Leopoldo Villalba-Franco v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEOPOLDO VILLALBA-FRANCO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-72712
Agency No. A206-150-562
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 12, 2021**
Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
Leopoldo Villalba-Franco, 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 decision denying his application for cancellation of
removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo
* 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).
FILED
OCT 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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questions of law, including claims of due process violations in immigration
proceedings. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny
in part and dismiss in part the petition for review.
Villalba-Franco’s claim that the agency violated his right to due process by
declining to permit expert witness testimony fails where he has not established
prejudice from any alleged violation. See Lopez-Umanzor v. Gonzales, 405 F.3d
1049, 1056-58 (9th Cir. 2005) (to prevail on due process grounds, the noncitizen
must establish the proceeding was so fundamentally unfair that he was prevented
from reasonably presenting his case and he suffered prejudice from the violation).
We otherwise lack jurisdiction to review the agency’s discretionary
determination that Villalba-Franco did not show exceptional and extremely
unusual hardship to a qualifying relative for purposes of cancellation of removal,
where Villalba-Franco’s remaining challenges to the determination do not raise a
colorable legal or constitutional claim over which we retain jurisdiction. See
8 U.S.C. § 1252(a)(2)(B)(i), (D); Martinez-Rosas v. Gonzales, 424 F.3d 926, 930
(9th Cir. 2005). Villalba-Franco’s reliance on Guerrero-Lasprilla v. Barr, –––
U.S. ––––, 140 S. Ct. 1062 (2020), is misplaced. See Ramadan v. Gonzales, 479
F.3d 646, 650 (9th Cir. 2007) (application of a legal standard to undisputed facts is
a legal question under 8 U.S.C. § 1252(a)(2)(D)); see also Mendez-Castro v.
Mukasey, 552 F.3d 975, 979 (9th Cir. 2009) (Ramadan does not apply to the

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subjective hardship standard).
Villalba-Franco’s contention that jurisdiction did not vest with the
immigration court due to the missing information in his Notice to Appear is
foreclosed by Aguilar Fermin v. Barr, 958 F.3d 887, 895 (9th Cir. 2020) (“[T]he
lack of time, date, and place in the NTA sent to [petitioner] did not deprive the
immigration court of jurisdiction over her case.”).
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.

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