NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RAUL ZAVALA-ARREVALOS, AKA No. 10-72258
Raul Zavala,
Agency No. A091-734-069
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 10, 2014**
Phoenix, Arizona
Before: WALLACE, SILVERMAN, and M. SMITH, Circuit Judges.
Raul Zavala-Arrevalos (Zavala), a native and citizen of Mexico, petitions for
review of a decision of the Board of Immigration Appeals (BIA) denying his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
motion for remand.1 Because the parties are familiar with the facts and procedural
history of this case, we repeat only those facts necessary to resolve the issues
raised on appeal. We deny the petition for review.
The BIA did not err in denying Zavala’s motion for remand. Zavala argues
that his due process rights were violated because he was not competent to represent
himself in removal proceedings before the IJ. He asks for a new opportunity to
present evidence relating to his positive equities in support of his application for
cancellation of removal. More specifically, Zavala asserts that he would present
evidence concerning hardship to his son and wife due to his son’s expulsion from
school, which was caused by Zavala’s detention and absence.
To prevail on a due process claim, a petitioner must demonstrate error and
substantial prejudice. Lata v. I.N.S., 204 F.3d 1241, 1246 (9th Cir. 2000). We will
not presume prejudice. Id. Zavala fails to demonstrate substantial prejudice.
Zavala raises no argument concerning how the evidence he wishes to present
would offset his strong negative factors, including his extensive criminal history,
drug abuse, and lack of genuine rehabilitation. He merely argues that no showing
of prejudice is required, but we have squarely rejected this argument. See id.
1
The BIA also affirmed the Immigration Judge’s discretionary denial of
cancellation of removal. Because Zavala did not raise any challenge to the
discretionary denial in his opening brief, he has waived any such challenge. See
Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996).
In light of his failure to establish prejudice, Zavala’s due process claim fails.
Accordingly, the BIA did not err in denying Zavala’s motion for remand.2
PETITION DENIED.
2
Zavala filed an additional motion for remand after he filed the petition for
review. We deny the motion for remand because it raises the same issues and
requests the same relief as his petition for review. Additionally, the motion
impermissibly raises new facts not in the administrative record and new arguments
not raised before the BIA or in the opening brief. See 8 U.S.C. § 1252(b)(4)(A);
Martinez-Serrano, 94 F.3d at 1259–60; Fisher v. I.N.S., 79 F.3d 955, 963 (9th Cir.
1996) (en banc).