Roberto A Cardoza Alfaro v. Merrick B. Garland, U.S. Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Roberto A Cardoza Alfaro,
Petitioner,
v.
Merrick B. Garland, U.S. Attorney General,
Respondent.
No. 21-766
Agency No. A209-292-617
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2023**
San Francisco, California
Before: S.R. THOMAS, MILLER, and SANCHEZ, Circuit Judges.
Roberto Antonio Cardoza Alfaro, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his
FILED
FEB 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
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asylum, withholding of removal, and Convention Against Torture (“CAT”) claims
and the denial of his motion to remand for consideration of new evidence. We
have jurisdiction under 8 U.S.C. § 1252(a)(1), (b)(6). We review de novo a due
process claim. Benedicto v. Garland, 12 F.4th 1049, 1058 (9th Cir. 2021). We
review for abuse of discretion the denial of a motion to remand. Taggar v. Holder,
736 F.3d 886, 889 (9th Cir. 2013). We deny the petition.1
I
The BIA did not violate Cardoza Alfaro’s due process rights. “The BIA’s
decision will be reversed on due process grounds if (1) the proceeding was so
fundamentally unfair that the alien was prevented from reasonably presenting his
case, and (2) the alien demonstrates prejudice, which means that the outcome of the
proceeding may have been affected by the alleged violation.” Ibarra-Flores v.
Gonzales, 439 F.3d 614, 620–21 (9th Cir. 2006) (internal quotation marks and
citations omitted).
Cardoza Alfaro argues that the BIA violated his due process rights when it
declined to hold his appeal in abeyance pending resolution of his motion to remand
and determined that he waived his challenges to the IJ’s rulings by failing to
1 We also deny the motion to stay removal (Docket No. 4). The
temporary stay of removal is lifted.
2
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submit a brief on the merits. However, Cardoza Alfaro has not demonstrated that
his proceeding was fundamentally unfair.
The BIA adequately afforded Cardoza Alfaro the opportunity to submit a
brief appealing the aspects of the IJ’s ruling with which he disagreed, but Cardoza
Alfaro did not do so. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 822 (9th Cir.
2003) (no due process violation where the failure to submit a brief was due to
counsel’s error and not the BIA’s error). In addition, Cardoza Alfaro’s notice of
appeal was not sufficiently detailed to put the BIA on notice of the issues on
appeal. See Singh v. Ashcroft, 361 F.3d 1152, 1157 (9th Cir. 2004) (summary
dismissal appropriate where noncitizen failed to file a brief when he indicated he
would on the appeal form and his notice of appeal failed to describe grounds for
appeal with requisite specificity). And the BIA expressly told Cardoza Alfaro that
the agency would address the merits of his appeal and the motion to remand at the
same time. In short, the BIA did not violate Cardoza Alfaro’s due process rights
because Cardoza Alfaro had an adequate opportunity to submit a brief on the
merits to the BIA or otherwise preserve the issues in his appeal.
II
The BIA did not abuse its discretion in denying the remand motion. A
noncitizen seeking remand must prove that “the new evidence would likely change
3
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the result in the case.” Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008). The
BIA properly determined that the additional evidence Cardoza Alfaro obtained
from the Salvadoran criminal trial did not warrant remand. The evidence of the
trial and conviction of Cardoza Alfaro’s co-defendants does not tend to exonerate
Cardoza Alfaro and on balance supports the IJ’s determination that the serious
nonpolitical crime bar applied here. As a result, the additional evidence would not
“likely change the result in the case,” id., and the BIA did not abuse its discretion
in denying the motion to remand.
PETITION DENIED.
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