Henri Calderon-Rodriguez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRI CALDERON-RODRIGUEZ, No. 19-71195
Petitioner, Agency No. A205-273-112
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 10, 2020**
Seattle, Washington
Before: McKEOWN, HUNSAKER, and BUMATAY, Circuit Judges.
Henri Calderon-Rodriguez, a citizen of El Salvador, petitions for review of
the Board of Immigration Appeals’ (BIA) decision denying his application for
cancellation of removal as a matter of discretion. We have jurisdiction under 8
U.S.C. § 1252, and we deny the petition.
*
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).
Although Calderon-Rodriguez satisfied the statutory predicates for
cancellation of removal, see 8 U.S.C. § 1229b(b)(1), the Immigration Judge (IJ)
declined discretionary relief, finding that his criminal history—two convictions for
driving under the influence of alcohol (DUI) and one conviction for felony vehicular
assault/DUI—outweighed other factors supporting his application. The BIA
reviewed de novo and denied cancellation of removal.
Calderon-Rodriguez claims that the BIA violated his due process rights by
disregarding documentation of his wife’s medical conditions, his testimony that he
had rehabilitated, and the passage of time since his last alcohol-related offense.
However, the BIA explicitly acknowledged the hardship his wife would face upon
her husband’s removal. The BIA further explained that the IJ “accorded [Calderon-
Rodriguez’s] testimony little evidentiary weight in light of [his] lengthy history of
driving under the influence . . . and the fact that he has not had the opportunity to
reoffend because he has been in immigration detention since June 2012.”
Accordingly, “nothing in the record or the BIA’s decision indicates a failure to
consider all the evidence,” Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011), and
we find no due process violation.
Calderon-Rodriguez also argues that the BIA violated due process and equal
protection by failing to favorably weigh his rehabilitation evidence where allegedly
similarly situated individuals have been found to be rehabilitated. He cites several
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unpublished administrative decisions granting discretionary relief to non-detainees,
but we lack jurisdiction over constitutional claims alleging that the BIA’s
discretionary decision “is factually inconsistent with similar prior agency . . .
determinations” and need not undertake further equal protection analysis where the
record does not show wholly irrational distinctions. Arteaga-De Alvarez v. Holder,
704 F.3d 730, 736 & n.2 (9th Cir. 2012); Halaim v. INS, 358 F.3d 1128, 1135 (9th
Cir. 2004). We likewise lack jurisdiction to review the BIA’s value judgments with
respect to the weighing of discretionary factors. Romero-Torres v. Ashcroft, 327
F.3d 887, 891 (9th Cir. 2003). To the extent that Calderon-Rodriguez bases his due
process claim on a theory of unlawful detention, we find that he failed to exhaust
this claim, and we are therefore barred from reviewing it. Barron v. Ashcroft, 358
F.3d 674, 678 (9th Cir. 2004).
PETITION FOR REVIEW DENIED.
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