NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAY 25 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DOLORES ARIAS MENDOZA DE No. 10-70488
CUEVAS, AKA Dolorez Mendoza
Violeta, AKA Delores Mendoza-Arias de Agency No. A075-616-477
Cuevas,
Petitioner, MEMORANDUM*
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
DOLORES ARIAS MENDOZA DE No. 13-70679
CUEVAS, AKA Dolorez Mendoza
Violeta, AKA Delores Mendoza-Arias de Agency No. A075-616-477
Cuevas,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 18, 2016**
Pasadena, California
Before: PREGERSON, TALLMAN, and BEA, Circuit Judges.
Dolores Mendoza de Cuevas petitions for review of a Board of Immigration
Appeals (“BIA”) order denying a motion to remand for reconsideration of her
order of removal, and of an order denying her subsequent motion to reopen
proceedings. We review the BIA’s denial of Petitioner’s motion to remand for
abuse of discretion. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005).
We review the BIA’s denial of Petitioner’s motion to reopen for abuse of
discretion and we review legal questions de novo. Cano-Merida v. INS, 311 F.3d
960, 964 (9th Cir. 2002). We deny the petition.
Petitioner moved the BIA to remand her case to the immigration judge to
determine whether, following de Rodriguez-Echeverria v. Mukasey, 534 F.3d
1047, 1051 (9th Cir. 2008), which held that an alien is deemed under arrest when
she is held for questioning, statements that Petitioner made to border patrol agents
were inadmissible because she was not advised of her Miranda rights. The BIA
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
did not abuse its discretion when it found that remand was unnecessary because
Petitioner was advised of her rights when she was served with a Notice to Appear
in formal removal proceedings. Under Samayoa-Martinez v. Holder, 558 F.3d
897, 901 (9th Cir. 2009), the DHS is not required to advise aliens of their right to
counsel or of the admissibility of their statements until aliens are placed in formal
removal proceedings.
The BIA also denied Petitioner’s motion to reopen proceedings to consider
her eligibility for special rule cancellation of removal under 8 U.S.C. §
1229b(b)(2), which provides for the cancellation of removal for an alien who “has
been battered or subjected to extreme cruelty by a spouse . . . who is or was a
United States citizen” or lawful permanent resident. The BIA’s denial of
Petitioner’s motion was not an abuse of discretion because the BIA’s conclusion
that Petitioner had not proved that her abusive former spouse was a United States
citizen or permanent resident was not illogical, implausible, or without support in
inferences that can be drawn from the record. Nor did the BIA abuse its discretion
when it found that Petitioner’s motion to reopen to file an application for asylum
relief was filed untimely where she did not provide evidence of materially changed
circumstances or conditions arising in Mexico to invoke the exception under 8
U.S.C. § 1229a(c)(7)(C)(ii).
3
Therefore, the petition is DENIED.
4
FILED
De Cuevas v. Lynch, Nos. 10-70488 & 13-70679
MAY 25 2016
Pregerson, J., dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I dissent. Dolores Mendoza De Cuevas should not be considered an
enforcement priority. See Jeh Charles Johnson, Secretary of Homeland Security,
Re: Policies for the Apprehension, Detention, and Removal of Undocumented
Immigrants, 4–5 (Nov. 20, 2014).
Here, we have a lawful permanent resident, brought to America when she
was two, raised here, and schooled here, and whose ties to the U.S. are deep and
enduring. Her only extended absence happened when an abusive boyfriend
kidnapped her—sixteen, pregnant, and child in tow—to a small town in Mexico
where his abusive behavior continued for years. She was eventually able to free
herself and return home with the help of her family, almost all of whom are U.S.
citizens. Her father is a citizen, her two siblings are citizens, and her husband is a
citizen. Of her five children, four are citizens, and she has at least two grand
children who are citizens as well.
Even though her current case deals with alien smuggling, she was not
criminally charged and this appears to be an isolated incident. She is employed; she
has paid taxes since 2001; she has no other criminal history; and she has no history
of prior removals, orders of removal, or denials of status. Dolores Mendoza De
Cuevas poses no threat to this country’s national or public security. Yet, after
living in the United States for more than 40 years, she will be removed.
I believe that such a tragic result is against equity and good conscience—that
is why I dissent.