Ismael Hernandez v. Jefferson Sessions, 691 F. App'x 888

Petitioner Ismael Hernandez, a Mexican national, challenged the BIA’s dismissal of his appeal from an IJ’s removal order that pretermitted his application for cancellation of removal.
The agency found Hernandez ineligible for cancellation based on a California Penal Code § 273.5(a) conviction (corporal injury to a spouse/cohabitant).
Cancellation of removal is unavailable for aliens convicted of offenses disqualifying under 8 U.S.C. § 1227(a)(2), including crimes of domestic violence.
Hernandez sought a continuance to pursue post-conviction relief; the IJ and BIA denied the continuance for lack of good cause because no post-conviction application had been shown and relief was speculative.
Hernandez attempted to contest aspects of his state criminal proceedings in immigration court; the agency declined to revisit or collateral-attack the conviction.
Hernandez raised additional claims (a waiver under 8 U.S.C. § 1227(a)(7)(A) and arguments about § 1227(a)(2)(E)(i)) that were not presented to the BIA and thus were unexhausted.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether CPC § 273.5(a) conviction bars cancellation of removal as a "crime of domestic violence"	Hernandez argued he should be eligible for cancellation despite the conviction	Government argued CPC § 273.5(a) is a categorical domestic-violence offense that disqualifies him	Held: Conviction is categorically a crime of domestic violence; ineligible for cancellation
Whether denial of continuance to seek post-conviction relief was an abuse of discretion	Hernandez argued he needed more time to pursue post-conviction relief that might affect eligibility	Government argued no good cause shown; no application filed and success speculative	Held: Denial not an abuse of discretion; continuance not required based on speculation
Whether agency violated due process by pretermitting relief or refusing to consider criminal-court contentions	Hernandez argued pretermitting/collateral refusal deprived him of due process	Government argued burden on alien to prove eligibility and collateral attack is not permitted	Held: No due process violation; alien failed to show error and prejudice; collateral attack barred
Whether court may consider unexhausted claims regarding waiver and statutory applicability	Hernandez raised waiver and statutory-interpretation claims on review	Government contended these claims were not presented administratively and thus unexhausted	Held: Court lacks jurisdiction over unexhausted claims; those contentions dismissed

Hernandez-Mancilla v. Holder, 633 F.3d 1182 (9th Cir. 2011) (standard of review for questions of law)
Singh v. Holder, 638 F.3d 1264 (9th Cir. 2011) (continuance denial reviewed for abuse of discretion; speculative bases insufficient)
Carillo v. Holder, 781 F.3d 1155 (9th Cir. 2015) (CPC § 273.5 is categorically a crime of domestic violence)
Lata v. INS, 204 F.3d 1241 (9th Cir. 2000) (due process requires showing of error and prejudice; collateral attacks disfavored)
Garcia v. Lynch, 798 F.3d 876 (9th Cir. 2015) (denial of continuance not abuse where petitioner had ample time for post-conviction relief)
Leal v. Holder, 771 F.3d 1140 (9th Cir. 2014) (conviction cannot be collaterally attacked in removal proceedings)
Tijani v. Holder, 628 F.3d 1071 (9th Cir. 2010) (court lacks jurisdiction to review claims not presented to the BIA)