Adriana Duran-Nunez v. Merrick Garland

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADRIANA DURAN-NUNEZ
Plaintiff-Appellant,
v.
MERRICK GARLAND,
Defendant-Appellee.
No. 21-70908
Agency No. A201-152-324
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 7, 2022
Phoenix, Arizona
Before: WARDLAW and BUMATAY, Circuit Judges, and ZOUHARY,** District
Judge.
Concurrence by Judge BUMATAY.
Petitioner Adriana Duran-Nunez, a native of Mexico, last entered the United
States unlawfully in 2003. She came to the attention of immigration authorities in
February 2011 because of an altercation with her common-law husband. She was
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
FILED
SEP 29 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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arrested for domestic violence in violation of Ariz. Stat. §§ 13-1203(A)(1), 13-3601.
She agreed to a diversion program under Ariz. Stat. § 11-361 requiring her, among
other conditions, to attend anger-management classes. She successfully met the
conditions, and her case was dismissed with prejudice in June 2011.
This incident led to her removal proceeding in September 2017. She sought
cancellation of removal or, alternatively, voluntary departure. The Immigration
Judge (IJ) found her convicted of a “crime of domestic violence” under 8 U.S.C. §
1227(a)(2)(E), rendering her statutorily ineligible for cancellation of removal under
Section 240A(b)(1)(C) of the Immigration and Nationality Act (INA). The IJ denied
her application for cancellation of removal and granted her voluntary departure.
This case comes before this panel after several unsuccessful appeals. Duran-
Nunez now requests a remand to allow the Board of Immigration Appeals (BIA) to
reconsider her claims for cancellation of removal, and ineffective assistance of
counsel before an IJ. We are sympathetic to Duran-Nunez—a mother of four United
States citizens—with no other criminal history in the twenty years she has been in
this country. However, she fails to meet her required burden.
We have jurisdiction under 8 U.S.C. § 1252(a) and review de novo: (1)
whether the BIA applied the proper legal standard in determining whether a state
pre-plea agreement is a conviction for immigration purposes; and (2) due-process
claims based on ineffective assistance of counsel. See Cordoba v. Holder, 726 F.3d

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1106, 1113 (9th Cir. 2013); Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th
Cir. 2011).
1. Noncitizens seeking to cancel a lawful removal order bear the burden of
showing they have not been convicted of a disqualifying offense. Pereida v.
Wilkinson, 141 S. Ct. 754, 761 (2021). They cannot carry that burden when the
record is ambiguous. Id. Duran-Nunez argues the BIA overlooked the absence of a
guilty plea agreement when it found that a “conviction” exists for immigration
purposes. Under the INA:
(A) The term “conviction” means, with respect to an alien, a formal
judgment of guilt of the alien entered by a court or, if adjudication
of guilt has been withheld, where—
(i) a judge or jury has found the alien guilty or the alien has
entered a plea of guilty or nolo contendere or has admitted
sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or
restraint on the alien's liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A)-(B).
The Government asserts the definition is satisfied because Duran-Nunez
entered a plea of guilty as part of her deferred-prosecution agreement, pointing to
the BIA’s reliance on In re Punu, 22 I. & N. Dec. 224, 227–28 (BIA 1998). But this
case is distinguishable from Punu because Duran-Nunez agreed to a deferred
prosecution, not a deferred adjudication—a distinction with a difference. The
deferred-adjudication agreement in Punu required the respondent to plead guilty or

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no contest. 22 I. & N. Dec. at 228 (“[T]he court may, after receiving a plea of guilty
. . . defer further proceedings without entering an adjudication of guilt”). Duran-
Nunez’s deferred-prosecution agreement contains no such requirement.
The most recent BIA denial found the state-court documents indicate Duran-
Nunez entered a guilty plea, but the record contains ambiguous, inconsistent
evidence of any such plea. For example, the municipal-court docket reflects that
Duran-Nunez “accepted [a] Rule 38 plea.” See Ariz. R. Crim. P. 38.1(a) (2011).
Inconsistent with the BIA’s reading, a Rule 38 deferred prosecution would not be an
option if a guilty plea had been entered. Further, the “Plea:” field is blank throughout
the municipal record, suggesting the court never entered a guilty plea. The BIA and
the Government point to one paragraph in the agreement to argue a guilty plea was
entered: “if the Defendant does not successfully complete the above-stated
conditions, then the Court shall accept the guilty plea.”
But there is more. The statutory requirement of a “conviction” may be met
another way: admission of sufficient facts to warrant a finding of guilt. The BIA
cites to the IJ order and municipal-court docket, finding guilt because she “appeared
before a judge, the charge was discussed, resolution was reached, and she was
ordered to attend anger management courses, . . . or she would have a conviction.”
Under the BIA’s analysis, most, if not all, deferred-prosecution agreements would
satisfy this “conviction” requirement. We have found it “rational to believe that

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someone who was arrested [], charged, and then sent to a diversion program in lieu
of prosecution had in fact committed [the] offense.” de Jesus Melendez v. Gonzales,
503 F.3d 1019, 1026 (9th Cir. 2007) (determining that a prior offense where
defendant entered a diversion program with no guilty plea disqualified defendant
from certain removal protections). Because deferred-prosecution agreements have
not been held per se “convictions,” the Board reviewing Duran-Nunez’s appeal
improperly made this leap. See In re Mohamed, 27 I. & N. Dec. 92 (BIA 2017)
(finding a deferred prosecution-agreement similar to Duran-Nunez’s was brought
within the definition of a conviction because of respondent’s sworn admission of
guilt to every element of the charged crime).
However, the BIA ultimately came to the right conclusion. In Pereida, the
Supreme Court examined a cancellation-of-removal case where the state-court
record was ambiguous on whether petitioner was convicted of violating a subsection
of the criminal statute. 141 S. Ct. 754. The Court held noncitizens bear the burden
of establishing they are entitled to relief. Id. at 761. As such, any ambiguity in the
conviction record works against Duran-Nunez. See Marinelarena v. Garland, 6
F.4th 975, 978 (9th Cir. 2021).
The burden was on Duran-Nunez to show she was not convicted of a
disqualifying crime. The IJ concluded Duran-Nunez “failed in that burden by her

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own testimony [and] with supporting documents from the court.” Her own sworn
testimony was:
[S]he had an argument with her partner, . . . and she slapped him. He
called the police, the police arrived, she was taken to jail, and was
charged a misdemeanor, domestic violence . . . . She [] appeared in
court and spoke with the judge. The judge imposed upon her a
requirement that she attend anger-management classes.
With this record, the IJ found Duran-Nunez admitted to the act leading to her
assault charge. She offers no evidence that her admission does not amount to
admission of sufficient facts to warrant a finding of guilt. Duran-Nunez argues she
cannot be expected to prove a negative, but her legal hurdles do not exist in a vacuum
and are not arbitrarily imposed upon her. She was charged with a disqualifying
crime, at which point the burden flipped to her to prove eligibility to remain in the
United States. See Pereida v. Wilkinson, 141 S. Ct. at 761. The absence of any
evidence proving her eligibility for cancellation of removal—let alone clear
evidence—results in her failing to meet her burden, and the Government prevails.
2. Duran-Nunez next argues ineffective assistance of counsel. Duran-Nunez
must prove counsel’s conduct in the removal proceeding was “egregious” and
caused “substantial prejudice.” Hernandez-Ortiz v. Garland, 32 F.4th 794, 801 (9th
Cir. 2022). Duran-Nunez cannot show substantial prejudice. A non-citizen seeking
reopening bears the “heavy burden” of showing that, if removal proceedings were
reopened, “the new evidence offered would likely change the result in the case.” In

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re S-Y-G, 24 I. & N. Dec. 247, 251 (BIA 2007) (citing In re Coelho, 20 I. & N. Dec.
464, 473 (BIA 1992)). Although her former counsel failed to place the municipal-
court docket in evidence, as stated above, the docket fails to prove she did not admit
to the underlying charge—and is confusing at best. At oral argument, Duran-
Nunez’s current counsel confirmed no other documents exist to supplement the
record. With nothing additional, the ambiguous record cannot be improved to
support her requested relief and she cannot show prejudice.
PETITION DENIED.

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No. 21-70908, Duran-Nunez v. Garland
BUMATAY, Circuit Judge, concurring:
I concur in the judgment.
FILED
SEP 29 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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