PEDRO LUIS MELCHOR MENDEZ, AKA Florencio Fructoso Ramirez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO LUIS MELCHOR MENDEZ, AKA
Florencio Fructoso Ramirez,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-72126
Agency No. A078-241-262
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 25, 2023**
San Francisco, California
Before: BUMATAY, KOH, and DESAI, Circuit Judges.
Pedro Luis Melchor Mendez, a native and citizen of Mexico, petitions for
review of a decision by the Board of Immigration Appeals (“BIA”) affirming the
Immigration Judge’s (“IJ”) order denying his application for cancellation of
* 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
AUG 29 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
removal, withholding of removal, voluntary departure, and protection under the
Convention Against Torture (“CAT”).1 We have jurisdiction under 8 U.S.C. § 1252,
and we deny the petition in part and remand to the agency for further proceedings.
1. The IJ pretermitted Melchor’s application for cancellation of removal
because he failed to establish continuous physical presence in the United States for
ten years. The BIA considered Melchor’s application de novo and denied
cancellation of removal in its discretion based on a range of equitable factors.
Melchor argues that he was only allowed to introduce testimony about his ten-year
physical presence, and the BIA’s discretionary decision violates due process. The
Government concedes that remand is appropriate to provide Melchor an opportunity
to testify about the complete factual background of his case. We agree that Melchor
should have that opportunity, and remand for further proceedings. See Flores-
Rodriguez v. Garland, 8 F.4th 1108, 1113 (9th Cir. 2021) (“If an IJ’s actions prevent
the introduction of ‘significant testimony,’ that generally violates due process.”
(quoting Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1056 (9th Cir. 2005))).
Melchor also argues that the BIA erred by failing to address his appeal of the
1 Melchor conceded before the IJ that an application for asylum would be
untimely; waived his CAT and voluntary departure claims by failing to appeal them
to the BIA, see Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004); and waived
any challenge to the agency’s denial of his application for withholding of removal
by failing to raise it in his opening brief, see Christian Legal Soc’y Chapter of Univ.
of Cal. v. Wu, 626 F.3d 483, 485 (9th Cir. 2010).

-- 2 of 3 --

3
IJ’s reasoning for pretermission. Given that we remand on this issue, we need not
reach this issue.
2. Before the BIA, Melchor argued that his Notice to Appear (“NTA”) did
not confer jurisdiction on the immigration court because it did not contain the time
and date of his initial hearing. In United States v. Bastide-Hernandez, this court
ruled that “the failure of an NTA to include time and date information does not
deprive the immigration court of subject matter jurisdiction.” 39 F.4th 1187, 1188
(9th Cir. 2022) (en banc).
DENIED IN PART, REMANDED IN PART.

-- 3 of 3 --