Manuel Lopez Gallardo v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL LOPEZ GALLARDO,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 16-70822
Agency No. A079-651-943
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 13, 2018**
Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
Manuel Lopez Gallardo, a native and citizen of Mexico, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) removal order. Our jurisdiction is governed by
8 U.S.C. § 1252. We review de novo questions of law. Najmabadi v. Holder, 597
* 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
MAR 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-70822
F.3d 983, 986 (9th Cir. 2010). We deny in part and dismiss in part the petition for
review.
Lopez Gallardo has waived any challenge to the agency’s denial of
cancellation of removal. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir.
2011) (issues not raised in an opening brief are waived).
Under the particular circumstances of this case, the BIA did not err or
violate due process when it did not address Lopez Gallardo’s appellate contention
regarding the opportunity to apply for asylum and related relief. See Lata v. INS,
204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a
due process claim). In the brief he submitted to the BIA, this contention refers to
an applicant with a different name, who would allegedly face persecution upon
deportation to Jamaica on account of mental illness and his resultant membership
in a disfavored group. In addition, the record indicates that Lopez Gallardo, after
consulting with counsel, chose not to apply for asylum or related relief before the
IJ.
We lack jurisdiction to consider Lopez Gallardo’s unexhausted contentions
that the IJ deprived him of his right to counsel and did not sufficiently inquire into
his fear of returning to Mexico. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir.

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3 16-70822
2010) (this court lacks jurisdiction to review contentions not raised before the
agency).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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