MELGOZA ENRIQUEZ v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.

Jose Arturo MELGOZA ENRIQUEZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 20-70515

Decided: June 29, 2021

Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges. Bernal Peter Ojeda, Esquire, Attorney, Law Offices of Bernal Peter Ojeda, The Westlake Office, Westlake Village, CA, for Petitioner Andrew Nathan O'Malley, Trial Attorney, DOJ - U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for Respondent

MEMORANDUM **

Jose Arturo Melgoza Enriquez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge's (“IJ”) decision ordering him removed. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo claims of due process violations in immigration proceedings. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir. 2008). We deny in part and dismiss in part the petition for review.

In his counseled opening brief, Melgoza Enriquez does not raise any challenge to the agency's determination that he was convicted of a crime of violence aggravated felony and that the record did not support his contention that he was deprived of an appropriate opportunity to review the evidence in this case. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in a party's opening brief are waived).

The BIA did not err in concluding the IJ did not violate Melgoza Enriquez's right to due process by proceeding in the absence of a waiver of counsel at his hearing on October 11, 2019. See Arrey v. Barr, 916 F.3d 1149, 1158 (9th Cir. 2019) (concluding the IJ did not violate the applicant's right to counsel where the applicant was provided “reasonable time to locate counsel”); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim).

To the extent Melgoza Enriquez contends the IJ failed to adequately develop the record, failed to act as a neutral factfinder, or otherwise violated his right to due process, we lack jurisdiction to consider these issues because he failed to raise them to the BIA. See Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002) (“[W]e may not entertain due process claims based on correctable procedural errors unless the alien raised them below.”).

The temporary stay of removal remains in place until issuance of the mandate. The motion for a stay of removal is otherwise denied.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.