Paolo Lima-Ferreira v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAOLO ANTONIO LIMA-FERREIRA, No. 12-74179
Petitioner, Agency No. A079-638-449
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2022**
San Francisco, California
Before: W. FLETCHER and KOH, Circuit Judges, and KANE,*** District Judge.
*
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).
***
The Honorable Yvette Kane, United States District Judge for the
Middle District of Pennsylvania, sitting by designation.
Paolo1 Antonio Lima-Ferreira, a native and citizen of Brazil, petitions for
review of a decision of the Board of Immigration Appeals (“BIA”) dismissing his
appeal from the immigration judge’s (“IJ”) denial of his motion to reopen his
removal proceedings. We have jurisdiction2 under 8 U.S.C. § 1252 and review the
BIA’s denial of a motion to reopen for an abuse of discretion. Bonilla v. Lynch,
840 F.3d 575, 581 (9th Cir. 2016).
The BIA affirmed the IJ’s denial of the motion to reopen on two independent
grounds. First, the BIA rejected Lima-Ferreira’s argument that he suffered
prejudice on procedural grounds, finding that Lima-Ferreira had not presented the
argument before the IJ. Second, the BIA observed that even if it were to consider
the merits of Lima-Ferreira’s procedurally defaulted argument, the BIA still would
not find prejudice.
The BIA did not abuse its discretion in relying on either of these two
grounds for upholding the IJ’s denial of the motion to reopen.
1. The BIA did not err in finding that Lima-Ferreira forfeited his
prejudice argument because he raised it for the first time on appeal to the BIA. See
Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (holding that the BIA
1
In his briefing for this petition for review, Lima-Ferreira spells his first name as
“Paulo.”
2
The Government initially contested jurisdiction based on the jurisdictional bar set
forth in 8 U.S.C. § 1252(a)(2)(C). However, the Government later withdrew this
argument.
2
“does not per se err when it concludes that arguments raised for the first time on
appeal do not have to be entertained”).
2. The BIA did not err in rejecting Lima-Ferreira’s prejudice argument
on the merits because Lima-Ferreira failed to offer any “plausible grounds for
relief.” United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir. 1996).
In his appeal to the BIA and the instant petition for review, Lima-Ferreira
provided only the bare statement that he was prevented from appealing the denial
of his request for voluntary departure and a continuance to file an asylum
application. Instead of offering any plausible grounds for voluntary departure or a
continuance to file an asylum application, Lima-Ferreira’s briefing for his appeal
to the BIA and the instant petition for review focused on his argument that he
exercised due diligence in pursuing his claims. However, the panel need not and
does not address this argument because the BIA assumed Lima-Ferreira was
diligent.
The BIA saw no prejudice resulting from Lima-Ferreira’s inability to appeal
the denial of voluntary departure or a continuance to file an asylum application.
Regarding his request for voluntary departure, the BIA observed that Lima-Ferreira
“ha[d] not alleged any error in [the IJ’s denial].” Moreover, the BIA observed that
its “review of the record indicates that in light of [Lima-Ferreira]’s violent criminal
3
behavior, he would not warrant a favorable exercise of discretion.”3 With respect to
the request for a continuance to file an asylum application, the BIA observed that
any such application would have been untimely, and that Lima-Ferreira “ha[d] set
forth no basis” for waiver of the 1-year filing deadline (which Lima-Ferreira
missed by over a decade) and had not “articulated any basis” for asylum or
withholding of removal.
Thus, the BIA did not abuse its discretion in finding that Lima-Ferreira had
not demonstrated prejudice. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 827–28
(9th Cir. 2003) (finding it was not plausible that the BIA would have reversed the
IJ and granted voluntary departure because the petitioner offered no evidence to
the IJ, BIA, or Ninth Circuit to establish eligibility for voluntary departure).
PETITION DENIED.
3
Besides his conviction for assault with a deadly weapon under California Penal
Code § 245(a)(1), Lima-Ferreira also admitted to having a domestic violence
conviction for willful infliction of corporal injury on a spouse or cohabitant under
California Penal Code § 273.5(a).
4