Miguel Velasco-Marin v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
DEC 14 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIGUEL ANGEL VELASCO-MARIN, No. 18-72279
Petitioner, Agency No. A200-147-933
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2020**
San Francisco, California
Before: W. FLETCHER and IKUTA, Circuit Judges, and SCHREIER,*** District
Judge.
Miguel Angel Velasco Marin petitions for review of a decision by the Board
of Immigration Appeals (“BIA”) holding that he is ineligible for cancellation of
*
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 Karen E. Schreier, United States District Judge for the
District of South Dakota, sitting by designation.
removal under 8 U.S.C. § 1229b because he was convicted of an offense under
§ 1227(a)(2)(E)(ii) by violating a protection order. We deny the petition.
1. The Protection Order: To be eligible for cancellation of removal, an
applicant must establish that he “has not been convicted of an offense under
section . . . 1227(a)(2).” 8 U.S.C. § 1229b(b)(1)(C). Section 1227(a)(2)(E)(ii)
refers to an alien “whom the court determines has engaged in conduct that violates
the portion of a protection order that involves protection against credible threats of
violence.” (Emphasis added.) A “protection order” is “any injunction issued for
the purpose of preventing violent or threatening acts of domestic violence. . . .” Id.
Velasco Marin argues that, rather than considering his conduct in analyzing
whether his offense was described in § 1227(a)(2)(E)(ii), the BIA should have used
the modified categorical approach. See Moncrieffe v. Holder, 569 U.S. 184, 200
(2013) (stating that, when a provision refers to what “the noncitizen was ‘convicted
of,’ not what he did, . . . the inquiry in immigration proceedings is limited
accordingly”); see also Alanis-Alvarado v. Holder, 558 F.3d 833, 836–37 (9th Cir.
2008) (applying the modified categorical approach to a conviction for violating a
protection order in the cancellation context). Velasco Marin argues that Matter of
Obshatko, 27 I. & N. Dec. 173 (BIA 2017), rejected the categorical approach only
for the analysis of whether a violation of a protection order “renders an alien
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removable,” and that the categorical approach still applies—as in Alanis-
Alvarado—to the analysis of whether such a violation renders an alien ineligible
for cancellation.
Recent precedent forecloses this argument. In Matter of Medina-Jimenez, 27
I. & N. Dec. 399 (BIA 2018), the BIA extended Obshatko to the cancellation
context. The BIA reasoned that it would be “incongruous” to apply the categorical
approach here because § 1227(a)(2)(E)(ii) concerns “a court’s determination
regarding an alien’s conduct.” Id. at 403. In Diaz-Quirazco v. Barr, 931 F.3d 830,
838–43 (9th Cir. 2019), we deferred to the Obshatko/Medina-Jimenez test.
Because Diaz-Quirazco deferred to the BIA’s interpretation that the categorical
approach does not apply here, the BIA made no legal error in analyzing Velasco
Marin’s conduct to determine whether his conviction for violating a protection
order qualified as an offense described in § 1227(a)(2)(E)(ii).
2. Due Process: Velasco Marin also argues that he was denied due process
because the IJ gave the government extra time to brief arguments and did not allow
his lawyer to present oral argument at one hearing. Due process rights are violated
when a proceeding is “so fundamentally unfair that the alien was prevented from
reasonably presenting his case.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.
2000) (internal quotation omitted).
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The IJ did not act unfairly. She permitted the parties to present all the
relevant facts and even asked for additional evidence. She allowed Velasco Marin
numerous opportunities to submit briefs and present arguments.
PETITION DENIED.
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