FILED
NOT FOR PUBLICATION
DEC 05 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN NUNEZ ESCAMILLA, No. 13-73299
Petitioner, Agency No. A091-635-657
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 8, 2016
Pasadena, California
Before: WARDLAW and BYBEE, Circuit Judges, and BELL,** District Judge.
Juan Núñez Escamilla (“Núñez”), a native and citizen of Mexico, petitions
for review of the decision of the Board of Immigration Appeals (“BIA”) affirming
the Immigration Judge’s (“IJ”) removal order and denial of Núñez’s application for
cancellation of removal. Because “the BIA adopt[ed] the decision of the IJ” in its
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert Holmes Bell, United States District Judge for
the Western District of Michigan, sitting by designation.
entirety, “we review the IJ’s decision as if it were that of the BIA.” Hoque v.
Ashcroft, 367 F.3d 1190, 1194 (9th Cir. 2004) (citation omitted). We have
jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition for review.
1. The Government argues that we lack jurisdiction over the IJ’s order of
removal because it was a discretionary decision based on a criminal conviction.
See 8 U.S.C. §§ 1252(a)(2)(B), (C). However, we have jurisdiction over the final
order because Núñez raises a constitutional claim. See 8 U.S.C. § 1252(a)(2)(D);
Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012).
2. Núñez argues that the IJ violated his Fifth Amendment due process rights by
denying him a “full and fair hearing.” See Dent v. Holder, 627 F.3d 365, 373 (9th
Cir. 2010). He asserts that the IJ denied him a reasonable opportunity to present
evidence by allowing him only 34 days to develop his case between his initial
appearance and his final hearing. See Reyes-Melendez v. I.N.S., 342 F.3d 1001,
1006 (9th Cir. 2003).
Reviewing de novo the BIA’s denial of Núñez’s due process claim, see
Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014), we do not agree that Núñez’s
due process rights were violated. Even if Núñez is correct that the “proceeding
was so fundamentally unfair that [he] was prevented from reasonably presenting
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his case,” he cannot prevail because he failed to demonstrate prejudice. See
Vilchez, 682 F.3d at 1199 (citation omitted).
The IJ considered the positive equities asserted by Núñez, and additional
evidence may have enhanced these equities. However, the adverse factors cited by
the IJ would have outweighed them, even if Núñez had obtained the evidence he
speculates would have supported his claim. See Zolutukhin v. Gonzales, 417 F.3d
1073, 1076–77 (9th Cir. 2005); Agyeman v. I.N.S., 296 F.3d 871, 884–85 (9th Cir.
2002). As the IJ noted, Núñez had three criminal convictions for possession of
methamphetamine, including one in 2011 and another in 2012. The IJ found that
Núñez had neither accepted responsibility for the offenses nor rehabilitated himself
from his methamphetamine problems, failing to complete court-ordered drug
classes and continuing to use methamphetamine during his probation. In addition,
Núñez failed to pay taxes, though he testified that he made enough money to incur
tax liability. He also drove for several years on a restricted license.
Núñez contends that additional time might have allowed him to gather
testimony and letters from family members and former employers, as well as a
copy of his General Educational Development (GED) certificate. However,
Núñez’s own testimony established that he was not close to his family. By his own
admission, he saw his two brothers only on Christmas and New Year’s Eve.
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Though he testified that at one point he saw his mother and sister weekly, in recent
years he saw them on “average once a month.” Moreover, the IJ stated that
Núñez’s attainment of his GED would have received “minimal weight” even if he
had been able to produce the certificate. In addition, any testimony about Núñez’s
good character would have been outweighed by his significant adverse factors.
Finally, Núñez’s own son was born in Mexico, and continues to reside there, to the
best of his knowledge.
Because Núñez cannot establish that he suffered prejudice, we decline to
reach his contention that the “proceeding was so fundamentally unfair that [he] was
prevented from reasonably presenting his case.” See Vilchez, 682 F.3d at 1199.
PETITION FOR REVIEW DENIED.
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