Robleto-Pastora v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE FILADELFO ROBLETO-PASTORA, 
Petitioner,
No. 07-71492
v.
 Agency No.
ERIC H. HOLDER JR., Attorney A027-447-476
General,
Respondent.

JORGE FILADELFO ROBLETO-PASTORA, 
Petitioner, No. 07-72091
v.
 Agency No.
A027-447-476
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 10, 2008—Seattle, Washington
Filed May 27, 2009
Before: Robert R. Beezer, Ronald M. Gould and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
6229
6234 ROBLETO-PASTORA v. HOLDER
COUNSEL
Philip James Smith, Nelson Smith, LLP, Portland, Oregon,
for the petitioner.
Gregory G. Katas, Richard M. Evans, and Paul Fiorino,
United States Department of Justice, Washington, D.C., for
the respondent.
OPINION
CALLAHAN, Circuit Judge:
Jorge Filadelfo Robleto-Pastora (“Robleto” or “petitioner”),
born June 5, 1960, is a native and citizen of Nicaragua who
entered the United States in 1984, was granted asylum, then
adjusted status to that of lawful permanent resident (some-
times referred to herein as “LPR”) in 1988. Following his
2005 forgery conviction in Oregon state court, petitioner was
ordered removed as an aggravated felon pursuant to sections
237(a)(2)(A)(iii) and 101(a)(43)(R) of the Immigration and
Nationality Act (“INA”). 8 U.S.C. §§ 1227(a)(2)(A)(iii),
1101(a)(43)(R). He petitions for review of the removal order,
and the denial of his motion to reconsider that order. We deny
both petitions.
I.
A. Factual Background
Robleto and several of his family members left Nicaragua
in the mid-1980s when the Sandinistas rose to power. In 1986,
he and other family members were granted asylum pursuant
to section 208 of the INA. See 8 U.S.C. § 1158. On October
2, 1988, he adjusted his status to lawful permanent resident
pursuant to section 209(b). 8 U.S.C. § 1159(b).
ROBLETO-PASTORA v. HOLDER 6235
In October 2004, Robleto was arrested and charged in Ore-
gon state court with forgery-related offenses involving the
distribution of false identifications. On July 29, 2005, he pled
no contest to six counts of first degree forgery, and was sen-
tenced to thirteen months in prison. He was released from
prison after eleven months, and then charged with removabil-
ity under section 237(a)(2)(A)(iii) of the INA. See 8 U.S.C.
§ 1227(a)(2)(A)(iii).
During the removal proceedings, Robleto sought relief
from removal by (1) submitting a new application for asylum,
(2) applying for withholding of removal under section
241(b)(3) of the INA and the Convention Against Torture
(“CAT”), and (3) seeking to adjust his status under section
209(b) of the INA in connection with a waiver of inadmissi-
bility under section 209(c). 8 U.S.C. § 1159(b)-(c).
On August 23, 2006, an Immigration Judge (“IJ”) ruled that
Robleto was ineligible to apply for adjustment of status under
section 209(b) because that section was available only to
asylees, and not lawful permanent residents such as Robleto.
Following several continuances, Robleto appeared before
an IJ on December 5, 2006. He testified that his father and
brother were employees in the Somoza government, and that
he worked as a mechanic in the government’s “General Cus-
toms” division. All three of them lost their jobs when the
Sandinistas took control of the government. Robleto testified
that he was unable to find gainful employment after he was
fired, but admitted that he did not look for work in the private
sector.
Other than losing his job, Robleto did not allege that he suf-
fered actual persecution by the Sandinistas. Robleto’s mother
testified generally that the Sandinistas harassed the entire
family due to their association with the Somoza government,
but she failed to identify any specific persecution suffered by
Robleto. Robleto’s brother, Sergio, however, was detained by
6236 ROBLETO-PASTORA v. HOLDER
the Sandinistas for several hours in 1981 based on suspicions
that he was involved with a school bombing. Another brother,
Alvaro, was also detained by the Sandinistas in 1982, and was
beaten and tortured. Robleto further testified that he is related
to Eden Pastora, a famous anti-Sandinista leader.
Noting the 2006 reelection of Sandinista leader, Daniel
Ortega, Robleto testified that he feared returning to Nicara-
gua. He alleged that the government would think he was an
American spy, but cited no basis for this fear. He also failed
to produce evidence that the current democratically-elected
administration was persecuting former Somoza-government
employees or members of Robleto’s family. In fact, he testi-
fied that several aunts and uncles from both sides of his fam-
ily, and at least one grandparent, still live in Nicaragua, and
his mother testified that she and her husband had gone back
to visit since leaving in the 1980s.
Citing, among other things, Robleto’s aggravated felony,
the IJ denied Robleto’s application for asylum.1 The IJ also
denied his application for withholding based on his failure to
establish past persecution or a well-founded fear of persecu-
tion, and ordered him removed to Nicaragua.
B. BIA Decision
On March 27, 2007, the BIA dismissed Robleto’s appeal
from the IJ’s decision finding him removable as charged and
denying his applications for relief. The BIA held that the IJ
properly pretermitted Robleto’s new asylum application based
on his aggravated felony conviction, and concluded that
Robleto failed to establish that he was entitled to withholding
1
The IJ concluded that Robleto had obtained asylum derivatively
through his father. While it is unclear from the record whether his grant
of asylum was primary or derivative, it was nonetheless his burden to
establish past persecution or a well-founded fear of future persecution. See
Unuakhaulu v. Gonzales, 416 F.3d 931, 937-39 (9th Cir. 2005).
ROBLETO-PASTORA v. HOLDER 6237
of removal. The BIA rejected Robleto’s contentions that he
retained the status of an asylee, and that such status entitled
him to a presumption of a well-founded fear of persecution.
Noting that his original asylum application contained no alle-
gation of past persecution, the BIA held that a prior grant of
asylum was insufficient to establish the presumption. The
BIA noted that Robleto presented no evidence that he would
be of any interest to the current administration, or that it oth-
erwise persecuted former Somoza-government employees or
relatives of former government employees. Accordingly, the
BIA concluded that Robleto failed to establish a likelihood of
future persecution in Nicaragua.
The BIA also concluded that Robleto’s status was that of
a lawful permanent resident, not an asylee, and that he
retained that status until a final order of removal. Thus, it con-
cluded that Robleto’s request to apply for adjustment of status
under section 209(b) in connection with a waiver of inadmis-
sibility under section 209(c) “made no sense.” Finally, the
BIA concluded that Robleto’s due process rights were not
violated when the IJ denied his request for a continuance to
obtain his immigration records because he failed to establish
prejudice resulting from the denial.
On April 20, 2007, Robleto filed a motion for reconsidera-
tion with respect to the BIA’s determination that he was ineli-
gible to apply for adjustment of status under section 209(b).
On May 3, 2007, the BIA denied Robleto’s motion to recon-
sider. Robleto filed timely petitions for review of that order
and the March 27, 2007, order dismissing his appeal.2
2
Petitioner presents no independent grounds challenging the order deny-
ing his motion to reconsider. Accordingly, we deny his petition for review
of that order for the reasons set forth herein.
6238 ROBLETO-PASTORA v. HOLDER
II.
A. Jurisdiction and Standards of Review
We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to
review final orders of removal involving “constitutional
claims or questions of law,” such as the ones presented in
Robleto’s petitions. See Morales-Alegria v. Gonzales, 449
F.3d 1051, 1053 (9th Cir. 2006). Where the BIA conducts its
own review of the evidence and law, “our review is limited
to the BIA’s decision, except to the extent the IJ’s opinion is
expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957
(9th Cir. 2006) (citation and internal quotation marks omit-
ted).
We review the BIA’s determination of purely legal ques-
tions de novo. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th
Cir. 2004). We may reverse the BIA’s determination that an
applicant is ineligible for asylum or withholding of removal
“only if the evidence presented by [the applicant] is such that
a reasonable fact-finder would be compelled to conclude that
the requisite fear of persecution existed.” Khourassany v. INS,
208 F.3d 1096, 1100 (9th Cir. 2000); see also INS v. Elias-
Zacarias, 502 U.S. 478, 481 n.1 (1992) (noting that “[t]o
reverse the BIA finding we must find that the evidence not
only supports that conclusion, but compels it”) (emphasis in
original).
B. Application for Asylum and Withholding of Removal
We begin with the most straightforward of petitioner’s
claims for relief: his applications for asylum and withholding
of removal under the INA and the CAT. “An application for
asylum under 8 U.S.C. § 1158 is generally considered an
application for withholding of removal under 8 U.S.C.
§ 1231(b)(3).” Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th
Cir. 2006) (citing 8 C.F.R. § 1208.3(b)). For asylum applica-
tions filed after April 1, 1997, an applicant is also considered
ROBLETO-PASTORA v. HOLDER 6239
for eligibility for withholding of removal under the CAT. See
8 C.F.R. § 208.13(c)(1).
[1] “An alien is eligible for asylum relief if she can prove
that she is a refugee, which she can establish by proving either
actual past persecution or a well-founded fear of future perse-
cution” on account of race, religion, nationality, membership
in a particular social group, or political opinion. Lolong v.
Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007); 8 U.S.C.
§ 1101(a)(42)(A). The agent(s) of persecution must be “the
government or . . . persons or organizations which the govern-
ment is unable or unwilling to control.” Reyes-Reyes v. Ash-
croft, 384 F.3d 782, 788 (9th Cir. 2004) (internal quotation
marks omitted). “Once an applicant demonstrates past perse-
cution, there is a presumption of a well-founded fear of future
persecution.” Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th
Cir. 2000).
[2] Robleto argues that he is eligible for asylum and with-
holding based on his previous grant of asylum, which he
asserts entitles him to a presumption of a well-founded fear of
future persecution. However, even assuming that Robleto’s
previous grant of asylum was based on actual past persecu-
tion, the BIA correctly determined that he is currently ineligi-
ble for asylum due to his aggravated felony conviction.3
Rendon v. Mukasey, 520 F.3d 967, 973 (9th Cir. 2008) (recog-
nizing that an alien convicted of an aggravated felony is ineli-
gible for asylum) (citing U.S.C. §§ 1158(b)(2)(A)(ii),
(b)(2)(B)(I)); see also 8 C.F.R. § 1208.13(c)(1) (providing
that for applications filed after April 1, 1997, an applicant
“shall not qualify for asylum” if he has been convicted of an
aggravated felony) (emphasis added).
[3] While Robleto’s conviction precludes his current asy-
lum application, it does not preclude his application for with-
holding of removal under section 241(b)(3) of the INA. 8
3
Robleto does not contest that his conviction is an aggravated felony.
6240 ROBLETO-PASTORA v. HOLDER
U.S.C. § 1231(b)(3).4 “ ‘To qualify for withholding of
removal, an alien must demonstrate that it is more likely than
not that he would be subject to persecution on one of the spec-
ified grounds.’ ” Zehatye, 453 F.3d at 1190 (quoting Al-Harbi
v. INS, 242 F.3d 882, 888 (9th Cir. 2001)). The “standard for
withholding of removal is more stringent than the well-
founded fear standard governing asylum,” and “requires
objective evidence that it is more likely than not that the alien
will be subject to persecution upon deportation.” Id. (citations
and quotation marks omitted). While a showing of past perse-
cution entitles an alien to a presumption of eligibility for with-
holding of removal, it is the alien’s burden to establish such
persecution. Fedunyak v. Gonzales, 477 F.3d 1126, 1130 (9th
Cir. 2007); Unuakhaulu, 416 F.3d at 938-39.
The BIA determined that Robleto’s prior grant of asylum
was insufficient to establish a presumption of a well-founded
fear of future persecution based on past persecution. We
agree.
[4] Here, neither the record nor Robleto’s own testimony
establishes past persecution. While Robleto’s original asylum
application identifies incidents from the early 1980s involving
his brothers, Sergio and Alvaro, it contains no allegation that
Robleto himself was persecuted. See Prasad v. INS, 47 F.3d
336, 340 (9th Cir. 1995) (concluding that “attacks on family
members do not necessarily establish a well-founded fear of
persecution absent a pattern of persecution tied to the petition-
4
Robleto’s aggravated felony does not bar him from applying for with-
holding of removal under 8 U.S.C. § 1231(b)(3). Subsection (b)(3)(B)(ii)
provides that an alien convicted of a “particularly serious crime” is ineligi-
ble for withholding of removal. The statute authorizes the Attorney Gen-
eral to designate a crime “particularly serious” and provides that any
aggravated felony resulting in a sentence of five years or more “shall be
considered . . . a particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B).
Here, Robleto’s conviction did not result in a sentence of five or more
years, and the Attorney General has not otherwise determined that his
crime is “particularly serious.”
ROBLETO-PASTORA v. HOLDER 6241
er[ ]”). Moreover, Robleto acknowledged during the immigra-
tion proceedings that, other than losing his job, he was not
personally targeted by the Sandinistas. Even in his 2006 appli-
cation for asylum and withholding of removal, Robleto identi-
fied no instances of persecution involving himself. Based on
Robleto’s failure to establish that his prior grant of asylum
was based on past persecution, we conclude that the BIA cor-
rectly determined that he was not entitled to a presumption of
a well-founded fear of persecution.
Furthermore, we find that the record supports the BIA’s
determination that Robleto failed to show a likelihood of
future persecution in Nicaragua. Robleto presented no evi-
dence indicating that the current administration persecutes
former employees of the Somoza government or family mem-
bers of those who opposed the Sandinistas more than twenty
years ago. Moreover, Robleto failed to present a plausible
basis for his alleged fear of returning to Nicaragua. Rather, he
testified that he thought that the current Nicaraguan adminis-
tration would think he was an American spy because he had
unsuccessfully tried to enlist in the United States Army in the
early 1990s. He did not indicate how the administration would
know this fact, or why it would lead the government to
believe he was a spy, or even that the government actually
persecutes American “spies.” Finally, he offered no evidence
that any family member or former government employee is
persecuted by the current Nicaraguan administration, and
indicated that several of his aunts and uncles from both sides
of his family, and at least one grandparent, still live in Nicara-
gua.
[5] Based on this record, we are not compelled to reach a
conclusion contrary to the BIA’s. See Khourassany, 208 F.3d
at 1100. Neither can we conclude that petitioner is entitled to
relief under the CAT, as there was no evidence regarding a
likelihood that Robleto would be tortured upon his return. See
Hamoui v. Ashcroft, 389 F.3d 821, 826-27 (9th Cir. 2004)
(noting that to be eligible for withholding under the CAT, the
6242 ROBLETO-PASTORA v. HOLDER
applicant must establish that he is “more likely than not” to
be tortured upon removal). Based on the foregoing, we con-
clude that the BIA’s determination is supported by the record,
and that Robleto is not entitled to withholding from removal
under the INA or the CAT.
C. Asylum Status and Adjustment under Section 209(b)
and (c)
We turn now to petitioner’s other claims, which are inter-
connected and somewhat circular in nature. Robleto’s thesis
is that even though his status was adjusted to lawful perma-
nent resident in 1988, he simultaneously retains his status as
an asylee. He argues that under the relevant statutory and reg-
ulatory scheme, asylum status remains intact unless it is for-
mally terminated. Further, Robleto argues that by virtue of his
continued status as an asylee, he is eligible to “re-adjust” his
status to lawful permanent resident under section 209(b) in
connection with a waiver of inadmissibility under 209(c), and
thereby avoid removal. We reject his arguments.
1. Termination of Asylum Status
Robleto alleges that the BIA erred by ordering him
removed without first formally terminating his asylum status.
He asserts that he retained his asylum status despite his acqui-
sition of LPR status because adjustment of status is not an
articulated basis for terminating asylum. See 8 U.S.C.
§ 1158(c)(2).5 Petitioner is correct that acquisition of LPR sta-
5
Subsection (c)(2) specifically provides that an alien’s asylum status
may be terminated if:
(A) the alien no longer meets the conditions described in sub-
section (b)(1) [pertaining to eligibility for asylum] owing to a
fundamental change in circumstances;
(B) the alien meets a condition described in subsection (b)(2)
[setting forth grounds that make an alien ineligible for asylum];
ROBLETO-PASTORA v. HOLDER 6243
tus is not an enumerated basis for terminating asylum status.
However, that does not answer the question of whether
respondent could order him removed without first formally
terminating his asylum status. Because we conclude that
Robleto was a lawful permanent resident and not an asylee at
the time of his removal, we conclude that the INA’s asylum
termination provisions did not apply to him, and accordingly,
that no formal termination was required.
[6] Section 208(c)(1) of the INA provides, in relevant part,
that, “[i]n the case of an alien granted asylum under subsec-
tion (b) of this section, the Attorney General — (A) shall not
remove or return the alien to the alien’s country of nationali-
ty.” 8 U.S.C. § 1158(c)(1)(A) (emphasis added).
[7] This prohibition against removal of an asylee is quali-
fied by section 208(c)(2), which provides that “[a]sylum
granted under subsection (b) . . . does not convey a right to
remain permanently in the United States . . . .” 8
U.S.C. § 1158(c)(2). Subsection (c)(2) further provides that
asylum “may be terminated if the Attorney General deter-
mines that,” among other things, the alien no longer meets the
conditions of subsection (b)(1) [i.e., no longer meets the defi-
(C) the alien may be removed, pursuant to a bilateral or multi-
lateral agreement, to a country (other than the country of the
alien’s nationality or, in the case of an alien having no national-
ity, the country of the alien’s last habitual residence) in which the
alien’s life or freedom would not be threatened on account of
race, religion, nationality, membership in a particular social
group, or political opinion, and where the alien is eligible to
receive asylum or equivalent temporary protection;
(D) the alien has voluntarily availed himself or herself of the
protection of the alien’s country of nationality . . . ; or
(E) the alien has acquired a new nationality and enjoys the pro-
tection of the country of his or her new nationality.
8 U.S.C. § 1158(c)(2).
6244 ROBLETO-PASTORA v. HOLDER
nition of a refugee],6 has voluntarily availed himself of the
protection of his native country, has acquired a new national-
ity, or meets a condition set forth in subsection (b)(2), which
sets forth bars to asylum eligibility. See 8 U.S.C.
§ 1158(b)(2), (c)(2).
[8] Section 208(c)(3) of the INA, entitled “Removal when
asylum is terminated,” provides that an alien “described in
paragraph [(c)](2) is subject to any applicable grounds of
inadmissibility or deportability under section [sic] 1182(a)
and 1227(a) of this title, and the alien’s removal or return
shall be directed by the Attorney General in accordance with
sections 1229a and 1231 of this title.” 8 U.S.C. § 1158(c)(3)
(footnote omitted).
[9] Despite its title, subsection (c)(3) does not explicitly
require that an asylee’s status be terminated prior to removal.
Rather, it simply provides that an alien “described in para-
graph (2)” — that is, an alien who is eligible for termination
— is subject to removal on the same grounds as any other
alien. The attendant regulations provide more detail regarding
the context and bases for terminating asylum status prior to
removal. See, e.g., 8 C.F.R. §§ 208.22, 208.24, 1208.22,
1208.24 (allowing asylum officers to terminate asylum status
if they determine, after an interview, that qualifying grounds
exist).7 While these regulations seem to require formal termi-
6
Subsection (b)(1)(A) provides, in relevant part:
The Secretary of Homeland Security or the Attorney General
may grant asylum to an alien who has applied for asylum . . . if
the Secretary of Homeland Security or the Attorney General
determines that such alien is a refugee within the meaning of sec-
tion 1101(a)(42)(A) of this title.
8 U.S.C. § 1158(b)(1)(A) (emphasis added).
7
8 C.F.R. § 1208.22 provides, in relevant part, that “[a]n alien who has
been granted asylum may not be deported or removed unless his or her
asylum status is terminated pursuant to § 1208.24.” Section 1208.24(a)
provides, in relevant part:
ROBLETO-PASTORA v. HOLDER 6245
nation according to specifically enumerated grounds, they
appear only to address termination of asylum for asylees who
have not yet adjusted status to that of lawful permanent resi-
dent. Thus, we need not consider whether, even for such indi-
viduals, these regulations are exhaustive.8
Petitioner suggests that because the statute and attendant
regulations do not list acquisition of LPR status as a basis for
[A]n asylum officer may terminate a grant of asylum made under
the jurisdiction of an asylum officer or a district director if fol-
lowing an interview, the asylum officer determines that:
(1) There is a showing of fraud in the alien’s application such
that he or she was not eligible for asylum at the time it was
granted;
(2) As to applications filed on or after April 1, 1997, one or
more of the conditions described in section 208(c)(2) of the Act
exist; or
(3) As to applications filed before April 1, 1997, the alien no
longer has a well-founded fear of persecution upon return . . . or
the alien has committed any act that would have been grounds for
denial of asylum under § 1208.13(c)(2).
8
Although we conclude that these regulations do not apply to petitioner,
his reliance on them presents other problems, namely, their apparent con-
flict with the INA’s general removal provision. While the plain language
of 8 C.F.R. § 1208.22 constrains termination of asylum status to the
grounds enumerated in 8 C.F.R. § 1208.24, those grounds do not encom-
pass all the grounds for removability set forth in section 237(a), the INA’s
general removal provision. See 8 U.S.C. § 1227(a). For example, although
an alien is removable under section 237(a) for committing two crimes of
moral turpitude, illegal voting, or spousal abuse, these are not grounds for
termination under 8 C.F.R. § 1208.24. Thus, an asylee convicted of two
crimes of moral turpitude, for example, would not be removable under
section 1208.22. This anomalous result is inconsistent with the principle
articulated in section 208(c)(2) of the INA, namely, that a grant of asylum
does not convey a right to remain permanently in the country, as well as
with the INA’s general removal provision, which states that “[a]ny alien”
may be removed. See Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir.
2006) (quoting 8 U.S.C. § 1227(a)) (emphasis in original).
6246 ROBLETO-PASTORA v. HOLDER
termination of asylum, he must, therefore, retain that status
simultaneously with his LPR status. However, petitioner’s
reliance on the silence of the statute and regulations cannot
overcome the logic of the statutory scheme, which treats
asylees and lawful permanent residents differently, or the
BIA’s interpretation of the statute as applying only to asylees
who have not yet adjusted status.
Each status has legally distinctive features. Compare, e.g.,
8 U.S.C. § 1101(a)(20) (“The term ‘lawfully admitted for per-
manent residence’ means the status of having been lawfully
accorded the privilege of residing permanently in the United
States.”) with 8 U.S.C. § 1158(c)(2) (“Asylum . . . does not
convey a right to remain permanently in the United States . . .
.”). Moreover, asylum status may be terminated simply by vir-
tue of the fact that an alien no longer qualifies as a refugee.
See 8 U.S.C. § 1158(c)(2)(A); 8 C.F.R. § 1208.24(a)(3) (pro-
viding that for asylum applications filed before April 1, 1997,
an asylee’s status may be terminated if the alien “no longer
has a well-founded fear of persecution”). Not so with lawful
permanent resident status, a fact which presents a significant
incentive for an alien to adjust his status to that of lawful per-
manent resident.9 Here, petitioner availed himself of that
incentive and acquired LPR status. He retained that status
until a final order of removal was entered. See 8 C.F.R.
§ 1001.1(p).10
9
We note that the REAL ID Act of 2005 amended section 209(b) so that
the Secretary of Homeland Security is no longer limited by the number of
adjustments to LPR status she may grant to asylees each fiscal year. See
REAL ID Act of 2005, Pub. L. No. 109-13, § 101(g)(1)(B)(I), 119 Stat.
231, 305 (2005) (amending 8 U.S.C. § 1159(b) (1990)).
10
8 C.F.R. § 1001.1(p) provides:
The term lawfully admitted for permanent residence means the
status of having been lawfully accorded the privilege of residing
permanently in the United States as an immigrant in accordance
with the immigration laws, such status not having changed. Such
status terminates upon entry of a final administrative order of
exclusion, deportation, removal, or rescission.
ROBLETO-PASTORA v. HOLDER 6247
[10] Based on the foregoing, we conclude that petitioner,
having chosen to become a lawful permanent resident with its
attendant benefits, was no longer an asylee at the time of his
removal proceedings, and was therefore not covered by the
statutory and regulatory provisions concerning formal termi-
nation of asylum status.
2. “Re-adjustment” and Waiver under Section 209
Having determined that petitioner’s status during the
removal proceedings was that of a lawful permanent resident
and not an asylee, we next consider his contention that he is
entitled to seek relief from removal by “re-adjusting” his sta-
tus to lawful permanent resident. We conclude that he is not.
Petitioner seeks to avoid removal by applying to “re-adjust”
status under section 209(b).11 That section, however, requires
that the asylee be admissible. 8 U.S.C. § 1159(b)(5). Peti-
tioner concedes inadmissibility based on his aggravated fel-
ony conviction, and seeks to overcome this barrier to
adjustment by seeking a waiver of inadmissibility pursuant to
section 209(c). That section provides the Secretary or the
Attorney General with discretion to waive inadmissibility “for
11
Section 209(b) provides in relevant part: xxA
The Secretary of Homeland Security or the Attorney General . . .
may adjust to the status of an alien lawfully admitted for perma-
nent residence the status of any alien granted asylum who—
(1) applies for such adjustment,
(2) has been physically present in the United States for at
least one year after being granted asylum,
(3) continues to be a refugee within the meaning of section
1101(a)(42)(A) of this title or a spouse or child of such a ref-
ugee,
(4) is not firmly resettled in any foreign country, and
(5) is admissible . . . .
8 U.S.C. § 1159(b).
6248 ROBLETO-PASTORA v. HOLDER
humanitarian purposes, to assure family unity, or when it is
otherwise in the public interest.” 8 U.S.C. § 1159(c).
The BIA rejected petitioner’s claim for relief under section
209, reasoning that it made “no sense” in light of 8 U.S.C.
§ 1001.1(p), which provides that LPR status remains intact
until issuance of a final order of removal. The BIA deter-
mined that petitioner retained his LPR status, not asylee sta-
tus, and as such, could not avail himself of section 209(b) and
(c).
[11] Not surprisingly, we can find no case squarely
addressing the issue of whether an alien who has adjusted sta-
tus from asylee to LPR may seek relief from removal under
section 209. The statute provides for an asylee’s adjustment
of status to lawful permanent resident, a process petitioner
completed in 1988. Accordingly, section 209(b) would appear
to be inapplicable. Further, the waiver of inadmissibility in
section 209(c) appears to be designed for consideration of
inadmissibility when the issue is first considered, i.e., soon
after the alien’s entry into the United States. Thus, we agree
with the BIA that the petitioner’s invocation of section 209
“makes no sense” because it does not apply to lawful perma-
nent residents seeking relief from removal.
We find support for our perspective in cases from our sister
circuits, which have held that refugees who adjust status to
lawful permanent resident are ineligible for relief from
removal under section 209(a) in connection with a waiver of
inadmissibility under section 209(c). Gutnik v. Gonzales, 469
F.3d 683, 692 (7th Cir. 2006) (holding that an alien who
adjusted status from refugee to LPR was no longer eligible to
apply for a waiver of inadmissibility in connection with an
adjustment of status under section 209); Kholyavskiy v.
Mukasey, 540 F.3d 555, 569 n.16 (7th Cir. 2008) (“We have
held that, when an individual adjusts his status to that of law-
ful permanent resident, he still may meet the definition of a
refugee under 8 U.S.C. § 1101(a)(42); however, he no longer
ROBLETO-PASTORA v. HOLDER 6249
retains his refugee status under 8 U.S.C. § 1157.”); Saintha v.
Mukasey, 516 F.3d 243, 252-53 (4th Cir. 2008) (applying
Chevron deference to the BIA’s determination that a refugee
who had already acquired LPR status was precluded from
subsequently re-adjusting to LPR status).
While these cases involve section 209(a), which concerns
adjustment of status from refugee to LPR, they are nonethe-
less instructive. In Gutnik, the Seventh Circuit deferred to the
BIA’s determination that relief under section 209 was
unavailable to a removable refugee who had previously
adjusted his status to that of LPR. Gutnik, 469 F.3d at 692.
The BIA adopted the IJ’s reasoning that Gutnik was ineligible
to apply for the waiver of inadmissibility under
8 U.S.C. § 1159(c) because his prior adjustment of status to
LPR terminated his refugee status. Id. at 685, 689. The BIA
also noted that allowing Gutnik to apply for a waiver under
section 209(c) would place “him at an unfair advantage over
other aliens and would improperly insulate him from his crim-
inal misconduct which occurred many years after his arrival
as a refugee.” Id. at 689. The BIA’s reasoning appears to
reflect a concern that non-refugee aliens who had previously
adjusted status and were facing removal would not have simi-
lar opportunities to “readjust” under section 209.12
This reasoning echoes the concern we voiced in
Kaganovich in deciding that refugee status should not be used
to insulate aliens from the otherwise applicable removal stat-
ute. See Kaganovich, 470 F.3d at 898 (finding persuasive the
BIA’s holding in In re Smriko, 23 I. & N. Dec. 836 (BIA
2005) that 8 U.S.C. § 1157(c)(4) should not be read to shield
refugees from the INA’s general removal provision).
Similarly, in Saintha, the Fourth Circuit deferred to the
12
Although section 245(a) of the INA allows an alien to apply for
adjustment of status, that section, unlike section 209, requires the alien to
have a nonimmigrant visa immediately available. See 8 U.S.C. § 1255(a).
6250 ROBLETO-PASTORA v. HOLDER
BIA’s interpretation of section 209(a)(1) as precluding relief
from removal for a refugee who had previously acquired LPR
status.13 Saintha, 516 F.3d at 247, 253. The BIA rejected Sain-
tha’s application to adjust status a second time under section
209(a) in connection with a waiver of inadmissibility under
section 209(c), concluding that the plain language of section
209(a)(1) precluded “a refugee who has already acquired LPR
status . . . from subsequently re-adjusting to LPR status.” Id.
at 247. Specifically, the BIA read section 209(a)(1) as provid-
ing three criteria for adjusting status, one of which requires
the alien not to have already “acquired permanent resident
status.” Id. at 253. Because Saintha had already acquired LPR
status, he could not satisfy this criterion, and therefore was
ineligible to adjust status a second time. Id. The Fourth Cir-
cuit agreed with the BIA’s interpretation, noting that it was
“logical to conclude that an alien . . . who has previously
acquired permanent resident status but was later rendered
removable by the commission of multiple crimes, is ineligible
to acquire LPR status again under § 1159.” Id.
13
Section 209(a)(1) provides in relevant part:
a) Criteria and procedures applicable for admission as immigrant;
effect of adjustment.
(1) Any alien who has been admitted to the United States
under section 1157 of this title —
(A) whose admission has not been terminated by the Sec-
retary of Homeland Security or the Attorney General pursu-
ant to such regulations as the Secretary of Homeland
Security or the Attorney General may prescribe,
(B) who has been physically present in the United States
for at least one year, and
(C) who has not acquired permanent resident status,
shall, at the end of such year period, return or be returned to the
custody of the Department of Homeland Security for inspection
and examination for admission to the United States as an immi-
grant in accordance with the provisions of sections 1225, 1229a,
and 1231 of this title.
8 U.S.C. § 1159(a)(1) (emphasis added).
ROBLETO-PASTORA v. HOLDER 6251
We find the Fourth and Seventh Circuits’ interpretation of
section 209(a) to be persuasive. It is consistent with our con-
clusion that petitioner was a lawful permanent resident and
not an asylee during the removal proceedings, and we see no
reason why we should read 209(b) in a contrary manner with
respect to asylees who have acquired lawful permanent resi-
dent status.14 Although section 209(a) explicitly provides that
adjustment under that section is unavailable to refugees who
have already “acquired permanent resident status,” see
8 U.S.C. § 1159(a)(1)(C), and section 209(b) contains no such
provision, the language of section 209(b) is nonetheless clear.
It provides the Secretary of Homeland Security or the
Attorney General with discretion to “adjust to the status of an
alien lawfully admitted for permanent residence the status of
any alien granted asylum . . . .” 8 U.S.C. § 1159(b). It does
not provide for “re-adjustment” of status for asylees who have
already acquired LPR status, and we decline to expand the
statute’s coverage to such individuals. To do so would pro-
vide unique relief to asylees who have acquired LPR status,
while precluding such relief for similarly situated refugees,
many of whom, unlike petitioner, will not have been con-
victed of an aggravated felony.
14
Petitioner cites several BIA cases in which a lawful permanent resi-
dent was permitted to seek relief from removal by “re-adjusting” status to
that of LPR pursuant to section 245(a) of the INA in connection with sec-
tion 212’s various waiver provisions. Those cases are inapposite as they
concern distinct statutes whose requirements the aliens met. See In re
Mendez-Moralez, 21 I. & N. Dec. 296 (BIA 1996); Matter of Gabryelsky,
20 I. & N. Dec. 750 (BIA 1993). More precisely, section 245(a) applies
to any alien “who was inspected and admitted or paroled into the United
States” and who has a nonimmigrant visa immediately available. 8 U.S.C.
§ 1255(a). By contrast, section 209(b) is much narrower, and only pro-
vides for an asylee’s adjustment of status to LPR. As set forth above, peti-
tioner is no longer an asylee. Petitioner’s reliance on In re K-A-, 23 I. &
N. Dec. 661 (BIA 2004) is also inapposite. In that case, although the BIA
determined that an asylee could apply for relief from removal under sec-
tion 209(b) and (c), that asylee had not previously acquired LPR status.
6252 ROBLETO-PASTORA v. HOLDER
Significantly, the legislative history of the INA’s asylum
provisions supports our reluctance to treat refugees and
asylees disparately, as it indicates that the two classes of
aliens were to have essentially “equivalent status” under the
law. The INA’s asylum provisions were enacted into law pur-
suant to the Refugee Act of 1980. The Refugee Act, in addi-
tion to “regulariz[ing] the procedures governing the admission
of refugees into the United States,” INS v. Stevic, 467 U.S.
407, 425 (1984), required the Attorney General to establish
procedures for “determining asylum claims filed by aliens
who are physically present in the United States.” Refugee Act
of 1980, S. Rep. No 96-256, at 9 (1980), reprinted in 1980
U.S.C.C.A.N. 141, 149. The legislative history shows that
Congress saw asylees and refugees as having similar status
under the law, indicating that those granted asylum were to be
“placed into a conditional admission status equivalent in most
respects to that provided under current law to refugees.” Id.(emphasis added).
Nothing in the legislative history indicates that asylum sta-
tus was so distinct that it conferred an exemption from stat-
utes governing the conduct of other aliens admitted to the
United States, or otherwise provided additional relief from
removal that was unavailable to refugees. See Kaganovich,
470 F.3d at 898 (agreeing with BIA’s determination that
INA’s refugee provisions could not be read to immunize refu-
gees from the INA’s removal provision). Consistent with this
history, we decline to read section 209(b) as providing asylees
who have acquired LPR status with additional avenues for
avoiding removal that are otherwise foreclosed to similarly
situated refugees.
[12] As set forth above, at the time of his request for “re-
adjustment” Robleto was, in fact, an alien lawfully admitted
for permanent residence. He retained that status until a final
order of removal. See 8 C.F.R. § 1001.1(p). Section 209(b),
by its terms, contemplates an asylee’s adjustment of status to
LPR, and does not extend relief to aliens who have already
ROBLETO-PASTORA v. HOLDER 6253
acquired LPR status. This plain reading of section 209(b) is
consistent with decisions of the Seventh and Fourth Circuits
holding that relief from removal under 209(a) is unavailable
to refugees who have adjusted status. Based on the foregoing,
we deny Robleto’s petition and hold that an alien who
acquired lawful permanent resident status based on a prior
grant of asylum may not “re-apply” for LPR status and relief
from removal under section 209(b).
D. Due Process Claim
Finally, petitioner asserts that the IJ denied him due process
by denying his request for a continuance to obtain his immi-
gration records.
[13] “[A]n alien who faces deportation is entitled to a full
and fair hearing of his claims and a reasonable opportunity to
present evidence on his behalf.” Colmenar v. INS, 210 F.3d
967, 971 (9th Cir. 2000); see also Cano-Merida v. INS, 311
F.3d 960, 964 (9th Cir. 2002). In order to show a due process
violation, an applicant must show prejudice. Cano-Merida,
311 F.3d at 965. Prejudice is shown where the violation
potentially affected the outcome of the proceedings. Id.[14] Petitioner fails to establish prejudice. Although the IJ
conducted the removal proceedings in the absence of petition-
er’s full immigration file, petitioner was able to present his
claims for relief without it. Moreover, the BIA had the full
record before it when examining petitioner’s appeal. As set
forth above, nothing in petitioner’s file changes the fact that
he is currently ineligible for asylum. Moreover, even after
examining petitioner’s full immigration file, the BIA deter-
mined that petitioner failed to establish that his prior grant of
asylum was based on actual, past persecution or that he was
likely to suffer persecution upon return to Nicaragua. We find
that the record supports this view. Accordingly, petitioner has
failed to show that a continuance would have affected the out-
come of the proceedings.
6254 ROBLETO-PASTORA v. HOLDER
III.
[15] Based on the foregoing, we conclude that the BIA did
not err in denying petitioner’s applications for asylum and
withholding of removal under the INA and the CAT. Further,
we conclude that petitioner retained his status as a lawful per-
manent resident during the removal proceedings, and there-
fore was not covered by section 208(c)’s termination
provisions and its attendant regulations. We also conclude
that, as an alien with lawful permanent resident status, peti-
tioner was not eligible to seek relief from removal under sec-
tion 209(b) of the INA in connection with a waiver of
inadmissibility under section 209(c). Finally, we conclude
that the denial of petitioner’s request for a continuance does
not amount to a due process violation. Accordingly, the peti-
tions for review are DENIED.