Julio Balvaneda Raddatz v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 31 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIO BALVANEDA RADDATZ, AKA No. 19-72800
Julio Balvaneda, AKA Julio Raddatz, AKA
Julio Raddatz Balvaneda, Agency No. A044-344-876
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 30, 2021**
Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges
Julio Balvaneda Raddatz, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
remand and dismissing his appeal from an immigration judge’s (“IJ”) decision
*
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).
denying his applications for asylum, withholding of removal, protection under the
Convention Against Torture (“CAT”), cancellation of removal, and waivers under
INA § 212(c) and § 212(h). Our jurisdiction is governed by 8 U.S.C. § 1252. We
review for abuse of discretion whether the agency clearly departs from its own
standards. Mejia v. Sessions, 868 F.3d 1118, 1121 (9th Cir. 2017). We review de
novo questions of law, including claims of due process violations. Padilla-
Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014). We review for abuse of
discretion the BIA’s denial of a motion to remand. Romero-Ruiz v. Mukasey, 538
F.3d 1057, 1062 (9th Cir. 2008). We deny in part and dismiss in part the petition
for review.
The agency did not abuse its discretion in determining Balvaneda Raddatz
was mentally competent to be in proceedings, where he was able to fully
participate in his proceedings, gave no indication he did not understand the nature
and purpose of the proceedings, and put forth several legal arguments. See
Calderon-Rodriguez v. Sessions, 878 F.3d 1179, 1182 (9th Cir. 2018) (“[T]he test
for determining whether an alien is competent to participate in immigration
proceedings is whether he or she has a rational and factual understanding of the
nature and object of the proceedings, can consult with the attorney or
representative if there is one, and has a reasonable opportunity to examine and
present evidence and cross-examine witnesses.” (quoting Matter of M-A-M-, 25 I.
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& N. Dec. 474, 479 (BIA 2011)).
Balvaneda Raddatz’s conviction for assault with a deadly weapon under
California Penal Code (“CPC”) § 245(a)(1) is an aggravated felony. See United
States v. Vasquez-Gonzalez, 901 F.3d 1060, 1068 (9th Cir. 2018) (determining a
prior version of CPC § 245(a)(1), which penalized more conduct than the amended
version, is categorically an aggravated felony crime of violence under 18 U.S.C.
§ 16(a)). Thus, the agency properly determined Balvaneda Raddatz is removable
and ineligible for cancellation of removal and asylum. See 8 U.S.C.
§§ 1227(a)(2)(A)(iii); 1229b(a)(3); 1158(b)(2)(A)(ii), (B)(i).
Because Balvaneda Raddatz is removable for an aggravated felony
conviction, our jurisdiction is limited to reviewing questions of law and
constitutional claims or the denial of relief on grounds other than his conviction.
See 8 U.S.C. § 1252(a)(2)(C)-(D); Pechenkov v. Holder, 705 F.3d 444, 448 (9th
Cir. 2012). We therefore lack jurisdiction to consider Balvaneda Raddatz’s
contentions challenging the agency’s denial of withholding of removal on the basis
that his conviction is a particularly serious crime, where he has not raised a legal or
constitutional claim. We do not consider Balvaneda Raddatz’s contentions
disputing the facts of his conviction, and deny his request to consolidate this
petition with his state court criminal appeal. See Ramirez-Villalpando v. Holder,
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645 F.3d 1035, 1041 (9th Cir. 2011) (“A petitioner may not collaterally attack his
state court conviction on a petition for review of a BIA decision.”).
The agency did not err in determining that Balvaneda Raddatz is ineligible
for a waiver of inadmissibility under INA § 212(c), where the waiver can only be
applied retroactively to convictions obtained prior to April 1997, and his
conviction occurred in 2017. See INS v. St. Cyr, 533 U.S. 289, 326 (2001); Matter
of Abdelghany, 26 I. & N. Dec. 254, 255 (BIA 2014). The agency also did not err
in determining Balvaneda Raddatz is ineligible for a § 212(h) waiver, where he did
not submit an accompanying application for adjustment of status. See Mtoched v.
Lynch, 786 F.3d 1210, 1218 (9th Cir. 2015) (“[A] § 212(h) waiver for a
[noncitizen] within the United States is available only in connection with an
application for adjustment of status, even for someone who is not eligible to apply
for adjustment of status.” (citation omitted)).
Balvaneda Raddatz’s contentions that he was deprived of an opportunity for
judicial review, that the IJ and government counsel failed to advise him of apparent
eligibility for relief, that the agency applied the wrong standard or failed to follow
its own precedent, that the IJ deprived him of the right to a proper defense, that he
was deprived of due process under the Suspension Clause, and that the agency did
not consider all relevant evidence are unsupported.
There is no genuine issue of material fact regarding Balvaneda Raddatz’s
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claim to derivative citizenship, where there is no evidence in the record to support
his claim. See 8 U.S.C. § 1252(b)(5)(A).
The BIA did not abuse its discretion in denying Balvaneda Raddatz’s motion
to remand, where he did not show that additional testimony from his father was
previously unavailable or that he suffered prejudice from any denial of access to
legal library resources while in detention. See 8 C.F.R. § 1003.2(c)(1) (“[a] motion
to reopen proceedings shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not available and could not have
been discovered or presented at the former hearing”); Padilla-Martinez, 770 F.3d
at 830 (“To prevail on a due-process claim, a petitioner must demonstrate both a
violation of rights and prejudice.”).
Balvaneda Raddatz’s contention that the immigration court lacks jurisdiction
because his notice to appear lacked a time, date, and location for his initial hearing
is foreclosed by Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020).
We lack jurisdiction to review Balvaneda Raddatz’s contentions regarding
conditions of his detention and requesting release. See Singh v. Holder, 638 F.3d
1196, 1211-12 (9th Cir. 2011) (district courts retain jurisdiction over habeas
challenges to immigration detention that are independent of challenges to removal
order merits).
We lack jurisdiction to review Balvaneda Raddatz’s unexhausted
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contentions regarding the denial of relief under the CAT and eligibility for
cancellation of removal, requesting permission to pursue a U Visa, and challenging
documents in the record. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir.
2010) (the court lacks jurisdiction to review legal claims not presented to the BIA).
Balvaneda Raddatz’s motion to expedite this petition (Docket Entry No. 17)
is denied as moot, and his motions for an additional hearing (Docket Entry No. 17)
and to appoint pro bono counsel (Docket Entry No. 19) are denied. The temporary
stay of removal remains in place until issuance of the mandate. His motion for a
stay of removal (Docket Entry No. 1) is otherwise denied.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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