Daniel Abarca-Perez v. Loretta E. Lynch ( 2015 )

FILED
NOT FOR PUBLICATION MAY 13 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL ABARCA-PEREZ, No. 11-74009
Petitioner, Agency No. A074-804-527
v.
MEMORANDUM**
LORETTA E. LYNCH, Attorney General,
Respondent.*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 6, 2015***
Pasadena, California
Before: TASHIMA, TALLMAN, and NGUYEN, Circuit Judges.
Daniel Abarca-Perez petitions for review of the Board of Immigration
Appeals’ (“BIA”) summary affirmance of the Immigration Judge’s (“IJ”) decision
*
Loretta E. Lynch is substituted for Eric H. Holder, Jr. as Attorney
General. Fed. R. App. P. 43(c)(2).
**
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
finding him removable. Reviewing the IJ’s decision, see Ren v. Holder, 648 F.3d
1079, 1083 (9th Cir. 2011), we dismiss in part, and deny in part.
1. Abarca argues that the IJ erred in finding him removable under 8 U.S.C.
§ 1227(a)(2)(A)(iii) for being an “alien who is convicted of an aggravated felony at
any time after admission.”1 He contends that this section cannot apply to him
because he illegally entered the United States without inspection or authorization
by immigration officials and was therefore never “admitted” into the country.
However, Abarca’s adjustment to lawful permanent resident (“LPR”) status in
1998 constitutes an “admission” for purposes of 8 U.S.C. § 1227(a)(2)(A)(iii). See
Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1134-35 (9th Cir. 2001) (concluding
that an adjustment to LPR status constitutes admission for purposes of §
1227(a)(2)(A)(iii) when an alien originally entered the United States illegally and
without inspection or authorization).
2. Abarca also argues that the IJ erred in denying his request for a
continuance so that he could marry his U.S. citizen girlfriend and then apply for
1
We have no jurisdiction to review removal orders for aliens who have
been convicted of aggravated felonies under 8 U.S.C. § 1227(a)(2)(A)(iii). See 8
U.S.C. § 1252(a)(2)(C). However, we retain jurisdiction to determine our own
jurisdiction, and therefore may review Abarca’s claim that he was never admitted
for purposes of 8 U.S.C. § 1227(a)(2)(A)(iii). See Ocampo-Duran v. Ashcroft, 254
F.3d 1133, 1134 (9th Cir. 2001).
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adjustment of status based on their marriage. Because Abarca raises a question of
law by challenging the IJ’s supposed misapplication of the correct legal standard,
we retain jurisdiction to review this claim. See 8 U.S.C. § 1252(a)(2)(D). We
review the IJ’s decision for abuse of discretion. Ahmed v. Holder, 569 F.3d 1009,
1012 (9th Cir. 2009). First, we reject the government’s contention that Abarca
failed to exhaust this issue before the BIA. Abarca challenged the IJ’s denial of his
request for a continuance in his appeal to the BIA, and therefore has exhausted this
claim. However, we conclude that the IJ’s denial of a continuance was not an
abuse of discretion. The IJ considered several factors articulated in Matter of
Hashmi, 24 I. & N. Dec. 785, 790 (BIA 2009), including the government’s
opposition to the request, the lack of a pending adjustment application, and the fact
that the potential marriage was speculative given that there was a restraining order
in place that prevented Abarca from marrying his girlfriend.
PETITION DISMISSED IN PART, DENIED IN PART.
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