Abelardo Lopez Rodriguez v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-3309
_____________
ABELARDO ANDRES LOPEZ RODRIGUEZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(No. A046-568-995)
Immigration Judge: Amit Chugh
_____________________________________
Submitted under Third Circuit L.A.R. 34.1(a)
July 9, 2021
(Filed July 20, 2021)
Before: SHWARTZ, KRAUSE, and RENDELL, Circuit Judges.
_________
O P I N I O N*
_________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
RENDELL, Circuit Judge.
Abelardo Andres Lopez Rodriguez seeks review of an order by the Board of
Immigration Appeals (“BIA”) affirming the denial of his application for cancellation of
removal. Lopez Rodriguez failed to exhaust his administrative remedies with respect to
two of his claims and his remaining argument lacks merit. The petition for review will
therefore be dismissed in part and denied in part.
I.
Lopez Rodriguez is a native and citizen of Colombia. He entered the United
States as a lawful permanent resident in 1998, when he was thirteen years old. Since
then, he has been convicted of several state crimes, including a 2005 conviction for theft
by deception, in violation of N.J. Stat. Ann. § 2C:20-4(a), and a 2010 conviction for
possession of less than fifty grams of marijuana, in violation of N.J. Stat. Ann. § 2C:35-
10(a)(4). Upon returning to the United States from a trip abroad in 2012, Lopez
Rodriguez was issued a Notice to Appear (“NTA”) charging him as inadmissible based
on his 2005 and 2010 convictions. The issuance of the NTA initiated removal
proceedings.
At a master calendar hearing, counsel for Lopez Rodriguez admitted all the
allegations in the NTA, including those regarding his two state court convictions. His
attorney then stated that he would seek cancellation of removal for lawful permanent
residents pursuant to 8 U.S.C. § 1229b(a). Under that provision, a lawful permanent
resident deemed inadmissible is eligible for discretionary cancellation of removal if he
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(1) has been an alien lawfully admitted for permanent residence for not less
than 5 years,
(2) has resided in the United States continuously for 7 years after having been
admitted in any status, and
(3) has not been convicted of any aggravated felony.
8 U.S.C. § 1229b(a). The second element, continuous residence in the United States, is at
issue in this case. Under the “stop-time rule,” the accrual of a period of continuous
residence generally ends either when the alien is (1) served an NTA or when (2) the alien
commits a crime rendering him inadmissible under 8 U.S.C. § 1182(a)(2) or removable
under 8 U.S.C. § 1227(a)(2) or (a)(4), whichever is earliest. 8 U.S.C. § 1229b(d)(1); see
also Rachak v. Att’y Gen., 734 F.3d 214, 218 (3d Cir. 2013). Among the enumerated
offenses that trigger the stop-time rule are “crime[s] involving moral turpitude”
(“CIMTs”). 8 U.S.C. § 1182(a)(2)(A)(i)(I).
After the master calendar hearing, the Immigration Judge (“IJ”) convened a merits
hearing at which several witnesses, including Lopez Rodriguez, testified. The IJ then
issued an opinion in which he determined that Lopez Rodriguez’s theft by deception
offense—which occurred in 2004—was a CIMT that triggered the stop-time rule about
six years after his 1998 arrival, one year short of the continuous residence requirement.
Although Lopez Rodriguez was not convicted until the following year in 2005, the IJ
correctly observed that the date of commission of the offense is the operative date for
purposes of the stop-time rule. See Barton v. Barr, 140 S. Ct. 1442, 1449 (2020).
Despite this conclusion, the IJ noted in his opinion that he had previously “believed”
during the merits hearing that Lopez Rodriguez was eligible for cancellation of removal
based on the information in the NTA. A.R. 32. For this reason, he devoted the
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proceedings primarily to soliciting testimony that would inform his assessment of the
“discretionary aspects” of cancellation of removal. See Singh v. Att’y Gen., 807 F.3d
547, 549 n.3 (3d Cir. 2015). But after looking more closely at the record, the IJ
concluded that the 2004 offense rendered Lopez Rodriguez ineligible for relief and issued
a removal order. The BIA affirmed the IJ. Lopez Rodriguez now petitions for review.
II.
The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). We exercise jurisdiction
to review final removal orders pursuant to 8 U.S.C. § 1252(a)(1). We review the BIA’s
legal conclusions de novo and its factual determinations for substantial evidence. Huang
v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010).
III.
Lopez Rodriguez advances three arguments in his petition for review. First, he
argues that his conviction for theft by deception does not constitute a CIMT and therefore
did not trigger the stop-time rule. Second, he urges that his Fifth Amendment due
process rights were violated because the IJ failed to advise him of alternative forms of
available relief during his removal proceedings. Third, he asserts that his prior counsel,
who represented him before the IJ, was ineffective. These arguments are unavailing.
A.
We first address Lopez Rodriguez’s arguments regarding the stop-time rule and
ineffective assistance of counsel. Lopez Rodriguez failed to raise these issues before the
IJ or BIA, so they are unexhausted. Because a petitioner must exhaust his administrative
remedies with respect “to each particular issue raised” before seeking our review of a
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final removal order, we lack jurisdiction to entertain the stop-time rule and ineffective
assistance arguments. Castro v. Att’y Gen., 671 F.3d 356, 365 (3d Cir. 2012); see also 8
U.S.C. § 1252(d)(1). Accordingly, we will dismiss the petition for review as to these
issues.
B.
Lopez Rodriguez’s due process argument, which largely resembles the due
process claim he raised before the BIA, is properly before us.1 But this argument fails on
the merits. Primarily relying on caselaw from the Ninth Circuit, Lopez Rodriguez urges
that the IJ’s failure to advise him of all forms of available relief violated due process
because it deprived him of the opportunity to pursue those remedies. We have held that
to prevail on this procedural due process claim, a petitioner must show “that he was
prevented from reasonably presenting his case” and “that substantial prejudice resulted.”
Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007) (internal quotation marks and
citation omitted).
At its core, due process in immigration proceedings requires “three key
protections”: “(1) factfinding based on a record produced before the decisionmaker and
disclosed to him or her; (2) the opportunity to make arguments on his or her own behalf;
1
Before the BIA, Lopez Rodriguez argued that the IJ’s failure to advise him that he was
ineligible for cancellation of removal at his master calendar hearing deprived him of the
opportunity to pursue other forms of relief. The BIA correctly rejected that theory.
Although that argument is not identical to the due process argument Lopez Rodriguez
now raises, we conclude that he has done enough under our “liberal exhaustion policy” to
raise his due process claim before us. Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir.
2006).
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and (3) an individualized determination of his [or her] interests.” Calderon-Rosas v.
Att’y Gen., 957 F.3d 378, 384 (3d Cir. 2020) (alteration in original) (internal quotation
marks and citation omitted). Each of these requirements was met here. Represented by
counsel, Lopez Rodriguez presented testimony and legal arguments in support of an
application for his desired relief, cancellation of removal. The IJ then evaluated the
evidence and applicable law in a detailed nine-page opinion.
Pursuant to agency regulation, IJs must also “inform the alien of his or her
apparent eligibility” for relief. 8 C.F.R. § 1240.11(a)(2). Lopez Rodriguez urges that the
IJ failed this duty by misleading him to think he qualified for cancellation of removal and
did not need to vigorously argue his eligibility or pursue other forms of relief, thus
denying him of due process. In reviewing the transcripts from the master calendar
hearing and merits hearing, we find no statements by the IJ that would mislead along the
lines alleged by Lopez Rodriguez or even hint at the IJ’s views on the merits of this case.
Although the IJ admitted that his initial personal views on the applicability of the stop-
time rule and Lopez Rodriguez’s eligibility for relief were incorrect, he never disclosed
those views to the parties at either hearing. Contrary to Lopez Rodriguez’s argument,
there was no mistaken “initial finding that he was in fact eligible” for cancellation of
removal. Pet’r’s Br. 17.
In any event, Lopez Rodriguez fails to identify any additional relief of which the
IJ should have advised him. The only alternative remedy that Lopez Rodriguez even
briefly mentions in his petition is voluntary departure in lieu of deportation under 8
U.S.C. § 1229C(a)(1), a form of relief committed to the discretion of the IJ. Critically,
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we have held “there is no constitutional right to be informed of possible eligibility for
discretionary relief,” thus dooming Lopez Rodriguez’s due process claim. Bonhometre v.
Gonzales, 414 F.3d 442, 448 n.9 (3d Cir. 2005) (citing United States v. Torres, 383 F.3d
92, 105–06 (3d Cir. 2004)).
Further, Lopez Rodriguez fails to demonstrate that the IJ’s alleged infraction had
“the potential for affecting the outcome of [the] deportation proceedings,” as required to
show substantial prejudice. Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 213 (3d Cir.
2017) (alteration in original) (citation and emphasis omitted). Although it appears Lopez
Rodriguez was eligible to seek voluntary departure before the conclusion of proceedings,
he offers no reason why he would be entitled to this discretionary relief. He also fails to
allege that he would have sought voluntary departure had the IJ advised him of it.2 In
fact, based on Lopez Rodriguez’s arguments before the BIA, it appears he was aware of
the option to pursue voluntary departure during his removal proceedings. Thus, to the
extent the IJ had an obligation to inform Lopez Rodriguez about voluntary departure,
Lopez Rodriguez has not shown any prejudice from the IJ’s failure to advise him of this
relief. See Mema v. Gonzales, 474 F.3d 412, 421 (7th Cir. 2007). We will therefore deny
Lopez Rodriguez’s petition with respect to his due process claim.
IV.
For the foregoing reasons, the petition for review will be dismissed in part and
2
We note that pursuing pre-conclusion voluntary departure would have required Lopez
Rodriguez to abandon his application for cancellation of removal at the outset of removal
proceedings. See 8 C.F.R. § 1240.26(b); Chavarria-Reyes v. Lynch, 845 F.3d 275, 277–
78 (7th Cir. 2016).
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denied in part.
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