Dan Huynh v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAN HUYNH, No. 17-73326
Petitioner, Agency No. A073-278-488
v.
WILLIAM P. BARR, Attorney General MEMORANDUM*
Respondent,
Appeal from the Board of Immigration Appeals
Argued and Submitted May 22, 2020
San Francisco, California
Before: BERZON and IKUTA, Circuit Judges, and LEMELLE,** Senior District
Judge.
Petitioner Dan Huynh appeals the Board of Immigration Appeal’s (BIA)
decision affirming the denial of petitioner’s motion to reopen deportation
proceedings by the Immigration Court (IJ).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ivan L.R. Lemelle, Senior United States District Judge
for the Eastern District of Louisiana, sitting by designation.
Petitioner argues that notice to his counsel was insufficient, as petitioner could
not be timely found due to his own drug addiction and homelessness issues. While
this court has empathy for anyone with those serious issues, the current law
requires holding that legal notice through service upon his counsel of record is
sufficient. Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000).
Next, petitioner claims the refusal to reopen his removal proceeding sua sponte
was based on legal or constitutional error because the BIA and the IJ (1) admitted a
contested police report into evidence without authentication of the police report;
(2) deprived petitioner of a fair hearing under the Fifth Amendment; and (3) failed
to order a hearing under 8 U.S.C. §1229a(b)(4)(B) to determine the reliability of
the contested police report.
“[T]his court has jurisdiction to review Board decisions denying sua
sponte reopening for the limited purpose of reviewing the reasoning behind the
decisions for legal or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588
(9th Cir. 2016).
In declining to reopen sua sponte, the IJ reasoned that petitioner was ineligible
to adjust his status under 8 U.S.C. § 1159(c), which provides that the Attorney
General may generally adjust an alien’s status, unless the alien is inadmissible
under 8 U.S.C. § 1182(a)(2)(C). The IJ concluded that the Attorney General had
“reason to believe” that petitioner was a drug trafficker and thereby inadmissible
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under that provision. This conclusion was, it appears, partially based on an August
2, 2011 police incident report, which was corroborated by petitioner’s criminal
history report. Such corroboration is enough to authenticate the police report. The
BIA may admit evidence under either the requirements of the INA statute or
through “any procedure that comports with common law rules of
evidence.” Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1196 (9th Cir.
2006) (quoting Iran v. I.N.S., 656 F.2d 469, 472 n. 8 (9th Cir.1981) (as
amended)). Admissibility is generally warranted so long as there is “some sort of
proof that the document is what it purports to be.” Id. Petitioner’s criminal history
report confirms that petitioner was arrested on August 2, 2011 for “poss/purchase
cocaine base f/sale” and “possess unlaw paraphernalia.” It was reasonable to
conclude that the police report was what it purported to be based on this evidence.
See United States v. Gadson, 763 F.3d 1189, 1203 (9th Cir. 2014). Therefore, to
the degree the BIA relied on the police report, it did not base its denial of sua
sponte reopening on any legal error.
Petitioner’s testimony that he was not a drug trafficker does not undermine the
evidence establishing a “reason to believe” that petitioner was a drug trafficker,
and therefore the BIA did not err in not expressly addressing petitioner’s
testimony. The BIA may have determined that there was reason to believe that
petitioner trafficked in controlled substances without considering the police
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incident report. A criminal history report showed that petitioner was arrested for
drug trafficking crimes in 2008, 2011, and 2014. The BIA noted that at the time of
petitioner’s arrest on August 2, 2011, petitioner was “subject to felony probation
for transport, sale, giving away, etc., controlled substances in violation of Cal.
Health & Safety Code § 11352.” This conclusion is purely factual and so not
reviewable as relied upon in the denial of a request for sua sponte reopening. See
Bonilla, 840 F.3d at 588.
Further, petitioner is not entitled to a hearing pursuant to 8 U.S.C.
§1229a(b)(4)(B) nor pursuant to the Due Process Clause of the Fifth Amendment.
Section 1229a(b)(4)(B) is applicable only to removal proceedings, not to the
agency’s discretionary decision as to whether to reopen such proceedings sua
sponte. Likewise, petitioner has no fundamental right to discretionary relief from
removal for purposes of due process; thus, petitioner does not have a right to a
hearing under the Due Process Clause. Tovar-Landin v. Ashcroft, 361 F.3d 1164,
1167 (9th Cir. 2004).
We lack jurisdiction to review petitioner’s unexhausted claim that the Notice to
Appear was defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018). See
Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004). Even assuming petitioner’s
failure to exhaust this claim is not a bar to relief due to a change in the law, see
Huerta-Guevara v. Ashcroft, 321 F.3d 883, 8866 (9th Cir. 2003), petitioner’s
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argument would nevertheless fail in light of Karingithi v. Whitaker, 913 F.3d 1158
(9th Cir. 1158).
PETITION DENIED
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