Eddy Ortiz v. Loretta E. Lynch , 623 F. App'x 450 ( 2015 )

FILED
NOT FOR PUBLICATION NOV 25 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDDY ORTIZ, No. 14-70443
Petitioner, Agency No. A205-312-857
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Eddy Ortiz, a native and citizen of Guatemala, petitions pro se for review of
the Board of Immigration Appeals’ (“BIA”) order denying his motion to remand
and dismissing his appeal from an immigration judge’s (“IJ”) denial of his
applications for cancellation of removal and voluntary departure. Our jurisdiction
*
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).
is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a
motion to remand, de Jesus Melendez v. Gonzales, 503 F.3d 1019, 1023 (9th Cir.
2007), and review de novo questions of law and constitutional claims, Mohammed
v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in
part the petition for review.
The agency did not err in determining Ortiz failed to demonstrate eligibility
for cancellation of removal under 8 U.S.C. § 1229b. See 8 C.F.R. § 1240.8(d)
(alien bears the burden of establishing eligibility for relief from removal); United
States v. Anderson, 625 F.3d 1219, 1220 (9th Cir. 2010) (per curiam) (“A plea of
nolo contendere ‘is the functional equivalent of a guilty plea.’”); Mendez-Gutierrez
v. Gonzales, 444 F.3d 1168, 1171 (9th Cir. 2006) (A prima facie case is established
“where the evidence reveals a reasonable likelihood that the statutory requirements
for relief have been satisfied.” (internal quotation marks and citations omitted)).
To the extent Ortiz contends the BIA failed to consider whether he received
ineffective assistance of counsel in his removal proceedings, this is unsupported by
the record. The BIA did not err in concluding that Ortiz did not provide a factual
basis for his ineffective assistance claim or demonstrate prejudice. See Mohammed
v. Gonzales, 400 F.3d at 793 (ineffective assistance of counsel claims require
deficient conduct and prejudice).
2 14-70443
To the extent Ortiz seeks to challenge his state court criminal proceedings or
assert ineffective assistance in those proceedings, the validity of his convictions is
not properly before us. See Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1041
(9th Cir. 2011) (“A petitioner may not collaterally attack his state court conviction
on a petition for review of a BIA decision.”).
Accordingly, Ortiz’s claim that he was denied a full and fair hearing before
the IJ fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (to prevail on a
due process challenge, an alien must show error and prejudice).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 14-70443