Labitoria v. Garland ( 2023 )

Case: 21-340, 02/21/2023, DktEntry: 46.1, Page 1 of 4
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Eduardo Soliban Labitoria, Jr., No. 21-340
Petitioner, Agency No. A058-661-115
v. MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2023**
San Francisco, California
Before: S.R. THOMAS, MILLER, SANCHEZ, Circuit Judges
Eduardo Soliban Labitoria, Jr. (“Labitoria”), a native and citizen of the
Philippines, petitions for a review of a decision by the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) finding that Labitoria
was ineligible for readjustment of status. We have jurisdiction under
8 U.S.C. § 1252, and we deny the petition.
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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“We review de novo claims of equal protection and due process
violations in removal proceedings.” Cruz Rendon v. Holder, 603 F.3d 1104,
1109 (9th Cir. 2010). “The BIA’s decision will be reversed on due process
grounds if (1) the proceeding was so fundamentally unfair that the alien was
prevented from reasonably presenting his case, and (2) the alien demonstrates
prejudice, which means that the outcome of the proceeding may have been
affected by the alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614,
620-21 (9th Cir. 2006) (internal quotation marks and citations omitted). “An
alien bears the burden of proving the alleged violation prejudiced his or her
interests.” Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011).
1. The agency did not violate Labitoria’s due process rights by
informing Labitoria that he was ineligible to apply for a waiver of
inadmissibility in conjunction with an application for readjustment of status.1
Even if the government erroneously advised the IJ that Labitoria entered the
United States as a lawful permanent resident (“LPR”), Labitoria cannot
demonstrate prejudice from this alleged error. The IJ found Labitoria ineligible
for a waiver of inadmissibility due to a prior controlled substance offense, not
his LPR status. Labitoria does not contest the agency’s finding of ineligibility
1
Although Labitoria did not raise this issue before the BIA, we may consider it
because the failure to “inform the alien of his or her apparent eligibility” for
certain discretionary relief excuses the alien from the exhaustion requirement.
United States v. Vidal-Mendoza, 705 F.3d 1012, 1016 (9th Cir. 2013) (quoting
8 C.F.R. § 1240.11(a)(2)).
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based on his prior controlled substance offense and has waived this issue. See
Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004).
2. This Court has jurisdiction to consider a claim to be a United States
national pursuant to 8 U.S.C. § 1252(b)(5). If “the record presents no genuine
issue of material fact about the petitioner’s nationality, a reviewing court must
decide the nationality claim.” Chau v. I.N.S., 247 F.3d 1026, 1029 (9th Cir.
2001) (citing 8 U.S.C. § 1252(b)(5)(A)). If, however, “the record presents a
genuine issue of material fact as to the petitioner's nationality, the reviewing
court must transfer the proceeding to a district court for a de novo
determination.” Id. (citing 8 U.S.C. § 1252(b)(5)(B)). “Traditional summary
judgment rules guide our decision concerning transfer.” Ayala-Villanueva v.
Holder, 572 F.3d 736, 738 (9th Cir. 2009). Because Labitoria acknowledges
that he was born in the Philippines, the burden is on him to establish United
States citizenship. See Scales v. I.N.S., 232 F.3d 1159, 1163 (9th Cir. 2000).
Labitoria has not created a genuine dispute of material fact about his
citizenship. Labitoria focuses on the fact that the agency failed to conclusively
resolve the question of whether Labitoria’s grandfather transmitted citizenship
to Labitoria’s father at birth, who then transmitted citizenship to Labitoria at
birth. Labitoria testified he was unsure whether his grandfather was a United
States citizen. The IJ asked Labitoria and the government to try to obtain
information regarding the citizenship status of Labitoria’s grandfather. Neither
party ever produced documents on this topic, and the IJ never revisited the
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issue.
In the context of a citizenship claim, this Court may consider evidence
outside the administrative record. See Batista v. Ashcroft, 270 F.3d 8, 14 (1st
Cir. 2001); Brown v. Holder, 763 F.3d 1141, 1145 n.2 (9th Cir. 2014). Here,
the government provided this Court with agency records which Labitoria argues
should have been submitted before the agency. Docket Entry No. 36.2 These
records do not create a genuine issue of material fact regarding Labitoria’s
citizenship status. If anything, the records indicate that Labitoria’s grandfather
was not a citizen at the time of Labitoria’s father’s birth. See Docket Entry No.
36. Assuming, without deciding, that the government’s failure to produce these
records before the IJ constituted a due process error, Labitoria has not
demonstrated that the error prejudiced him.
The motion for a stay of removal, Docket Entry No. 2, is denied. The
temporary stay of removal is lifted.
PETITION DENIED.
2
We grant the government’s unopposed motion for judicial notice of these
documents. Docket Entry No. 36.
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