NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR PEREZ-CUEVAS, No. 16-72897
Petitioner, Agency No. A205-155-330
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 14, 2021**
Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.
Hector Perez-Cuevas, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order denying his motion to remand
and dismissing his appeal from an immigration judge’s (“IJ”) decision denying his
applications for adjustment of status and withholding of removal. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law,
including claims of due process violations in immigration proceedings. Jiang v.
Holder, 754 F.3d 733, 738 (9th Cir. 2014). We also review de novo the legal
question of whether a particular social group is cognizable, except to the extent
that deference is owed to the BIA’s interpretation of the governing statutes and
regulations. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We
deny the petition for review.
Perez-Cuevas does not challenge, and therefore abandons, any challenge to
the BIA’s denial of his motion to remand for clarification or correction of the IJ’s
decision. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996)
(“Issues raised in a brief that are not supported by argument are deemed
abandoned.”).
As to Perez-Cuevas’s application for adjustment of status, the BIA did not
err in concluding that his conviction under California Health & Safety Code
(“CHSC”) § 11377(a) is a controlled substance violation that renders him
ineligible. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1255(a); Coronado v. Holder, 759
F.3d 977, 984-86 (9th Cir. 2014) (holding that CHSC § 11377(a) is divisible with
regard to substance and concluding that “[w]here the minute order or other equally
reliable document specifies that a defendant pleaded guilty to a particular count of
a criminal complaint, the court may consider the facts alleged in the complaint.”
2 16-72897
(internal citation omitted)). Although Perez-Cuevas contends the record is
inconclusive as to the controlled substance, he does not benefit under this argument
because it is his burden to establish his eligibility for adjustment of status. See
Pereida v. Wilkinson, 141 S. Ct. 754, 766 (2021) (an applicant for relief from
removal cannot establish eligibility where a conviction record is inconclusive as to
which elements of a divisible statute formed the offense).
Perez-Cuevas’s contentions the BIA erred in concluding the IJ did not
violate his right to due process by cancelling a scheduled hearing and instead
issuing a written decision fail. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.
2000) (requiring prejudice to prevail on a due process claim).
As to Perez-Cuevas’s application for withholding of removal, the BIA did
not err in concluding that he failed to establish membership in a cognizable
particular social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016)
(in order to demonstrate membership in a particular social group, “[t]he applicant
must ‘establish that the group is (1) composed of members who share a common
immutable characteristic, (2) defined with particularity, and (3) socially distinct
within the society in question’” (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227,
237 (BIA 2014))).
Perez-Cuevas contends the BIA erred in concluding the IJ did not violate his
right to due process by cancelling a scheduled hearing and issuing a written
3 16-72897
decision and that he was prejudiced by the BIA declining to consider sources
referenced in his brief and concluding the sources were not submitted to or
otherwise considered by the IJ. These contentions fail because Perez-Cuevas did
not establish prejudice. See Lata, 204 F.3d at 1246 (9th Cir. 2000).
Thus, Perez-Cuevas’s withholding of removal claim fails.
PETITION FOR REVIEW DENIED.
4 16-72897