Juan Rodriguez Ozuna v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
APR 5 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN CARLOS RODRIGUEZ OZUNA, No. 18-72936
Petitioner, Agency No. A079-519-277
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 18, 2022**
San Francisco, California
Before: CHRISTEN and BRESS, Circuit Judges, and LYNN,*** District Judge.
Juan Carlos Rodriguez Ozuna, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (BIA) decision: (1) dismissing his
*
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 Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
appeal from an immigration judge’s (IJ) order denying his application for
cancellation of removal; and (2) declining to remand his proceedings. We have
jurisdiction pursuant to 8 U.S.C. § 1252(a), and we deny Rodriguez Ozuna’s
petition.1
1. Rodriguez Ozuna argues that his removal order is invalid because his
1992 conviction pursuant to section 647.6 of the California Penal Code was
vacated. We disagree. As the BIA observed, Rodriguez Ozuna’s removal order
rested on his admitted and unchallenged inadmissibility due to entering the United
States without admission or parole pursuant to 8 U.S.C. § 1182(a)(6)(A)(i).
2. Rodriguez Ozuna argues that the BIA should have remanded his
proceedings to further develop the record because his conviction pursuant to
section 647.6 was vacated. We review the BIA’s denial of a motion to remand for
abuse of discretion. Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013). We will
reverse the BIA only if its decision was “arbitrary, irrational, or contrary to law.”
Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014) (quoting Perez v. Mukasey, 516
F.3d 770, 773 (9th Cir. 2008)).
1
Because the parties are familiar with the facts, we recite only those
facts necessary to decide the petition.
2
Rodriguez Ozuna’s motion to remand required a showing of prima facie
eligibility for cancellation of removal. See INS v. Abudu, 485 U.S. 94, 104–05
(1988); see also Tzompantzi-Salazar v. Garland, 25 F.4th 752, 759 (9th Cir. 2022).
The criminal history Rodriguez Ozuna submitted to the IJ documented his arrests
in 2015 for lewd acts with a child under the age of 14, in violation of section
288(a) of the California Penal Code, and oral copulation with a child under the age
of 10, in violation of section 288.7(b) of the California Penal Code. But Rodriguez
Ozuna did not provide evidence of the dispositions of those arrests. Rodriguez
Ozuna bore the burden of proving all aspects of his eligibility, including proving
that these two arrests did not result in convictions. See Pereida v. Wilkinson, 141
S. Ct. 754, 758 (2021). Because Rodriguez Ozuna did not establish the absence of
a disqualifying conviction, the BIA did not abuse its discretion by declining to
remand Rodriguez Ozuna’s proceedings.
PETITION FOR REVIEW DENIED.
3