Contreras-Portillo v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 30 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN CARLOS CONTRERAS- No. 22-326
PORTILLO, Agency No.
A094-320-457
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 8, 2023
San Francisco, California
Before: CHRISTEN and BRESS, Circuit Judges, and ANTOON, District
Judge.**
Juan Carlos Contreras-Portillo (Petitioner), a native and citizen of El
Salvador, petitions for review of an order of the Board of Immigration Appeals
(BIA) denying his motion to reconsider and reopen his immigration
proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
the petition.
We review for abuse of discretion the denial of a motion to reopen,
“although de novo review applies to the BIA’s determination of purely legal
questions.” Mejia v. Ashcroft, 298 F.3d 873, 876 (9th Cir. 2002). The BIA
does not abuse its discretion unless it “act[s] arbitrarily, irrationally, or contrary
to law.” Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). Because
the parties are familiar with the facts, we repeat them here only as necessary.
1. In his motion to reconsider and reopen, Petitioner argued that the BIA
should reopen the proceedings so that the immigration judge (IJ) could consider
Petitioner’s application for adjustment of status. The BIA concluded that
because Petitioner is an “arriving alien,” the IJ lacked jurisdiction over his
application and jurisdiction rested solely with U.S. Citizenship and Immigration
Services (USCIS). See 8 C.F.R. §§ 245.2(a)(1), 1245.2(a)(1).1 The BIA
alternatively ruled de novo that it would deny Petitioner’s application for
adjustment of status in the exercise of discretion even if Petitioner was not an
1
Petitioner, who initially entered the United States unlawfully but was
subsequently granted temporary protected status (TPS), argued that he was not
an “arriving alien” based on a now-rescinded USCIS decision applying the
Miscellaneous and Technical Immigration and Naturalization Amendments of
1991 (MTINA), Pub. L. 102-232, § 304, 105 Stat. 1733 (codified at 8 U.S.C.
§ 1254a note). We ordered the parties to be prepared at argument to address the
Fifth Circuit’s decision in Duarte v. Mayorkas, 27 F.4th 1044 (5th Cir. 2022),
which also analyzed MTINA and considered whether TPS holders qualify as
“arriving aliens” when they return from authorized travel outside the United
States. Id. at 1061. Because the BIA’s alternative holding is independently
sufficient to deny Contreras-Portillo’s petition for review, we do not address
MTINA or Duarte.
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“arriving alien.” See Torres-Valdivias v. Lynch, 786 F.3d 1147, 1152 (9th Cir.
2015) (“Adjustment of status under 8 U.S.C. § 1255 is a discretionary form of
relief.”). Petitioner argues that the BIA erred when it affirmed the IJ’s ruling
that he is an “arriving alien,” but he did not challenge the BIA’s discretionary
determination in his opening brief to this court, thus forfeiting the issue. See
Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010). Because the BIA’s
discretionary determination was independently sufficient to deny Petitioner’s
request for reopening to adjudicate his application for adjustment of status, we
do not address whether Petitioner was an “arriving alien.”
2. In its order denying Petitioner’s motion to reopen and reconsider, the
BIA also assumed that Petitioner was not an “arriving alien” and, ruling de
novo, denied his application for voluntary departure in the exercise of
discretion. We lack jurisdiction to reweigh the factors that the BIA considered
when it denied voluntary departure, but we retain jurisdiction to review
“constitutional claims or questions of law in challenges to denials of voluntary
departure.” Zamorano v. Garland, 2 F.4th 1213, 1221 (9th Cir. 2021) (quoting
Corro-Barragan v. Holder, 718 F.3d 1174, 1177 (9th Cir. 2013)).
Petitioner argues that the BIA legally erred by failing to consider relevant
discretionary criteria. We are not persuaded. When making a voluntary
departure determination, the agency must weigh “favorable and unfavorable
factors by evaluating all of them, assigning weight or importance to each one
separately and then to all of them cumulatively.” Campos-Granillo v. INS, 12
3 22-326
F.3d 849, 852 (9th Cir. 1993) (quotation and alterations omitted). Favorable
factors include “‘family ties within the United States; residence of long duration
in this country, particularly if residence began at a young age’ as well as ‘proof
of rehabilitation if a criminal record exists; and other evidence attesting to good
character.’” Zamorano, 2 F.4th at 1221 (quoting Campos-Granillo, 12 F.3d at
852 n.8). The IJ made findings about these factors when it denied Petitioner’s
application for cancellation of removal. The IJ found that the favorable factors
in Petitioner’s case were outweighed by unfavorable factors, which included
Petitioner’s lengthy criminal history, his “repeated and continuous . . . alcohol
abuse over the last 15 or 16 years,” his “negative immigration history,” and his
“lie[s] to [i]mmigration officials about his name and country of birth.” The BIA
expressly incorporated these factual findings when it denied Petitioner’s request
for voluntary departure. In doing so, it weighed the positive factors against
Petitioner’s immigration history, the nature of his prior entries into the United
States, and evidence of Petitioner’s criminal history and “unfavorable” conduct.
Contrary to Petitioner’s argument, the BIA applied the correct legal standard
and concluded that Petitioner did not warrant voluntary departure in the exercise
of discretion. The BIA did not legally err, and we lack jurisdiction to reweigh
its discretionary determination that Petitioner did not warrant voluntary
departure.
PETITION DENIED.
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