Miguel Contreras-Marin v. William Barr

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MIGUEL CONTRERAS-MARIN, AKA No. 17-73231 Miguel Contreras-Martin, Agency No. A206-548-362 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 4, 2020 Portland, Oregon Before: FERNANDEZ and PAEZ, Circuit Judges, and BURGESS,** District Judge. Miguel Contreras-Marin (“Contreras-Marin”), a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’s (“BIA”) final order of removal. The Department of Homeland Security charged him as * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Timothy M. Burgess, United States Chief District Judge for the District of Alaska, sitting by designation. removeable from the United States in November 2013. He subsequently filed for cancellation of removal, arguing that the hardship caused by his deportation to his family would be exceptional and extremely unusual. The Immigration Judge (“IJ”) denied his petition because Contreras-Marin had failed to establish the requisite level of hardship. Contreras-Marin appealed to the BIA. He argued that the IJ had erred in the hardship finding and filed a motion to remand because his attorney had provided ineffective assistance of counsel in the removal proceeding. The BIA affirmed the IJ’s denial of cancellation of removal and denied the motion to remand because Contreras-Marin had failed to identify how his counsel’s deficient performance had impacted the result of his hearing. We grant the petition in part, deny it in part, and remand. 1. Contreras-Marin argues that the IJ and BIA did not have jurisdiction over his case because the Notice to Appear he received was defective. This argument is foreclosed by Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019). He received a later notice that contained the time and date of his hearing, which is sufficient for jurisdiction to vest. See id. at 1159–60. 2. A migrant charged with removability from the United States may petition for cancellation of removal if he demonstrates, among other things, that removal “would result in exceptional and extremely unusual hardship to the alien’s spouse, 2 parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D). Contreras-Marin has five relatives who qualify for consideration under the exceptional-and-extremely unusual hardship determination: three children under the age of twenty-one (U.S. citizens), his father (U.S. citizen), and his mother (lawful permanent resident). In affirming and adopting the IJ’s denial of Contreras-Marin’s application for cancellation-of-removal petition, the BIA stated: Contrary to [Contreras-Marin’s] assertions on appeal, the hardship to each qualifying relative cannot be combined to meet the exceptional and extremely unusual standard. The analysis is only cumulative inasmuch as all hardships of a qualifying relative are aggregated to determine whether that relative would experience hardship that is exceptional and extremely unusual in ...

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