Gerardo Ortega-Hernandez v. Merrick Garland ( 2023 )


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  •                               NOT FOR PUBLICATION                        FILED
    UNITED STATES COURT OF APPEALS                        JAN 23 2023
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    GERARDO ORTEGA-HERNANDEZ,                       No.    20-72272
    Petitioner,                     Agency No. A206-191-543
    v.
    MEMORANDUM*
    MERRICK B. GARLAND, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted June 8, 2022
    Seattle, Washington
    Before: GILMAN,** IKUTA, and MILLER, Circuit Judges.
    Gerardo Ortega-Hernandez, a native and citizen of Mexico, petitions for
    review of an order of the Board of Immigration Appeals affirming an immigration
    judge’s decision denying his application for asylum, withholding of removal, and
    protection under the Convention Against Torture (CAT). The Board also denied
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Ronald Lee Gilman, United States Circuit Judge for
    the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
    Ortega-Hernandez’s motion to remand his case to the immigration judge so that he
    could apply for cancellation of removal under 8 U.S.C. § 1229b. We have
    jurisdiction under 
    8 U.S.C. § 1252
    , and we deny the petition in part and dismiss it
    in part.
    We review the agency’s factual findings, including adverse credibility
    determinations, for substantial evidence. Iman v. Barr, 
    972 F.3d 1058
    , 1064 (9th
    Cir. 2020). We review the agency’s legal determinations de novo. B.R. v. Garland,
    
    26 F.4th 827
    , 835 (9th Cir. 2022).
    1. The Board determined that Ortega-Hernandez was ineligible for asylum
    because his claim was untimely. He does not seek review of that determination.
    As to the claim for withholding of removal, substantial evidence supports
    the Board’s conclusion that Ortega-Hernandez made inconsistent statements and
    that his testimony was not credible. The Board—and the immigration judge, whose
    decision the Board adopted—identified numerous inconsistencies in Ortega-
    Hernandez’s story regarding the timing of the threats he received, his return trips to
    Mexico, and his discussion of the police chief’s murder. Without credible
    testimony, Ortega-Hernandez did not satisfy his burden of proof for withholding of
    removal.
    We dismiss Ortega-Hernandez’s challenge to the denial of CAT relief.
    Ortega-Hernandez did not raise his CAT claim before the Board. Because he failed
    2
    to exhaust that claim before the agency, we lack jurisdiction to consider it.
    Vasquez-Rodriguez v. Garland, 
    7 F.4th 888
    , 894 (9th Cir. 2021).
    2. We reject Ortega-Hernandez’s challenges to the Board’s denial of his
    motion to remand. Under 8 U.S.C. § 1229b(b), the Attorney General may cancel
    the removal of certain aliens and adjust their status to that of lawful permanent
    residents. In 
    8 U.S.C. § 1252
    (a)(2)(B), Congress specified that “no court shall have
    jurisdiction to review . . . any judgment regarding the granting of relief under”
    various enumerated statutory provisions, including section 1229b, which permits
    cancellation of removal. In Patel v. Garland, the Supreme Court held that the
    statute’s jurisdiction-stripping provision “encompasses any and all decisions
    relating to the granting or denying of discretionary relief.” 
    142 S. Ct. 1614
    , 1621
    (2022) (internal quotation marks omitted). We assume, without deciding, that
    Patel’s holding applies to a motion to remand such as that at issue here. Even so,
    the jurisdiction-stripping statute contains an exception: It does not “preclud[e]
    review of constitutional claims or questions of law.” 
    8 U.S.C. § 1252
    (a)(2)(D).
    Ortega-Hernandez makes only constitutional or legal arguments. We therefore
    have jurisdiction to consider those arguments, but they lack merit.
    First, Ortega-Hernandez suggests that the Board violated due process by
    inadequately explaining its reasoning. The Board is not required to “engage in a
    lengthy discussion of every contention raised by a petitioner.” Hernandez v.
    3
    Garland, 
    52 F.4th 757
    , 768 (9th Cir. 2022). Instead, it need only provide an
    explanation of its decision that is sufficient to permit meaningful judicial review. It
    did so here.
    Second, Ortega-Hernandez challenges the Board’s determination that he
    failed to establish a prima facie case for cancellation of removal. To establish a
    prima facie case for cancellation of removal, an alien must show “that removal
    would result in exceptional and extremely unusual hardship” to a person with a
    qualifying relationship. 8 U.S.C. § 1229b(b)(1)(D). In his brief before the Board,
    Ortega-Hernandez was silent on that requirement, mentioning that he had a
    qualifying relationship to his spouse but offering no explanation—let alone any
    evidence—to suggest that she would suffer any “exceptional and extremely
    unusual hardship” as a result of his removal. In denying Ortega-Hernandez’s
    motion, the Board made a legal determination that in the absence of any allegations
    regarding a required element for cancellation of removal, an alien cannot establish
    a prima facie case for cancellation of removal. That determination was correct.
    The motion for administrative closure (Dkt. No. 29) is denied. See Sarkar v.
    Garland, 
    39 F.4th 611
    , 620 (9th Cir. 2022). The motion for a stay of removal (Dkt.
    No. 1) is denied. The temporary stay of removal is lifted.
    PETITION DENIED in part and DISMISSED in part.
    4
    

Document Info

Docket Number: 20-72272

Filed Date: 1/23/2023

Precedential Status: Non-Precedential

Modified Date: 1/23/2023