Omar Luna-Arenas v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OMAR LUNA-ARENAS, AKA Omar No. 18-72369
Arenas, AKA Johnny M. Lopez,
Agency No. A205-971-630
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 5, 2021**
San Francisco, California
Before: RAWLINSON and BUMATAY, Circuit Judges, and S. MURPHY, ***
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 Stephen J. Murphy III, United States District Judge for
the Eastern District of Michigan, sitting by designation.
Petitioner Omar Luna-Arenas, a citizen of Mexico, petitions for review of a
final administrative order of removal. The Department of Homeland Security
(“DHS”) ordered Luna-Arenas removed because he was “not lawfully admitted for
permanent residence” and was convicted of “an aggravated felony.” Luna-Arenas
now contends that DHS violated his due process rights by not providing him with a
Notice of Intent to Issue a Final Administrative Removal Order (“Notice”)
translated into his native language. We have jurisdiction under 8 U.S.C. § 1252.
We review due process claims de novo. Vilchez v. Holder, 682 F.3d 1195, 1198
(9th Cir. 2012).
“[A]n individual may obtain relief for a due process violation only if he
shows that the violation caused him prejudice, meaning the violation potentially
affected the outcome of the immigration proceeding.” Gomez-Velazco v. Sessions,
879 F.3d 989, 993 (9th Cir. 2018). Here, Luna-Arenas argues that the outcome of
his proceedings may have been different because he may have been entitled to
discretionary relief under 8 U.S.C. § 1182(h) or relief consistent with Matter of
Quilantan, 25 I. & N. Dec. 285 (BIA 2010). We will address each argument in
turn.
First, relief under 8 U.S.C. § 1182(h) is inapplicable to Luna-Arenas because
he does not dispute that he is an aggravated felon. See 8 U.S.C. § 1101(a)(43)(F)
(“aggravated felony” includes any crime of violence under 18 U.S.C. § 16);
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Banuelos-Ayon v. Holder, 611 F.3d 1080, 1086 (9th Cir. 2010) (“California Penal
Code § 273.5(a) is a categorical crime of violence under 18 U.S.C. § 16(a).”). And
“[n]o alien” convicted of an aggravated felony “shall be eligible for any relief from
removal that the Attorney General may grant at the Attorney General’s discretion.”
8 U.S.C. § 1228(b)(5). Luna-Arenas would therefore not have been entitled to
relief under 8 U.S.C. § 1182(h), which is discretionary. Thus, his inability to apply
for such relief cannot constitute prejudice.
Second, Luna-Arenas argues that “the evidence does not prove whether or
not [he] entered the United States pursuant to Quilantan.” He argues that he may
have been “waved” into the United States via a port of entry and thus was
“inspected and admitted” for the purpose of “adjustment of status” under 8 U.S.C.
§ 1255. Quilantan, 25 I. & N. Dec. at 286, 293. Section 1255(a) states that the
Attorney General may adjust the status of an alien who was inspected and admitted
to the United States. But the alien must (1) “make[] an application for such
adjustment,” (2) be “eligible to receive an immigrant visa and [be] admissible to
the United States for permanent residence,” and (3) there must be an immigrant
visa “immediately available[.]” 8 U.S.C. § 1255(a).
Luna-Arenas’s claim fails because he is inadmissible for permanent
residence. “[A]ny noncitizen who is convicted of an aggravated felony suffers
several consequences” including being inadmissible. Cortes-Maldonado v. Barr,
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978 F.3d 643, 647 (9th Cir. 2020). As discussed above, Luna-Arenas was
convicted of an aggravated felony, so he is inadmissible to the United States under
8 U.S.C. § 1255(a). Id. He therefore cannot show that he was prejudiced by any
potential due process violation relating to the Notice not being translated to his
native language because both of his arguments are futile. We will therefore DENY
the Petition for Review.
The Petition for Review is DENIED.
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