ALFONSO ESPINOZA LARA, AKA Roberto Vargas v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFONSO ESPINOZA LARA, AKA
Roberto Vargas,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-71594
Agency No. A205-022-807
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2021**
San Francisco, California
Before: BERZON, MURGUIA, and CHRISTEN, Circuit Judges.
Alfonso Espinoza Lara, a native and citizen of Mexico, seeks review of a
final order of the Board of Immigration Appeals (“BIA”) dismissing Espinoza’s
appeal of the Immigration Judge’s (“IJ”) denial of cancellation of removal.
* 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
APR 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Espinoza argues that his due process rights were violated. We review due process
challenges in immigration proceedings de novo. Jiang v. Holder, 754 F.3d 733,
738 (9th Cir. 2014). We deny the petition for review.
1. The timing of the IJ’s decision to deny cancellation of removal did not
violate Espinoza’s procedural due process rights. First, the timing did not affect
the substance of Espinoza’s cancellation of removal hearing. Espinoza received a
fair hearing and was able to “reasonably present[] his case” in full before the IJ and
BIA. Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th Cir. 2006) (internal
quotations and citations omitted). Further, because the internal memorandum is an
“internal directive[] [that does] not hav[e] the force and effect of law,” Romeiro de
Silva v. Smith, 773 F.2d 1021, 1025 (9th Cir. 1985), the Operative Policies and
procedures memorandum (“OPPM”) on which Espinoza relies does not create due
process rights for Espinoza. See James v. U.S. Parole Comm’n, 159 F.3d 1200,
1205 (9th Cir. 1998); Cancellation of Removal or Suspension of Deportation That
Are Subject to the Cap, Operating Policies and Proc. Mem. 17-04, 2017 WL
6766314 (Dec. 20, 2017).1
Second, the timing of the IJ’s decision denying cancellation of removal did
1 We do not consider whether the 1998 Rule, rather than the 2017 Rule, applies to
Espinoza and creates any enforceable rights, see 82 Fed. Reg. 57,336 (codified at 8
C.F.R. § 1240.21), because he did not raise that issue before the agency. Instead,
he relied only on the OPPM. See Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020).

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not prejudice Espinoza. The IJ’s denial of cancellation of removal was decided on
the merits. Nothing in the record indicates that the IJ’s decision would have been
different had he issued his decision later. See Ibarra-Flores, 439 F.3d at 621.
2. Espinoza waived his procedural due process challenge to the Department
of Homeland Security’s failure to submit a brief on appeal and the BIA’s scope of
review because he failed to “specifically and distinctly argue” the issue in his
opening brief and in his reply brief. Koerner v. Grigas, 328 F.3d 1039, 1048 (9th
Cir. 2003) (internal quotations and citations omitted).
PETITION DENIED.

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