NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 30 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRISTIAN OMAR DIAZ GUEVARA, No. 22-56023 formerly minor C.G.; et al., D.C. No. Plaintiffs-Appellants, 5:20-cv-01929-FMO-SP

v.

MEMORANDUM*

CHAFFEY JOINT UNION HIGH SCHOOL

DISTRICT,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Argued and Submitted October 17, 2023 Pasadena, California

Before: PAEZ and H.A. THOMAS, Circuit Judges, and RAKOFF,** District Judge.

Cristian Diaz Guevara (“Guevara”) appeals the district court’s grant of

summary judgment in favor of Chaffey Joint Union High School District (the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. “School District”). Guevara was enrolled as a high school student in the School

District in 2018 and alleges that he was denied his right to a free appropriate public

education (“FAPE”) under the Individuals with Disabilities Education Act

(“IDEA”). He contends that the School District failed to timely assess his need for

special education services, and that the eventual assessment was procedurally

improper and led to the erroneous conclusion that he was ineligible for special

education services. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

In the spring of 2018, Guevara, who was then seventeen years old, emigrated

from Honduras to live with his aunt and uncle in California. He did not speak

English and had not attended school since the sixth grade. In the spring of 2019,

Guevara’s guardians requested a due process hearing alleging the School District

had failed to evaluate him for special education eligibility and denied him a FAPE

under IDEA. The School District assessed Guevara using various assessment tools

and strategies. See 20 U.S.C. § 1414(b)(2). In October 2019, the School District

held a meeting where it concluded that Guevara was ineligible for special

education, and that his difficulties in school were instead attributable to his gaps in

education and his unfamiliarity with the English language. In subsequent

administrative due process proceedings pursued by Guevara, the Administrative

Law Judge (ALJ) found that the School District’s assessment was adequate and its

conclusion regarding special education eligibility was reasonable. The district

2 court ultimately agreed with the ALJ’s decision and entered judgment in favor of

the School District.

We review the district court’s findings of fact for clear error, even if those

findings are based on the administrative record. Amanda J. ex rel. Annette J. v.

Clark Cnty. Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001). We review de novo the

district court’s conclusions of law. Id. Mixed questions of fact and law are

reviewed de novo, “[u]nless a mixed question . . . is primarily factual.” Gregory K.

v. Longview Sch. Dist., 811 F.2d 1307, 1310 (9th Cir. 1987). Finally, we give

particular deference to administrative findings where they are “thorough and

careful.” R.B., ex rel. F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 937

(9th Cir. 2007) (quoting Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th Cir.

1994)).

The ALJ’s 57-page opinion weighing the evidence and finding in favor of

the School District was thorough and careful. See R.B., 496 F.3d at 942. At the

conclusion of the hearing, where Guevara bore the burden of persuasion, Schaffer

ex rel. Schaffer v. Weast, 546 U.S. 49, 62 (2005), the ALJ reasonably concluded

that the School District’s evidence, including its direct classroom observation and

extensive assessment of Guevara, was more persuasive than the evidence offered

by Guevara. The district court properly gave these findings due consideration.

The district court’s findings were not clearly erroneous.

3 Because the School District ultimately undertook a thorough assessment of

Guevara and reasonably concluded he was ineligible for special education services,

any procedural violation arising out of a failure to timely assess him would not

entitle him to relief under IDEA. See R.B., 496 F.3d at 942 (“a procedural

violation cannot qualify an otherwise ineligible student for IDEA relief”); see also

D.O. By and Through Walker v. Escondido Union Sch. Dist., 59 F.4th 394, 415

(9th Cir. 2023) (rejecting the argument that “a delay in assessment is a per se

denial of a FAPE, even if the delay does amount to a procedural violation of the

IDEA”). Accordingly, the district court did not err in granting summary judgment

to the School District.

Finally, by failing to squarely address the district court’s dismissal of his

Title VI claim in his opening brief, Guevara has waived this claim.1 See Friends of

Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1033 (9th Cir. 2008) (“Arguments

not raised by a party in its opening brief are deemed waived.”).

AFFIRMED.

1 Guevara’s Motion for Leave to File Supplemental Brief, Dkt. No. 35, is denied.

4