Israel Franco Morales v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISRAEL FRANCO MORALES,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-72319
Agency No. A029-304-411
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 12, 2023**
Pasadena, California
Before: WATFORD, FRIEDLAND, and BENNETT, Circuit Judges.
Israel Franco Morales, a native and citizen of Mexico, petitions for review of
an order of the Board of Immigration Appeals (“BIA”) affirming, without opinion,
the decision of an immigration judge (“IJ”) denying his application for cancellation
* 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
JAN 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of removal. Morales also seeks review of the IJ’s denial of his motion to
administratively close proceedings. We deny the petition in part and dismiss it in
part.
1. Morales asserts that the notice to appear (“NTA”) he was issued did not
confer jurisdiction on the immigration court because it did not contain the date,
time, and place of hearing. As we recently held, however, “the failure of an NTA
to include time and date information does not deprive the immigration court of
subject matter jurisdiction.” United States v. Bastide-Hernandez, 39 F.4th 1187,
1188 (9th Cir. 2022) (en banc); see also Aguilar Fermin v. Barr, 958 F.3d 887, 889
(9th Cir. 2020) (“[A]n initial NTA need not contain time, date, and place
information to vest an immigration court with jurisdiction if such information is
provided before the hearing.”). The immigration court therefore had the authority
to order Morales’s removal.
2. The IJ applied the correct legal standard when assessing whether Morales
demonstrated the “exceptional and extremely unusual hardship” required for
cancelation of removal. 8 U.S.C. § 1229b(b)(1)(D). “To establish exceptional and
extremely unusual hardship, an applicant must demonstrate that qualifying
relatives would suffer hardship that is substantially different from, or beyond, that
which would normally be expected from the deportation of an alien with close
family members here.” De La Rosa-Rodriguez v. Garland, 49 F.4th 1282, 1291

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(9th Cir. 2022) (internal citation and quotation marks omitted). The IJ applied this
standard when he determined that the family-separation and financial hardships
that Morales and his children will experience if he is removed, while significant,
are not atypical. Morales’s claim that the IJ erroneously focused on present facts,
rather than future difficulties, lacks merit. Although the IJ commented on the
academic performance of Morales’s children and their health conditions during a
time period when his wife had primary custody and Morales was significantly
behind on his child support payments, these facts reasonably informed the IJ’s
predictions of the family’s future hardships absent cancelation of removal.
3. We lack jurisdiction to consider Morales’s claim that the denial of his
motion to administratively close proceedings constituted an abuse of discretion and
a violation of his due process rights. “[F]ailure to raise an issue in an appeal to the
BIA constitutes a failure to exhaust remedies with respect to that question and
deprives this court of jurisdiction to hear the matter.” Zara v. Ashcroft, 383 F.3d
927, 930 (9th Cir. 2004) (internal citation omitted). This rule applies even when
the BIA affirms the IJ’s decision without an opinion pursuant to 8 C.F.R.
§ 1003.1(e)(4). See id. at 931. Because Morales did not challenge the IJ’s denial
of his motion for administrative closure in his appeal to the BIA, we cannot review
this claim.

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PETITION DENIED IN PART and DISMISSED IN PART.1
1 The temporary stay of removal remains in place until issuance of the
mandate. The motions for a stay of removal are otherwise denied.

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