Antonio Rodriguez-Gutierrez v. Eric Holder, Jr. , 498 F. App'x 727 ( 2012 )

FILED
NOT FOR PUBLICATION NOV 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANTONIO LEONARDO RODRIGUEZ- No. 11-70323
GUTIERREZ,
Agency No. A091-781-996
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 13, 2012 **
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Antonio Leonardo Rodriguez-Gutierrez, a native and citizen of Mexico,
petitions pro se for review of an order of the Board of Immigration Appeals
(“BIA”) dismissing his appeal from an order of removal of an immigration judge
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“IJ”) and denying his motion to remand. Our jurisdiction is governed by 8 U.S.C.
§ 1252. We review for an abuse of discretion the BIA’s denial of a motion to
remand and review de novo questions of law. Romero-Ruiz v. Mukasey, 538 F.3d
1057, 1061-62 (9th Cir. 2008). We deny in part and dismiss in part the petition for
review.
The BIA correctly concluded that Rodriguez-Gutierrez was statutorily
ineligible for a waiver of inadmissibility under former section 212(c) of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(c) (1996) (repealed),
because he had never been lawfully admitted for permanent residence in the United
States by reason of the fact that he had erroneously acquired permanent residency
in 1989 through an amnesty program for which his 1984 felony conviction
rendered him statutorily ineligible. See id. § 1255a(a)(4)(B) (excluding from
eligibility for adjustment of status through amnesty any alien who has been
convicted of any felony); Segura v. Holder, 605 F.3d 1063, 1066-67 (9th Cir.
2010) (holding that an alien who was ineligible for lawful permanent residence at
the time of acquisition of that status has not been lawfully admitted as a permanent
resident and is consequently ineligible for section 212(c) relief).
The BIA also correctly concluded that the IJ lacked jurisdiction to adjudicate
Rodriguez-Gutierrez’s application for adjustment of status in conjunction with a
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waiver of inadmissibility under section 212(h) of the INA, 8 U.S.C. § 1182(h),
because Rodriguez-Gutierrez was an arriving alien, see Bona v. Gonzales, 425 F.3d
663, 667 (9th Cir. 2005), and he did not return to the United States through a grant
of advanced parole in order to pursue a previously filed application for adjustment
of status, as is required to trigger the IJ’s jurisdiction over adjustment applications
filed by arriving aliens in removal proceedings, see Matter of Silitonga,
25 I. & N. Dec. 89, 92 (BIA 2009); 8 C.F.R. § 1245.2(a)(1)(ii)(A)-(B). In light of
this disposition, we need not consider whether Rodriguez-Gutierrez is statutorily
eligible for adjustment of status. See Mendez-Alcaraz v. Gonzales, 464 F.3d 842,
844 (9th Cir. 2006) (declining to reach nondispositive challenges to a BIA order).
Rodriguez-Gutierrez’s claim that the IJ violated his right to due process by
not conducting a hearing on the merits of his applications for relief is unavailing
because he has not shown that he was statutorily eligible for the relief requested
and consequently cannot establish that the IJ’s refusal caused him to suffer any
prejudice. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).
Furthermore, the BIA properly exercised its discretion by denying
Rodriguez-Gutierrez’s informal motion to remand because he did not tender any
evidence to establish his eligibility for the relief that he would seek in remanded
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proceedings before the IJ. See Partap v. Holder, 603 F.3d 1173, 1175 (9th Cir.
2010) (per curiam).
To the extent that Rodriguez-Gutierrez argued below or raised before this
court that his 1984 conviction constituted neither a crime involving moral turpitude
nor an aggravated felony, that the doctrine of estoppel precluded the DHS from
charging him as an arriving alien, that the IJ should have considered his eligibility
for cancellation of removal and voluntary departure, and that the IJ violated his
right to equal protection, he has waived these contentions by failing to argue them
in his opening brief to this court. See Ghahremani v. Gonzales, 498 F.3d 993, 997
(9th Cir. 2007) (“Issues raised in a brief that are not supported by argument are
deemed abandoned.” (citation omitted)).
Finally, we lack jurisdiction to consider Rodriguez-Gutierrez’s contention
that the IJ should have conducted a separate hearing to rescind his status as a
lawful permanent resident, because Rodriguez-Gutierrez did not exhaust his
administrative remedies with respect to this claim. See Tijani v. Holder, 628 F.3d
1071, 1080 (9th Cir. 2010) (“We lack jurisdiction to review legal claims not
presented in an alien’s administrative proceedings before the BIA.”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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