Jorge Covarrubias Cabrera v. Loretta E. Lynch , 650 F. App'x 455 ( 2016 )

FILED
NOT FOR PUBLICATION
MAY 23 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE ANTONIO COVARRUBIAS No. 13-72165
CABRERA, AKA Jorge Avila a la Torre,
Agency No. A089-494-673
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 10, 2016**
San Francisco, California
Before: FARRIS, O’SCANNLAIN, and CHRISTEN, Circuit Judges.
Jorge Covarrubias Cabrera, a native and citizen of Mexico, petitions for
review of the BIA’s dismissal of his appeal of the IJ’s decision finding him
ineligible for adjustment of status to lawful permanent resident based on his
*
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).
inadmissability under 8 U.S.C. § 1182(a)(6)(C)(ii) for attempting to enter the U.S.
by making a false claim of U.S. citizenship. We have jurisdiction to review the
final removal order under 8 U.S.C. § 1252(b) and we DENY the Petition for
Review.
An alien who is admitted into the United States may adjust his or her status
to an alien lawfully admitted for permanent residence if the following requirements
are met: (1) the alien makes an application for adjustment of status; (2) the alien is
eligible to receive an immigrant visa and is admissible to the United States for
permanent residence; and (3) an immigrant visa is immediately available at the
time the application is filed. 8 U.S.C. § 1255(a). Petitioner does not meet the
second requirement. He admitted that he attempted to enter the United States by
falsely representing himself as a U.S. citizen. Under 8 U.S.C. § 1182(a)(6)(C)(ii),
his false claim of U.S. citizenship makes him inadmissable.
Petitioner has not identified any way to waive or cure his inadmissability.
The Ninth Circuit has held that § 1182(a)(6)(C)(ii) “is a non-waivable ground of
inadmissibility.” Pichardo v. I.N.S., 216 F.3d 1198, 1201 (9th Cir. 2000).
Petitioner may not cure his inadmissability through nunc pro tunc permission to
reapply for admission, as nunc pro tunc relief is only available in the limited
circumstances “where the only ground of deportability or inadmissibility would
thereby be eliminated or where the alien would receive a grant of adjustment of
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status in conjunction with the grant of any appropriate waivers of inadmissibility.”
In Re Garcia-Linares, 21 I. & N. Dec. 254, 257 (BIA 1996); Corona-Mendez v.
Holder, 593 F.3d 1143, 1148 (9th Cir. 2010). Neither condition is satisfied here.
Nunc pro tunc relief would not eliminate the only ground of deportability, as the
prior false claim of U.S. citizenship renders Petitioner inadmissible. Additionally,
Petitioner is ineligible for a waiver since § 1182(a)(6)(C)(ii) is a non-waivable
ground of inadmissibility.
Petitioner argues his Notice to Appear violated his Due Process rights and 8
C.F.R. § 1003.15 (b)(3) by not advising him of his inadmissability under
§ 1182(a)(6)(C)(ii). “[D]ue process does not require inclusion of charges in the
NTA that are not grounds for removal but are grounds for denial of relief from
removal.” Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006).
Petitioner is not entitled to notice of the facts which the government might present
to argue against granting the Petitioner relief from removal.
Finally, Petitioner challenges the IJ’s finding that he made a false claim of
U.S. citizenship. His argument is unavailing: he admitted this fact on appeal to the
BIA and evidence in the record amply supports the IJ’s finding.
We do not have jurisdiction to review arguments or holdings that the BIA
did not consider. As the BIA did not review the IJ’s alternative holding that
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Petitioner is ineligible for adjustment of status for overstaying his visa, we do not
review that issue.
PETITION FOR REVIEW DENIED.
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