Rafael Rodriguez Zaragoza, a native and citizen of Mexico, sought cancellation of removal from the United States. His application was denied first by an Immigration Judge and subsequently by the Board of Immigration Appeals (BIA). Zaragoza petitioned the Ninth Circuit for review, raising multiple arguments including that his initial Notice to Appear was defective because it lacked a date and time, that the agency failed to properly consider hardship requirements, that his counsel provided ineffective assistance, and that the grant of voluntary departure was improper. The removal order was entered after a hearing where Zaragoza was present and had the opportunity to present evidence.
The panel addressed four distinct issues. First, regarding the Notice to Appear, the court acknowledged that under Niz-Chavez v. Garland, a Notice lacking a date and time is statutorily defective. However, the court clarified that this defect is a claim-processing rule, not a jurisdictional bar, and is subject to the doctrine of exhaustion. Because Zaragoza did not raise this non-jurisdictional argument before the BIA, the court could not consider it. Furthermore, citing Campos-Chaves v. Garland, the court noted that a removal order entered in absentia may not be set aside even if the Notice was defective, and an order entered after a hearing where the petitioner was present certainly need not be set aside on that ground. Second, on the cancellation of removal claim, the court explained that while it can review whether a qualifying hardship exists based on the facts, it lacks jurisdiction to review the agency's underlying factual findings or the ultimate discretionary decision to deny relief. The court applied the substantial evidence standard, finding that Zaragoza's testimony that his family would suffer financially did not deviate in the extreme from the norm expected when a family member is removed. The court also rejected the argument that the Immigration Judge failed to make a credibility finding, noting the record indicated Zaragoza testified credibly. Third, regarding the due process claim of ineffective assistance of counsel, the court held that such claims must be exhausted by filing a motion to reopen with the BIA. Since Zaragoza raised general due process concerns but not an ineffective assistance claim before the agency, the court could only review if the ineffectiveness was plain on its face. The record did not demonstrate that Zaragoza was prevented from reasonably presenting his case or that he was prejudiced. Finally, the court dismissed the voluntary departure claim, stating that the decision to grant voluntary departure is a discretionary decision over which the court lacks jurisdiction.
The removal order against Rafael Rodriguez Zaragoza remains in effect. The court lifted the temporary stay of removal and denied his motion for a stay. The decision reinforces that federal courts cannot review the discretionary denial of cancellation of removal or factual findings made by the BIA. It also clarifies that procedural defects in Notices to Appear and ineffective assistance of counsel claims must be exhausted at the administrative level before judicial review is available, leaving petitioners without a remedy for these specific arguments if they fail to raise them before the agency.