Carlos Borbon-Acosta v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 5 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS ALFREDO BORBON ACOSTA, No. 19-71781
Petitioner, Agency No. A215-649-246
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 2, 2020**
Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.
Carlos Alfredo Borbon Acosta, a native and citizen of Mexico, petitions pro
se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s (“IJ”) decision denying his application for
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo claims
*
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).
of due process violations in immigration proceedings. Jiang v. Holder, 754 F.3d
733, 738 (9th Cir. 2014). We deny in part and grant in part the petition for review,
and we remand.
We do not consider the materials Borbon Acosta submitted with his opening
brief that are not part of the administrative record. See Fisher v. INS, 79 F.3d 955,
963-64 (9th Cir. 1996) (en banc) (court’s review is limited to the administrative
record).
Borbon Acosta does not make any arguments challenging the agency’s
dispositive bases for denying asylum, withholding of removal, and CAT relief. See
Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not
specifically raised and argued in a party’s opening brief are waived). Further,
Borbon Acosta’s contentions that the agency violated his due process rights by not
adequately developing and analyzing his asylum, withholding of removal, and
CAT claims fail. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring
error and substantial prejudice to prevail on a due process claim). Thus, we deny
the petition for review as to Borbon Acosta’s asylum, withholding of removal, and
CAT claims.
Borbon Acosta also contends the agency violated his due process rights
where the BIA found insufficient evidence of his apparent eligibility for special
rule cancellation of removal to trigger the IJ’s duty to advise him of his ability to
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apply for relief. See United States v. Lopez-Velasquez, 629 F.3d 894, 896-97 (9th
Cir. 2010) (explaining that “apparent eligibility” is a “reasonable possibility that
the alien may be eligible for relief” and that a failure to advise an alien of apparent
eligibility is a due process violation). We agree. Thus, we grant the petition for
review as to Borbon Acosta’s due process claim regarding special rule cancellation
of removal for spouses who have been battered or subjected to extreme cruelty,
and we remand to the agency for further proceedings consistent with this
disposition. See C.J.L.G. v. Barr, 923 F.3d 622, 627 (9th Cir. 2019) (“When the IJ
fails to provide the required advise, the appropriate course is to grant the petition
for review, reverse the BIA’s dismissal of [the petitioner’s] appeal of the IJ’s
failure to inform him of this relief, and remand for a new . . . hearing” (citation and
internal quotation omitted)).
Borbon Acosta’s renewed request for a stay of removal, set forth in his
opening brief, is denied as moot.
The government must bear the costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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