                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            DEC 05 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JUAN NUNEZ ESCAMILLA,                            No.   13-73299

              Petitioner,                        Agency No. A091-635-657

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted November 8, 2016
                              Pasadena, California

Before: WARDLAW and BYBEE, Circuit Judges, and BELL,** District Judge.

      Juan Núñez Escamilla (“Núñez”), a native and citizen of Mexico, petitions

for review of the decision of the Board of Immigration Appeals (“BIA”) affirming

the Immigration Judge’s (“IJ”) removal order and denial of Núñez’s application for

cancellation of removal. Because “the BIA adopt[ed] the decision of the IJ” in its

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Robert Holmes Bell, United States District Judge for
the Western District of Michigan, sitting by designation.
entirety, “we review the IJ’s decision as if it were that of the BIA.” Hoque v.

Ashcroft, 367 F.3d 1190, 1194 (9th Cir. 2004) (citation omitted). We have

jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition for review.

1.    The Government argues that we lack jurisdiction over the IJ’s order of

removal because it was a discretionary decision based on a criminal conviction.

See 8 U.S.C. §§ 1252(a)(2)(B), (C). However, we have jurisdiction over the final

order because Núñez raises a constitutional claim. See 8 U.S.C. § 1252(a)(2)(D);

Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012).

2.    Núñez argues that the IJ violated his Fifth Amendment due process rights by

denying him a “full and fair hearing.” See Dent v. Holder, 627 F.3d 365, 373 (9th

Cir. 2010). He asserts that the IJ denied him a reasonable opportunity to present

evidence by allowing him only 34 days to develop his case between his initial

appearance and his final hearing. See Reyes-Melendez v. I.N.S., 342 F.3d 1001,

1006 (9th Cir. 2003).

      Reviewing de novo the BIA’s denial of Núñez’s due process claim, see

Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014), we do not agree that Núñez’s

due process rights were violated. Even if Núñez is correct that the “proceeding

was so fundamentally unfair that [he] was prevented from reasonably presenting




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his case,” he cannot prevail because he failed to demonstrate prejudice. See

Vilchez, 682 F.3d at 1199 (citation omitted).

      The IJ considered the positive equities asserted by Núñez, and additional

evidence may have enhanced these equities. However, the adverse factors cited by

the IJ would have outweighed them, even if Núñez had obtained the evidence he

speculates would have supported his claim. See Zolutukhin v. Gonzales, 417 F.3d

1073, 1076–77 (9th Cir. 2005); Agyeman v. I.N.S., 296 F.3d 871, 884–85 (9th Cir.

2002). As the IJ noted, Núñez had three criminal convictions for possession of

methamphetamine, including one in 2011 and another in 2012. The IJ found that

Núñez had neither accepted responsibility for the offenses nor rehabilitated himself

from his methamphetamine problems, failing to complete court-ordered drug

classes and continuing to use methamphetamine during his probation. In addition,

Núñez failed to pay taxes, though he testified that he made enough money to incur

tax liability. He also drove for several years on a restricted license.

      Núñez contends that additional time might have allowed him to gather

testimony and letters from family members and former employers, as well as a

copy of his General Educational Development (GED) certificate. However,

Núñez’s own testimony established that he was not close to his family. By his own

admission, he saw his two brothers only on Christmas and New Year’s Eve.


                                           3
Though he testified that at one point he saw his mother and sister weekly, in recent

years he saw them on “average once a month.” Moreover, the IJ stated that

Núñez’s attainment of his GED would have received “minimal weight” even if he

had been able to produce the certificate. In addition, any testimony about Núñez’s

good character would have been outweighed by his significant adverse factors.

Finally, Núñez’s own son was born in Mexico, and continues to reside there, to the

best of his knowledge.

      Because Núñez cannot establish that he suffered prejudice, we decline to

reach his contention that the “proceeding was so fundamentally unfair that [he] was

prevented from reasonably presenting his case.” See Vilchez, 682 F.3d at 1199.

      PETITION FOR REVIEW DENIED.




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