Luzviminda Erwin v. Matthew Whitaker ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUZVIMINDA LOLA ERWIN, AKA No. 14-72325
Luzviminda Dolang Lola,
Agency No. A200-160-164
Petitioner,
v. MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 10, 2018**
University of Hawaii Manoa
Before: WARDLAW, BERZON, and RAWLINSON, Circuit Judges.
Luzviminda Erwin, a native and citizen of the Philippines, petitions for
review of a Board of Immigration Appeals (“BIA”) order affirming the
Immigration Judge’s (“IJ”) order finding her removable under 8 U.S.C. §
*
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).
1182(a)(7)(A)(i)(I).
1. The BIA did not err in affirming the IJ’s finding that Erwin was
removable. Erwin raises three arguments to challenge her removability under 8
U.S.C. § 1182(a)(7)(A)(i)(I): (1) she was lawfully admitted to the United States as
a matter of law because she entered the Commonwealth of the Northern Mariana
Islands (“CNMI”) before the passage of the Consolidated Natural Resources Act;
(2) because she was lawfully admitted, she is removable only under 8 U.S.C. §
1227 (deportability statute) and not 8 U.S.C. § 1182(a) (inadmissibility statute);
and (3) she is not an applicant for admission within the meaning of the
Immigration and Nationality Act. Our decision in Minto v. Sessions, 854 F.3d 619,
623–26 (9th Cir. 2017), squarely forecloses these arguments, and she is therefore
removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I).
2. Erwin’s remaining arguments likewise fail. Erwin contends that the BIA
erred in permitting a single panel member to review and dismiss her appeal in a
summary disposition. Under our precedent, the BIA errs in permitting single-
member review when an appeal: (1) raises novel legal questions that are not
directly controlled by BIA or Ninth Circuit precedent; or (2) contains substantial
factual and legal questions that are applicable to a large number of noncitizens. See
Chen v. Ashcroft, 378 F.3d 1081, 1086 (9th Cir. 2004). At the time of her appeal to
the BIA, Erwin’s legal question concerning the applicability of 8 U.S.C. §
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1182(a)(7)(A)(i)(I) to the CNMI may have been novel. But even assuming the BIA
erred in not reviewing her appeal with a full panel, remand is now unwarranted.
Remand would be futile because the issue is no longer one of first impression, as
this court set clear precedent in Minto.
3. Erwin additionally claims that the BIA erroneously ignored three
arguments on appeal: (1) her Notice to Appear (“NTA”) was deficient and did not
provide adequate notice; (2) the Department of Homeland Security (“DHS”), the
IJ, and the BIA deprived her of due process of law by not recognizing her vested
right to live and work in the CNMI indefinitely as a spouse of a citizen of the
Federated States of Micronesia; and (3) the government improperly initiated
removal proceedings after denying her parole.
A claim is unexhausted if a noncitizen fails to raise the issue to the IJ or
BIA. We lack jurisdiction to review an unexhausted claim. See 8 U.S.C. §
1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004). All of
Erwin’s additional claims are unexhausted: (1) she failed to argue to the IJ that her
NTA was deficient; (2) she did not argue to the IJ that, as a spouse of a citizen of
the Federated States of Micronesia, she had a vested right to live and work
indefinitely in the CNMI, as her only argument based on her marriage centered on
erroneously being denied parole; and (3) Erwin’s counsel stated an intent to argue
that removal proceedings were initiated erroneously after her parole denial, but did
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not submit any briefing on the issue nor raise the issue when the IJ provided him
an opportunity to present orally the arguments he failed to brief. Because these
claims are unexhausted, the BIA properly did not review them, and we lack
jurisdiction to review them on appeal.
4. Erwin argues that the IJ and the BIA have jurisdiction to review DHS
parole decisions and grant parole-in-place relief under 8 U.S.C. § 1182(d)(5)(A).
The authority to grant this discretionary form of relief is vested solely in the
Attorney General, who has, in turn, delegated that authority to certain DHS
officials. Nadarajah v. Gonzales, 443 F.3d 1069, 1082 (9th Cir. 2006); 8 C.F.R. §
212.5(a). The IJ and BIA do not have parole authority, and the BIA therefore
properly affirmed the IJ’s finding that it lacked jurisdiction.
5. Finally, Erwin argues that the BIA erred in affirming the IJ’s denial of her
counsel’s continuance to complete briefing. We review a denial of a request for a
continuance for an abuse of discretion. An Na Peng v. Holder, 673 F.3d 1248, 1253
(9th Cir. 2012). The BIA abuses its discretion “when it fails to state its reasons and
show proper consideration of all factors when weighing equities and denying
relief.” Id. (citation omitted). The BIA considered counsel’s most compelling
reason for a continuance—that he had an unexpectedly heavy workload and could
not complete briefing. It nonetheless concluded that counsel had not offered any
satisfactory explanation for failing to seek an extension before the hearing and that
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Erwin could not demonstrate prejudice because the IJ lacked parole authority.
Because the BIA considered the relevant factors and stated its reasons for
affirming, it did not abuse its discretion.
DENIED.
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