Rogelio Mendez Hernandez v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGELIO MENDEZ HERNANDEZ, No. 16-73099
Petitioner, Agency No. A200-975-972
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 10, 2019**
Pasadena, California
Before: N. R. SMITH and WATFORD, Circuit Judges, and HELLERSTEIN,***
District Judge.
*
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).
***
The Honorable Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
Rogelio Mendez Hernandez, a native and citizen of Mexico, petitions for
review of an order of the Board of Immigration Appeals (“BIA”) dismissing his
appeal from the decision of an immigration judge (“IJ”), which decision denied his
application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. §
1252(a)(1). We review alleged due process violations in deportation proceedings de
novo. See Jacinto v. INS, 208 F.3d 725, 727 (9th Cir. 2000).
1. Petitioner contends on appeal that the IJ violated his due process rights by,
inter alia, failing to explain the relevant hearing procedures necessary for him to
effectively present his case, and not inquiring into forms of relief, such as asylum,
for which he may have been eligible. The BIA rejected these contentions. We agree
with the BIA, for the reasons that follow.
The Fifth Amendment “guarantees that individuals subject to deportation
proceedings receive due process,” which “requires that an alien receive a full and
fair hearing.” Jacinto, 208 F.3d at 727. Because aliens appearing pro se may be
unfamiliar with immigration law, “it is the IJ’s duty to fully develop the record,” to
“adequately explain the hearing procedures,” and to “conscientiously probe into,
inquire of, and explore for all the relevant facts.” Agyeman v. INS, 296 F.3d 871,
877 (9th Cir. 2002) (quotation marks omitted). However, “[a]n alien has no blanket
right to be advised of the possibility of asylum or other relief,” except where the
facts at hand reasonably reflect the alien’s apparent eligibility for the particular form
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of relief at issue. Valencia v. Mukasey, 548 F.3d 1261, 1262-63 (9th Cir. 2008); see
8 C.F.R. § 1240.11(a)(2); 8 C.F.R. § 1240.11(c)(1). Due process analysis vis-à-vis
the IJ’s explanation of the relevant procedures is guided in part by the IJ’s
responsiveness “to the particular circumstances of the case.” Agyeman, 296 F.3d at
884.
Here, the IJ adequately explained the relevant procedures. The IJ informed
petitioner that he had a right to self-representation; that he would have nearly two
months to find a replacement attorney after the withdrawal of his first lawyer, and
to this end should refer to a list of legal aid lawyers (provided by the IJ); that his
children need not testify because testifying at their young age could be traumatic;
that his wife was permitted to, but need not, testify; that he could bring witnesses to
the hearing to testify about anything positive in petitioner’s past in order to shed
light on petitioner’s criminal history; that he could bring any documents he would
like the IJ to consider; and that the IJ, at the hearing, would ask petitioner questions
about his application in order to bring out his story.
As to the “particular circumstances” presented here, we are mindful of the fact
that petitioner was represented by counsel for almost two years prior to his removal
hearing, and that his original counsel withdrew due to petitioner’s own failure to
attend several scheduled meetings. Prior to withdrawal, this same counsel submitted
close to 200 pages of evidence in support of petitioner’s eligibility for cancellation
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of removal, which evidence tracked the statutory requirements of 8 U.S.C.
§ 1229b(b)(1). These facts undercut petitioner’s claim to have been abandoned by
his initial counsel and the suggestion that petitioner was left to fend entirely for
himself in presenting his case.
Further, we note that the IJ did not rely exclusively on the proofs submitted
by petitioner’s former counsel, but instead fulfilled the IJ’s duty to probe all the
relevant facts. The IJ questioned petitioner at length about the chronology of his
comings and goings to and from the United States, about the extent of any hardship
that would befall his family upon removal, and about facts pertinent to petitioner’s
moral character.
2. Petitioner also repeats on this appeal, albeit briefly, his argument to the BIA
that the IJ should have instructed him as to his potential eligibility for asylum and
developed the facts necessary to petitioner’s pursuit of such relief. However, the
record is devoid of any indication that petitioner feared returning to his home country
or that he was somehow otherwise eligible for asylum relief. See, e.g., Valencia,
548 F.3d at 1263 (“[T]o advise an alien of the availability of relief for which there
is no apparent eligibility would invite the filing of meritless applications.”).
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3. Finally, we decline to reach petitioner’s other arguments, because they were
not raised before the BIA.1 Petitioner claims on appeal that the IJ (1) erred in finding
that he satisfied neither the ten-year physical presence requirement nor the hardship
requirement of § 1229b(b)(1); (2) deprived him of due process by failing to develop
the record as to the presence and hardship requirements; (3) acted with bias in not
allowing him more time to obtain a new attorney after prior counsel withdrew; and
(4) delegated its fact-finding role to the government at his removal hearing. These
claims are nowhere to be found in his brief submitted to the BIA. We therefore lack
jurisdiction over these arguments, whatever their potential validity. See Vargas v.
U.S. Dept. of Immigration & Naturalization, 831 F.2d 906, 907-08 (9th Cir. 1987)
(“Failure to raise an issue in an appeal to the BIA constitutes a failure to exhaust
remedies with respect to that question and deprives this court of jurisdiction to hear
the matter.”); Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per
curiam) (“[W]hen a petitioner does file a brief, the BIA is entitled to look to the brief
for an explication of the issues that petitioner is presenting to have reviewed.”);
Agyeman, 296 F.3d at 877 (“The exhaustion requirement applies to claims that an
1
Some of the issues raised in petitioner’s opening brief were deemed waived by the
BIA (whereas others were raised for the first time on appeal), because he failed to
challenge the IJ’s determination. The government observes that there is ambiguity
in our case law as to standard of review applicable to BIA findings of waiver. See
Resp. Br. at 14-17. We need not resolve this issue here, however, because even
reviewed de novo, the BIA was correct in its findings of waiver.
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alien was denied a full and fair hearing.”) (quotation marks omitted); 8 U.S.C.
§ 1252(d)(1).
In sum, we conclude that the IJ did not violate petitioner’s due process rights.
The cases to which petitioner seeks to analogize involved gross breaches of the
applicant’s right to a fair hearing and are distinguishable. See, e.g., Tawadrus v.
Ashcroft, 364 F.3d 1099, 1105-06 & n.7 (9th Cir. 2004) (pro se alien was not
informed of his right to counsel and was then given a “mere two hours” to prepare
his asylum claim for a hearing at which he (a) was not provided with an opportunity
to explain “perceived inconsistencies” in his testimony “leading to the IJ’s adverse
credibility determination,” and (b) lacked expertise to know to question the
reliability of dubious government evidence); Jacinto, 208 F.3d at 728 (hearing found
to be unfair due to, inter alia, IJ failing to explain to petitioner that she could present
her own affirmative testimony and also failing to provide petitioner an opportunity
to respond to the government’s cross-examination); Agyeman, 296 F.3d at 877 (IJ
incorrectly advised petitioner of the law and the manner in which petitioner needed
to support his application).
PETITION DENIED.
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