on Rules 3.3(g) and 4.15 of the Immigration Court Practice
Manual is also misplaced, because these rules are not binding where the
Immigration Judge (IJ) “directs otherwise,” see Rule 1.1. Here, the IJ gave such
direction by denying Chung’s request that the Department of Homeland Security
(DHS) disclose the content of Agent Ballard’s testimony in more detail and
continuing the hearing to give Chung’s counsel sufficient time to prepare for Agent
Ballard’s testimony. In any event, any procedural error was harmless. Chung
admitted most of the facts on which the IJ and BIA relied, and he has failed to
explain how DHS’s failure to give him a written summary of Agent Ballard’s
testimony (which included Agent Ballard’s statement that Chung said he “would
rather die” than tell Agent Ballard to whom he was delivering the packages)
affected the outcome of the proceedings. See Gutierrez v. Holder, 730 F.3d 900,
903 (9th Cir. 2013).
We lack jurisdiction to review Chung’s argument that the BIA’s factual
findings were not supported by substantial evidence because 8 U.S.C. § 1252(a)
strips us of jurisdiction to review factual determinations underlying
adjustment-of-status decisions. Carrillo de Palacios v. Holder, 708 F.3d 1066,
3
1071 (9th Cir. 2013); Morales-Izquierdo v. Dep't of Homeland Sec., 600 F.3d
1076, 1084 (9th Cir. 2010). We also lack jurisdiction to review Chung’s argument
that the BIA abused its discretion when it denied his application for adjustment of
status. 8 U.S.C. § 1252(a); Hosseini v. Gonzales, 471 F.3d 953, 956 (9th Cir.
2006); Bazua-Cota v. Gonzales, 466 F.3d 747, 749 (9th Cir. 2006).
PETITION DISMISSED IN PART AND DENIED IN PART.
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