Jose Mario Nolasco Hernandez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MARIO NOLASCO HERNANDEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1925
Agency No.
A090-169-780
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2023**
Pasadena, California
Before: RAWLINSON, HURWITZ, and OWENS, Circuit Judges.
Jose Mario Nolasco Hernandez (Nolasco Hernandez), a native and citizen of
El Salvador, petitions for review of a decision of the Board of Immigration
Appeals (BIA) affirming, without opinion, an order of an Immigration Judge (IJ)
* 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
NOV 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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denying his application for a waiver of inadmissibility under former section 212(c)
of the Immigration and Nationality Act.1 We have jurisdiction under 8 U.S.C.
§ 1252, and we deny Nolasco Hernandez’s petition for review.
In general, “[d]iscretionary decisions, including whether or not to grant
§ 212(c) relief, are not reviewable.” Vargas-Hernandez v. Gonzales, 497 F.3d 919,
923 (9th Cir. 2007) (citation omitted). However, we “have jurisdiction to review
whether the IJ considered relevant evidence in making [his] decision.” Szonyi v.
Barr, 942 F.3d 874, 896 (9th Cir. 2019), as amended (citation omitted). We
review whether the IJ considered “all favorable and unfavorable factors bearing on
[Nolasco Hernandez’s] application for § 212(c) relief” for an abuse of discretion.
Id. (citation omitted).
The IJ applied the correct legal standard and sufficiently considered the
relevant factors in denying Nolasco Hernandez’s application for a waiver of
inadmissibility. See Vargas-Hernandez, 497 F.3d at 923-24 (explaining that
“[w]here [a noncitizen] has committed a particularly grave criminal offense, he
may be required to make a heightened showing that his case presents unusual or
outstanding equities”) (citation omitted). The IJ recognized that Nolasco
Hernandez “possess[ed] positive equities, including: his nearly forty-year-
1 “Where, as here, the BIA affirms the IJ’s decision without opinion, we review the
decision of the IJ as if it were that of the BIA. . . .” Cardenas-Delgado v. Holder,
720 F.3d 1111, 1114 (9th Cir. 2013) (citation omitted).

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residence in the United States; his five U.S.-citizen siblings, all of whom reside in
the United States; his work history as a dishwasher for twenty years; and his lack
of criminal history for approximately thirty years,” and “consider[ed] the
emotional and financial hardship that [Nolasco Hernandez] and his siblings would
face if he were removed to El Salvador.” The IJ ultimately determined that, due to
Nolasco Hernandez’s conviction for assault with intent to commit rape of a minor
and Nolasco Hernandez’s failure “to demonstrate sufficient rehabilitation of [his]
very disturbing criminal history,” discretionary relief from removal was
unwarranted.
Although Nolasco Hernandez maintains that the IJ did not consider certain
positive factors in balancing the equities, the IJ explained that he “considered all of
the testimonial and documentary evidence in adjudicating [Nolasco Hernandez’s]
applications for relief from removal regardless of whether it [was] specifically
referred to in [his] decision.” Nolasco Hernandez does not demonstrate that the IJ
failed to consider any “significant factor[s]” supporting his application, Xiao Fei
Zheng v. Holder, 644 F.3d 829, 834 (9th Cir. 2011) (citation omitted), and we
presume that the IJ “considered all relevant factors” in denying the waiver of
inadmissibility. Szonyi, 942 F.3d at 897.2
2 Nolasco Hernandez waived any challenge to the IJ’s denial of protection under
the Convention Against Torture because he did not “address [this] claim[ ] in his

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PETITION FOR REVIEW DENIED.
opening brief.” Escobar Santos v. Garland, 4 F.4th 762, 764 n.1 (9th Cir. 2021)
(citation omitted).

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