JOSE EDGAR GUEVARA, AKA Joe Guevara, AKA Jose Guevara Villaneva v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE EDGAR GUEVARA, AKA Joe
Guevara, AKA Jose Guevara Villaneva,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 16-73456
Agency No. A094-302-404
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2022**
San Francisco, California
Before: S.R. THOMAS and BENNETT, Circuit Judges, and DORSEY,*** District
Judge.
FILED
NOV 22 2022
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).
*** The Honorable Jennifer A. Dorsey, United States District Judge for
the District of Nevada, sitting by designation.

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Jose Edgar Guevara, a native and citizen of El Salvador, petitions for review
of a Board of Immigration Appeals (“BIA”) decision denying his appeal from an
immigration judge’s (“IJ”) decision finding Guevara removable and denying his
application for cancellation of removal under 8 U.S.C. § 1229b(a). In the context
of cancellation, we have jurisdiction to review questions of law, but we may not
review the IJ’s or BIA’s findings of fact. 8 U.S.C. §§ 1252(a)(2)(B)(i), (D). When
a petitioner failed to raise a due process challenge below, we generally “retain
jurisdiction” to consider that challenge, but “we may not entertain due process
claims based on correctable procedural errors unless the [petitioner] raised them
below.” Agyeman v. Immigr. & Naturalization Serv., 296 F.3d 871, 877 (9th Cir.
2002). We review questions of law de novo. Ridore v. Holder, 696 F.3d 907, 911
(9th Cir. 2012). Because the parties are familiar with the factual and procedural
history of the case, we need not recount it here. We dismiss in part and deny in
part the petition for review.
I
We lack jurisdiction to consider Petitioner’s due process arguments that the
IJ misstated Guevara’s statute of removability and his plea in criminal court.
Petitioner made neither argument below, and both alleged errors were procedural
and correctable by the BIA. Agyeman, 296 F.3d at 877; see also Barron v.
2

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Ashcroft, 358 F.3d 674, 676–78 (9th Cir. 2004) (we could not review petitioners’
claims not raised below that the IJ denied them the opportunity to present their case
when the IJ proceeded to hear their case even though their attorney failed to appear
for their hearing). We therefore dismiss this part of the petition.
II
We also lack jurisdiction to consider Petitioner’s argument that the BIA
made factual errors when finding that Petitioner was not “admitted” to the United
States. 8 U.S.C. § 1252(a)(2)(B)(i). We therefore also dismiss this part of the
petition.
Insofar as the BIA’s decision states that Guevara was not admitted “in any
status” in 1995 because, at that time, Guevara entered without authorization, the
decision was legally erroneous. See Saldivar v. Session, 877 F.3d 812, 815–19
(9th Cir. 2017) (holding that “in any status” means in any status, whether lawful or
unlawful). However, any error was harmless. As discussed above, this Court may
not disturb the BIA’s determination that Guevara was not admitted for cancellation
purposes, so Guevara cannot show he is eligible for cancellation of removal. We
therefore deny this part of the petition.
PETITION DISMISSED in part and DENIED in part.
3

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