Demyan Aguiar v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2023
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
DEMYAN AGUIAR, AKA Aguiar Demyan, No. 19-70888
AKA Demyan Unknown,
Agency No. A073-173-921
Petitioner,
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 15, 2022**
Pasadena, California
Before: BENNETT and COLLINS, Circuit Judges, and FOOTE,*** District Judge.
Petitioner Demyan Aguiar, a Brazilian citizen, petitions for review of the
order of the Board of Immigration Appeals (“BIA”) denying his request for
remand to pursue adjustment of status and upholding the decision of the
Immigration Judge (“IJ”) that found him ineligible for cancellation of removal and
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision without
oral argument. See FED. R. APP. P. 34(a)(2)(C).
***
The Honorable Elizabeth E. Foote, United States District Judge for the Western
District of Louisiana, sitting by designation.
that ordered him removed to Brazil. We have jurisdiction under § 242 of the
Immigration and Nationality Act, 8 U.S.C. § 1252, and we deny in part and dismiss
in part the petition.
1. During his removal proceedings, Aguiar took the first step towards
attempting to adjust his status to that of a lawful permanent resident by having his
U.S. citizen wife file an I-130 petition with U.S. Citizenship and Immigration
Services (“USCIS”). After granting Aguiar several continuances while awaiting
USCIS’s decision on the I-130 petition, the IJ ultimately declined to wait any
further, proceeded with a removal hearing in January 2018, and ordered Aguiar to
be removed. The IJ did so after concluding that, even if the I-130 petition was
granted, Aguiar had made an insufficient showing that he would merit a favorable
exercise of discretion so as to be granted adjustment of status. After Aguiar
appealed to the BIA, the I-130 petition was granted, and Aguiar then moved to
remand the matter to the IJ. However, the BIA concluded that Aguiar had “not
demonstrated eligibility for adjustment of status in the exercise of discretion,” and
it therefore both denied the motion for remand and upheld the IJ’s denial of a
continuance of the removal proceedings.
The standards governing a motion to remand “are for all practical purposes
the same” as for a motion to reopen, see Rodriguez v. INS, 841 F.2d 865, 867 (9th
Cir. 1987), and the BIA may properly deny such a motion if, inter alia, “the
2
movant would not be entitled to the discretionary grant of relief which he sought.”
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (citation omitted). Even
assuming Aguiar would be eligible for discretionary adjustment of status, 8 U.S.C.
§ 1255(a),1 we find no basis to set aside the BIA’s determination that Aguiar failed
to show that he merited a favorable exercise of discretion. The BIA applied the
correct legal standard in exercising that discretion, and it considered the relevant
factors. Specifically, the BIA concluded that Aguiar’s criminal history, coupled
with his failure to take advantage of rehabilitative opportunities, ultimately
weighed against a favorable exercise of discretion. Aguiar contends that the BIA
failed adequately to consider the positive factors supporting adjustment of status,
but we disagree. The BIA expressly considered Aguiar’s claims of remorse, his
explanations of his criminal history, and the documents submitted with his
appellate brief and motion to remand, which detailed the positive factors on which
Aguiar relied. The BIA’s explanation was sufficient. See Agonafer v. Sessions,
859 F.3d 1198, 1206 (9th Cir. 2017) (noting that the agency is not required to
“write an exegesis on every contention” (citation omitted)).
For similar reasons, the BIA properly upheld the IJ’s denial of a continuance
to await a decision on the I-130 application. An IJ may properly deny a
1
We therefore do not address the parties’ dispute over whether the BIA and the IJ
correctly concluded, in the alternative, that Aguiar had accrued unlawful presence
in the U.S. that would render him ineligible for adjustment of status.
3
continuance to await a decision on an application if the IJ determines that, even if
the application is granted and the alien is therefore eligible for discretionary relief,
the relevant factors do not support a favorable exercise of that discretion. Matter
of Hashmi, 24 I. & N. Dec. 785, 790, 793 (BIA 2009). As the BIA recognized, the
IJ noted many of the same negative factors that had been identified by the BIA.
The IJ also considered relevant positive discretionary factors, including Aguiar’s
marriage to a U.S. citizen, the fact that Aguiar attended school in the U.S., and the
time Aguiar spent in this country. The BIA properly upheld the IJ’s denial of a
continuance on this basis.
2. The agency properly concluded that Aguilar was not eligible for
cancellation of removal. To be eligible for that relief, an alien must be “physically
present in the United States for a continuous period of not less than 10 years
immediately preceding the date of such application.” 8 U.S.C. § 1229b(b)(1)(A).
Because Aguiar applied for cancellation of removal on January 12, 2018, he had to
show his continuous presence in the U.S. since January 2008. But Aguiar
informed the IJ that he had left the U.S. for Brazil “before 2010” and did not return
to the U.S. until “May 2010.” Because he was outside the U.S. for a “period in
excess of 90 days” within the relevant 10-year timeframe, the agency properly
concluded that he was ineligible for cancellation of removal. See 8 U.S.C.
§ 1229b(d)(2).
4
3. We lack jurisdiction to consider Aguiar’s claims that the IJ violated his
due process rights by failing adequately to develop the record and to advise him of
the relevant procedural and substantive requirements for various forms of relief,
because Aguiar did not raise them before the BIA. Had these claims been raised,
the BIA would not have been “powerless to grant the relief requested,” Carr v.
Saul, 141 S. Ct. 1352, 1361 (2021), and therefore Aguiar was required to present
those claims to the BIA before raising them here. See 8 U.S.C. § 1252(d)(1)
(stating that we may review a challenge to a final order of removal only if “the
alien has exhausted all administrative remedies available to the alien as of right”).
Even construing liberally his pro se papers before the BIA, see Agyeman v. INS,
296 F.3d 871, 878 (9th Cir. 2002), Aguiar failed to raise these due process claims
before the BIA. We therefore lack jurisdiction to consider them. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
The petition for review is DENIED IN PART AND DISMISSED IN
PART.
5