Arthur G. Bakaryan v. Eric H. Holder, Jr. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3228
A RTHUR G. B AKARIAN,
Petitioner,
v.
M ICHAEL B. M UKASEY, Attorney General
of the United States,
Respondent.
____________
On Petition for Review of an Order
of the Board of Im m igration Appeals.
N o. A43 003 461
____________
A RGUED M AY 29, 2008—D ECIDED S EPTEMBER 4, 2008
____________
Before F LAUM, M ANION, and E VANS, Circuit Judges.
M ANION, Circuit Judge. Arthur Bakarian, a native of
the former Soviet Union, was charged with being remov-
able as having been convicted of two crimes involving
moral turpitude not arising out of a single scheme of
criminal misconduct under Section 237(a)(2)(A)(iii) of the
Immigration and Nationality Act (“INA”). Bakarian filed
for cancellation of removal and waiver of inadmissibility.
2 No. 06-3228
The Immigration Judge (“IJ”) denied Bakarian’s applica-
tion, and the Board of Immigration Appeals (“BIA”)
affirmed. Bakarian petitions this court for review, and
we D ENY his petition for review.
I.
On June 9, 2005, the Department of Homeland Security
(“DHS”) initiated removal proceedings against Bakarian by
filing a Notice to Appear in immigration court, charging
him with removability under 8 U.S.C. § 1227(a)(2)(A)(ii), as
an alien convicted of two or more crimes involving
moral turpitude not arising out of a single scheme of
criminal misconduct. The Notice alleged that Bakarian
was a native and citizen of Ukraine who was admitted to
the United States on or about May 25, 1993, as an immi-
grant. The Notice continued to list four separate convic-
tions for forgery, intimidation of a victim, and two thefts
of property, noting that those “crimes did not arise out of
a single scheme of criminal misconduct.”
Bakarian appeared before the IJ on September 6, 2005,
and admitted, while under oath, the allegations set forth
in the Notice. Bakarian stated that he first came to the
United States in 1989, then went back to Moscow to study,
and received his permanent resident visa in 1993. The IJ
then went through each of the four convictions listed
on the notice. The first was a forgery conviction from a
Wisconsin state court on November 13, 2003, and Bakarian
explained that this offense involved a stolen check. The
second was a November 13, 2003, Wisconsin state court
conviction for the offense of “Intimidate Victim/Dissuade
No. 06-3228 3
Reporting,” which Bakarian stated occurred while he
was out on bond on the forgery charge. He violated one
of the conditions of his bond, which was not to have
contact with the victims. The third conviction was a
September 25, 1996, conviction from the municipal court
in Los Angeles County, California for theft on Septem-
ber 18, 1996. The final conviction was also a Los Angeles
County theft conviction for a theft on August 3, 1996.
Regarding the first of these thefts, Bakarian stated that
he had left his father’s house and was hungry so he stole
some meat, and the second theft he stole vodka. In an
attempt to ascertain whether Bakarian was eligible for
cancellation of removal as a permanent resident, the IJ
questioned Bakarian about when he entered the country.
The IJ gave Bakarian an application to file for cancellation
of removal and directed Bakarian to fill out the application
and bring it back to the IJ on September 14, 2005. The IJ
also requested from DHS a copy of Bakarian’s immigrant
visas, evidence showing that Bakarian was first here in
1989, and the government’s position on whether Bakarian
was eligible for cancellation of removal. The IJ con-
tinued the hearing until September 14, 2005.
On September 14, 2005, Bakarian again appeared
before the IJ, and this time he submitted an application for
cancellation of removal. According to his application for
cancellation of removal, Bakarian entered the United
States on November 15, 1987, as a B-2 visitor, and left
that same year to return to the Soviet Union. Bakarian
also stated on his application that he came back to the
United States on August 20, 1989, as a lawful permanent
resident. However, documentary evidence from DHS
4 No. 06-3228
established that he did not come back into this country
until March 5, 1990. In response to the IJ’s inquiry, the
government stated that it had no record of Bakarian
obtaining residency in 1989. Despite the 1990 date on his
immigrant visa and no documentation of an entry into
the United States in 1989, Bakarian insisted to the IJ that
his first entry into the United States as a lawful permanent
resident took place in 1989. At some point after attaining
lawful permanent residence status, Bakarian testified that
he returned to Moscow, where his passport had been
stolen. Bakarian testified that he got his replacement
green card in 1992 and returned to the United States in
1993. Towards the end of the hearing, Bakarian requested
that his case be transferred to Los Angeles, California,
where he stated his father was in the hospital, paralyzed
after a heart attack. The IJ responded:
Sir, here’s the difficulty you face. In order to be
eligible for cancellation of removal, you have to have
resided in the United States for seven years after a
lawful admission and prior to committing any
deportable offenses. Now, if you got your resident
status in 1989, you would have to show that you have
a clean record for seven years after that even to
apply for cancellation of removal. The Government
attorney is contending that you didn’t get your resi-
dent status until 1990, and your conviction records
show that you were convicted of theft in August of ‘96
and September of ‘06, and you would not have accu-
mulated the seven years necessary to apply for cancel-
lation of removal. So it’s very critical to try to come up
with some evidence to show whether you really got
No. 06-3228 5
your visa in 1989 or was it the year [1990], because the
Government records that they have submitted to the
Court today show that you got your residence in 1990.
The IJ had found that Bakarian was deportable because
of his criminal record, and told Bakarian that he “thought
you might be eligible to apply for cancellation of your
removal, and that’s why I provided you that application,
but if you don’t have seven years in the United States prior
to commission of your criminal offense, then you would
not be eligible for cancellation of removal, and the record
shows that you do not have seven years.” The IJ asked
Bakarian if he had an attorney, and Bakarian responded
that he did not and was not eligible for representation
from legal aid. The IJ then stated,
What I’m going to do is find that you’re not eligible to
apply for cancellation of removal, because you can’t
meet the requirements for that benefit. And what I’ll
do is I’ll just dictate a decision. I’m going to have the
officer fax your application to your Court. And then
you will decide whether or not you want to appeal
my decision or not. Now, you get to designate to
which country you would be deported to, but if that
country won’t accept you, then alternatively you
will be deported to the Ukraine.
The IJ then notified Bakarian of various options that he
might pursue to seek a waiver of removal. The IJ set the
next hearing for September 27, 2005, on Bakarian’s ap-
plication to transfer his case to Los Angeles, his eligibility
for waiver of removal under Section 212(c) of the INA, and
whether his eligibility for cancellation of removal “is
going to be held.”
6 No. 06-3228
On September 27, 2005, the IJ reconvened Bakarian’s
hearing. The IJ noted that the government had presented
two immigrant visas for Bakarian: one dated March 5,
1990, and a second dated May 25, 1993. Bakarian stated
that he got a stamp in his passport from the United States
embassy in Moscow in August 1989 and that passport had
been stolen. In response to the IJ’s query, Bakarian stated
that he did not remember when he came into the United
States. Bakarian did acknowledge that the document
stating that the first time he entered the United States
in 1990 was right, but stated that he came as a visitor in
1987 staying for six or seven months. Bakarian testified
that he then went back to the Soviet Union to finish
some business there for two months and then returned
to the United States as a visitor for another six months.
(He had not testified to these departures at the prior
hearing nor listed them on his application for cancella-
tion of removal.) Bakarian stated that he left the United
States again in 1989 to go back the Soviet Union for a
month and while he was there he got a permanent resident
visa after his father, who was living in the United States,
applied for one for him.
Bakarian stated that from 1990, he stayed in the United
States until 1992, at which time he returned to Russia
for his grandmother’s funeral. Bakarian then came back to
the United States in May 1993. The IJ noted that on his
application Bakarian did not list the various departures
about which he testified at the hearings. When the IJ
inquired about their absence from the form, Bakarian
stated that his English was not so good, and the IJ resched-
uled the hearing for a time when a Russian interpreter
could be present to assist Bakarian.
No. 06-3228 7
Bakarian again appeared before the IJ on November 22,
2005, and this time an interpreter was present. The IJ
reviewed the documentary evidence with Bakarian, which
included documents relating to his four criminal convic-
tions, two immigrant visas, his application for removal,
and an affidavit from his father. (Bakarian’s father’s
affidavit stated that Bakarian “is in fact a Permanent
Resident of the United States of America since 1989.”)
There was a visa issued on January 18, 1990, which was
stamped on March 3, 1990, designating that Bakarian
was a permanent resident. The IJ rejected Bakarian’s
contention that a separate faxed form indicated that
Bakarian entered the United States as a permanent
resident in 1989, particularly in light of the January 18,
1990 application date of immigrant visa. Bakarian stated
that he entered this country five to six times, including
in 2000 and in 2002; 2002 was the last time he entered the
United States before removal proceedings commenced.
Bakarian testified that he first came to the United States in
1987 and his later returns were in 1989, 1992 or 1993, and
1994. While he was in Russia in 1992 (when Bakarian
contends that his documents were stolen), his father
filed a document on April 10, 1992, which listed
Bakarian’s address as Odessa, Ukraine.
At the hearing, the IJ concluded that there was no
evidence to substantiate Bakarian’s claim that he had
entered the United States as permanent resident in 1989,
but found that Bakarian assumed that status in
1990. Moreover, the IJ noted that Bakarian had some
significant absences from the United States since 1990: a
year from 1992 to 1993, a month and a half in 1994, several
8 No. 06-3228
months in 2000, and several months in 2002. The IJ noted
that Bakarian had been a permanent resident for more
than five years and continued, “You also have to estab-
lish that you have been continuously physically present
in the United States for seven years after a lawful admis-
sion to the United States . . . and that date that that ends
would be the date that you committed an offense
which would subject you to being removed from the
United States.” After reviewing his Los Angeles convic-
tions, the latest being September 18, 1996, the IJ determined
that was the cut-off date of his permanent residence
period. Because he found that Bakarian’s status as a
permanent resident did not commence until March 1990,
the IJ concluded that Bakarian could not “establish seven
years’ continuous physical presence, and therefore,
cannot establish that [he was] statutorily eligible for
cancellation of removal.”
The IJ proceeded to explain other forms of relief that
might be available to Bakarian after he indicated that
his father was going to file a visa petition on his behalf.
The IJ scheduled another hearing which was held on
December 14, 2005. When Bakarian appeared for the
December 14 hearing, his father had not yet filed a subse-
quent visa petition, and the IJ closed the hearing.
On April 10, 2006, the IJ issued a written decision and
order. In his order, the IJ stated, “In the instant case, the
respondent would satisfy the continuous residence re-
quirement [ ] if he establishes that he resided in the
United States continuously for 7 years after having been
admitted in any status.” The IJ noted that he previously
No. 06-3228 9
found that Bakarian’s three theft convictions in 1996
constituted crimes involving moral turpitude, thereby
ending Bakarian’s continuous residence on August 8,
1996, the date of the second theft. The IJ continued, “[i]f the
offense was committed within 7 years of respondent’s
admission to the United States, the respondent cannot
establish the required continuous residence.”
In his order, the IJ rejected Bakarian’s position that his
continuous residence began in 1987 when he first visited,
stating “[a]ccording to his testimony, respondent went
back and forth to the USSR several times for months at a
time and did not come to reside in the United States until
1990.” The IJ also rejected Bakarian’s contention that he
became a lawful permanent resident in 1989 because
the documentary evidence listed the date as March 5,
1990, and Bakarian’s father’s visa application for him
was dated November 1989. The IJ ultimately found that
Bakarian’s continuous residence did not begin until 1993
because Bakarian resided in Russia in 1992 and 1993.
However, even crediting Bakarian with his continuous
residence commencing in March 1990, the IJ concluded
that Bakarian failed to meet the seven-year continuous
residence requirement because the period ended on
August 8, 1996.
The IJ also concluded that Bakarian was not eligible for
a waiver of removal pursuant to Section 212(c) of the INA
because he had entered a guilty plea after Section 212(c)
had been repealed. The IJ also addressed Bakarian’s
application for waiver of removal pursuant to § 212(h) of
the INA as a son of a United States citizen “who can
10 No. 06-3228
establish that his removal would result in extreme hard-
ship to [his father] and that the relief is warranted as a
matter of discretion.” The IJ denied the waiver because
Bakarian did not have the requisite approved visa peti-
tion, even after the IJ had granted Bakarian a continu-
ance and gave him specific instructions on what he
needed to do in order to be eligible for a waiver under
§ 212(h).
Bakarian appealed to the BIA arguing that his 1996
convictions did not constitute crimes involving moral
turpitude, and that he had resided in the United States in
excess of seven years, thereby qualifying him for cancella-
tion of his 2003 convictions as well as waiver of his 1996
convictions. The BIA rejected Bakarian’s arguments. It
found that his 1996 convictions were crimes involving
moral turpitude and agreed with the IJ that Bakarian had
failed to establish continual residence for seven years.
Bakarian also asserted that the IJ violated his right to due
process of law. In response, the BIA concluded that
Bakarian did not show that his hearing was not fairly
conducted. Accordingly, the BIA dismissed Bakarian’s
appeal, and Bakarian now petitions this court for review.
II.
On appeal, Bakarian contends that the IJ erred in apply-
ing the continuous physical presence standard to his case
and failing to consider Bakarian’s entry as a non-immigrant
in 1987 in calculating his period of continuous residence.
“When the BIA adopts and supplements the IJ’s reasoning,
we review the IJ’s decision as supplemented by the BIA.”
No. 06-3228 11
BinRashed v. Gonzales, 502 F.3d 666, 670 (7th Cir. 2007)
(citation omitted). We will affirm the BIA’s decision if it
is “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Id. (citation
omitted). We may not reverse simply because we would
have decided the case differently. Margos v. Gonzales, 443
F.3d 593, 597 (7th Cir. 2006) (citations omitted). Instead,
we will reverse only if the evidence compels a contrary
conclusion. Youkhana v. Gonzales, 460 F.3d 927, 931 (7th
Cir. 2006) (citation omitted). This court “may review a
discretionary decision—such as the denial of a request for
an adjustment of status or a denial of a waiver of inadmis-
sibility—only where the petition raises ‘constitutional
claims or questions of law.’” Khan v. Mukasey, 517 F.3d 513,
517 (7th Cir. 2008) (citation omitted).
Pursuant to 8 U.S.C. § 1229b(a), it is within the Attorney
General’s discretion to:
cancel removal in the case of an alien who is admissible
or deportable from the United States if the alien—
(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.
The BIA has interpreted “the plain meaning of the statu-
tory language [to mean that] the respondent’s period of
residence after his admission as a nonimmigrant . . . may
be considered in calculating the period of continuous
residence for purposes of [this] section”. In re Blancas-Lara,
23 I. & N. Dec. 458, 459 (BIA 2002). A period of continuous
12 No. 06-3228
residence is deemed to end either when the alien receives
notice to appear or commits an offense that would make
him inadmissible or removable under certain sections of
the immigration code. 8 U.S.C. § 1229b(d)(1). Offenses that
render an alien removable include crimes of moral turpi-
tude.1 Id. & 8 U.S.C. § 1182. The Attorney General also has
discretion to cancel removal for a non-permanent resident,
but only if, among other things, that individual has been
“physically present in the United States for a continuous
period.” 8 U.S.C. § 1229b(b)(1)(A); see also 8 U.S.C.
§ 1229b(d)(2) (“An alien shall be considered to have failed
to maintain continual physical presence in the United
States . . . if the alien has departed from the United States
for any period in excess of 90 days or for any periods in
the aggregate exceeding 180 days.”). Because Bakarian
had permanent residence status as of 1990, which was
more than five years, it was his burden to establish that he
had continuously resided in the United States for seven
years after his first admission in order to establish eligibil-
ity for relief from removal. See 8 C.F.R. § 1240.8(d).
Bakarian notes, and the government concedes, that the IJ
in this case repeatedly stated during the hearing that
Bakarian had to establish that he had been “continuously
physically present in the United States for seven years after
a lawful admission to the United States.” That is not the
1
The IJ found that Bakarian’s California and Wisconsin
convictions were crimes of moral turpitude, and Bakarian
does not appeal that conclusion. Therefore, we need not con-
sider it.
No. 06-3228 13
correct legal standard. However, in issuing his final,
written order, the IJ did not once mention continuous
physical presence. Rather, throughout his order, the IJ cited
and applied the proper standard: continuous residence.2
In determining the period of continuous residence, the IJ
also considered Bakarian’s admission into the United
States in 1987 as a visitor, but found that Bakarian went
back and forth to the Soviet Union several times for
extended periods of time between 1987 and March 5, 1990,
when he entered the United States as a permanent resident.
Bakarian’s own varied, and often confusing, testimony
supports the finding that he went back and forth between
the United States and the Soviet Union for extended
periods after his initial admittance to the United States in
1987, thereby supporting a conclusion that at the earliest,
Bakarian did not begin a period of continuous residence
until 1990. Bakarian presented no evidence showing that,
in light of his numerous trips back and forth to the
Soviet Union, he had established a residence here in the
United States upon his arrival as a visitor. The IJ ultimately
concluded that Bakarian did not commence his period of
2
For instance, the IJ stated that Bakarian “would satisfy the
continuous residence requirement under section 240A(a)(2) of the
Act if he establishes that he has resided in the United States
continuously for 7 years after having been admitted in any
status.” (Emphasis added.) The IJ continued by stating that
Bakarian’s “continuous residence ended on August 8, 1996.”
(Emphasis added.) The IJ noted that “a great deal of testimony
was taken to determine exactly when respondent’s contin-
uous residence began.” (Emphasis added.)
14 No. 06-3228
continuous residence until 1993, but noted that even if he
were to credit Bakarian with starting the period of continu-
ous residence on March 5, 1990, when he first became a
permanent resident, Bakarian “still failed to meet the seven
year continuous residence requirement.” Therefore,
considering the record as a whole, the IJ applied the proper
legal standard and considered Bakarian’s 1987 entrance as
a visitor when calculating Bakarian’s period of continuous
residence.
Bakarian also argues that the IJ erred in applying the
stop-time rule, i.e., stopping the time for continuous
residence at the time that he committed his theft offenses
in 1996, to his case. When the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (“IIRIRA”)
became effective on April 1, 1997, a lawful permanent
resident’s period of continuous residence ended at the time
the alien committed certain crimes for which he was
convicted or received a Notice to Appeal for removal
proceedings, whichever was first. See 8 U.S.C. § 1229b(a).
Bakarian asserts that the IJ impermissibly applied the stop-
time rule, because he contends that the application of the
statutory change to him would have an impermissible
retroactive effect. In response, the government asserts that
this court does not have jurisdiction over this argument
because Bakarian failed to exhaust his administrative
remedies by not raising this before the BIA.
In order for this court to have jurisdiction over an issue,
the petitioner must first exhaust his administrative reme-
dies by raising it before the BIA. See 8 U.S.C. § 1252(d)(1).
However, there is an exception to the exhaustion require-
No. 06-3228 15
ment in instances where “appealing through the adminis-
trative process would be futile because the agency is biased
or has predetermined the issue.” Didier v. INS, 301 F.3d
492, 498 (7th Cir. 2002).
Bakarian acknowledges that he did not raise this issue
before the BIA, but contends that to have done so would
have been futile because the BIA had already determined
that the stop-time rule applied retroactively, citing Matter
of Perez, 22 I. & N. Dec. 689, 691 (BIA 1999) and Matter of
Robles-Urrea, 24 I. & N. Dec. 22 (BIA 2006). In Perez, the BIA
concluded that the stop-time rule applied retroactively.
However, after the BIA issued its opinion in Perez, the
Supreme Court decided INS v. St. Cyr, 533 U.S. 289 (2001),
which held that the repeal of certain discretionary relief
from deportation for aliens convicted of aggravated
felonies did not apply retroactively, thereby presenting a
basis on which to challenge Perez. In Matter of Robles-Urrea,
the BIA addressed such a challenge to the stop-time rule,
but concluded that it could be applied to crimes that
predated the IIRIRA. While the BIA did determine the
issue of retroactivity of the stop-time rule in Robles-Urrea,
Bakarian’s citations do not support his position of futility.
Perez was decided before St. Cyr, and Robles-Urrea was not
issued by the BIA until September 27, 2006, which was two
months after the BIA issued its opinion in Bakarian’s case
on July 21, 2006. The BIA had not decided this issue prior
to Bakarian’s appeal to the BIA; thus it would not have
been futile for Bakarian to raise it before the BIA. There-
fore, Bakarian is not excused from the exhaustion require-
ment, and because he failed to exhaust this issue, we
do not have jurisdiction to review this claim.
16 No. 06-3228
Bakarian also asserts that even if 1996 is established as
the end period for his continuous residence, he can estab-
lish a second period of continuous residence after that
date. We need not decide whether the stop-time rule
allows for the accrual of a new period of residence because
even if the clock was reset in 1996, Bakarian cannot estab-
lish a second period of seven years of continuous resi-
dence. Bakarian testified that he re-entered the United
States in 2000 after committing the 1996 crimes. Because
Bakarian was a permanent lawful resident who committed
an offense listed in 8 U.S.C. § 1182(a)(2) and had not been
granted a waiver of inadmissibility or cancellation of
removal, his admission in 2000 would be the start date for
a new period of continuous residence. See 8 U.S.C.
§§ 1101(a)(13)(A), (C), & (C)(v) and 1229b(a)(2) (providing
that periods of continuous residence begin after “having
been admitted in any status.”). This new period of resi-
dence would end either on September 5, 2003, when
Bakarian committed forgery and his fourth crime of moral
turpitude or on June 9, 2004, when he was served with a
Notice to Appear before the IJ. Therefore, even if we
were to decide whether Bakarian is entitled to a second
period of continuous residence, Bakarian could not estab-
lish the requisite seven years of continuous residence to
be eligible for cancellation of removal.
Bakarian argues that he is entitled to waiver of inadmis-
sibility under the former § 212(c) of the Immigration and
Nationality Act because he pleaded guilty to the 1996
crimes prior to the effective date of the INA’s amendment.
Specifically, Bakarian contends that a § 212(c) waiver
would nullify his 1996 convictions, leaving him with
No. 06-3228 17
only one crime of moral turpitude for purposes of
removability in 2003. Former Section 212(c) of the INA
afforded the Attorney General with discretion to waive
certain grounds of inadmissibility for lawful permanent
residents, who temporarily proceed abroad voluntarily
and not under a deportation order, and who are re-
turning to a lawful, unrelinquished domicile of seven
consecutive years. Bakarian is correct in asserting that a
alien who pleaded guilty prior to the amendment of the
INA is entitled to seek waiver of inadmissibility pursuant
to the former § 212(c) of the INA, and, therefore, he could
have sought a § 212(c) waiver for his 1996 convictions. INS
v. St. Cyr, 533 U.S. 289, 326 (2001). However, Bakarian’s
2003 guilty plea fell outside of the time frame in which
he could seek a waiver of inadmissibility afforded in
§ 212(c) of the INA, and this conviction could be used in
conjunction with one of his 1996 convictions as a basis for
removability under 8 U.S.C. § 1227. See Matter of Balderas,
20 I. & N. Dec. 389, 391-93 (BIA 1991) (holding that a
conviction which has previously been relied upon in a
charge of deportability, but terminated by a grant of relief
under § 212(c), is not expunged or pardoned and may be
later alleged as one of the two crimes involving moral
turpitude in a second proceeding). Furthermore, the IJ
properly concluded, Bakarian “could not have had any
reliance on 212(c) eligibility in 2003 [when he pleaded
guilty to forgery] as that section had already been re-
pealed.” Therefore, the IJ did not err in denying Bakarian
relief under the former § 212(c) of the INA.
Finally, Bakarian also contends that his due process
rights were violated. Specifically, Bakarian asserts that he
18 No. 06-3228
was not allowed an adequate opportunity to apply for
adjustment of status and waiver and precluded from
having a reasonable opportunity for his father to testify at
his hearing. An alien must have a liberty or property
interest in the proceeding to raise a due process claim, and
“a petitioner has no liberty or property interest in obtain-
ing purely discretionary relief.” Hamdan v. Gonzales, 425
F.3d 1051, 1061 (7th Cir. 2005) (quoting Dave v. Ashcroft, 363
F.3d 649, 653 (7th Cir. 2004)). The relief Bakarian sought,
cancellation of removal or a waiver of inadmissability, was
discretionary. Therefore, Bakarian did not have a due
process interest in his proceedings and cannot raise a
due process claim.
Even if Bakarian had a due process interest, due process
requires that an alien have a meaningful opportunity to
present evidence at his hearing before the IJ. However,
“[w]e have cautioned against leading with an open-
ended due process argument and advised that aliens
should stick with claims based on the statutes and regula-
tions unless they believe that one of these rules violated
the Constitution or that lacunae in the rules have been
filled with defective procedures.” Pronsivakulchai v. Gonza-
les, 461 F.3d 903, 907 (7th Cir. 2006) (internal citation and
quotations omitted). “Aliens have a statutory and regula-
tory right to a reasonable opportunity to present evidence.”
Id. (citation omitted).
In this case, the IJ granted Bakarian a continuance
specifically to provide Bakarian with the opportunity to
apply for a waiver and adjustment of status. Bakarian
only presented a one-page amendment to his application
No. 06-3228 19
for cancellation of removal, but did not file the appropriate
application. By granting Bakarian a continuance, the IJ
provided Bakarian more than the required statutory
protections and did not violate the due process clause.
Bakarian also contends that he was deprived of his ability
to present his only witness, his father who was paralyzed
in California and unable to travel, by the IJ’s refusal to
transfer the hearing to Los Angeles. Bakarian, though,
does not assert what evidence, if any, that his father
would have provided beyond what was presented in his
father’s affidavit, which the IJ accepted as evidence.
Without prejudice, there is no due process violation.
Firmansjah v. Gonzales, 424 F.3d 598, 604 (7th Cir. 2005).
Accordingly, the IJ did not violate Bakarian’s due process
rights.
III.
The IJ applied the proper standard and considered
Bakarian’s admittance in 1987 as a visitor in denying
Bakarian’s application for cancellation of removal, and
we do not have jurisdiction over Bakarian’s claim that
application of the stop-time rule to his case has an imper-
missible retroactive effect. Bakarian also is not entitled to
relief under § 212(c) of the INA. Finally, the IJ did not
violate Bakarian’s due process rights. We D ENY the
petition for review.
9-4-08