Veronica Canar Yanez v. Eric Holder, Jr. , 586 F. App'x 364 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 04 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERONICA PAULINA CANAR No. 10-71977
YANEZ,
Agency No. A073-050-375
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 19, 2014**
San Francisco, California
Before: THOMAS, Chief Judge, REINHARDT and CHRISTEN, Circuit Judges.
Veronica Canar Yanez, a native and citizen of Ecuador, petitions for review
of an order from the Board of Immigration Appeals (BIA) denying her application
*
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).
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for adjustment of status, and an Immigration Judge’s denial of her request for
voluntary departure. We have jurisdiction under 8 U.S.C. § 1252(d) to consider
Canar Yanez’s administratively exhausted claims. We dismiss in part and deny in
part Canar Yanez’s petition.1
1. To establish eligibility for adjustment of status an alien must prove she “is
eligible to receive an immigrant visa and is admissible to the United States for
permanent residence.” 8 U.S.C. § 1255(a)(2) (eligibility); see also 8 U.S.C. §
1229a(c)(4)(A)(i) (burden of proof). Here, evidence indicates that Canar Yanez is
permanently inadmissible for having “falsely represented . . . herself to be a citizen
of the United States.” 8 U.S.C. § 1182(a)(6)(C)(ii)(I). Canar Yanez argues she did
not falsely represent herself to be a citizen because she could have been claiming to
be a non-citizen national by applying for a passport using a Puerto Rican birth
certificate. This argument impermissibly shifts the burden of proof. See 8 C.F.R §
1240.8(d) (“If the evidence indicates that one or more of the grounds for
mandatory denial of the application for relief may apply, the alien shall have the
burden of proving by a preponderance of the evidence that such grounds do not
apply.”). Further, persons born in Puerto Rico are United States citizens. 8 U.S.C.
1
The parties are familiar with the facts, so we will not recount them
here.
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§ 1402. By claiming that she and both her parents were born in Puerto Rico, Canar
Yanez could not have been claiming to be a non-citizen national. Canar Yanez has
not met her burden of proving that she is admissible to the United States, and she is
therefore ineligible for adjustment of status.
2. Canar Yanez claims the BIA violated her right to due process by failing to
consider her argument that she did not sign the passport application. This claim
fails because Canar Yanez has not shown that she did not sign the application, or
that she was denied due process or prejudiced by any such denial. See Ram v.
Mukasey, 529 F.3d 1238, 1241 (9th Cir. 2008). The BIA adequately explained
that Canar Yanez had the burden of proving her passport application did not
include a claim to United States citizenship and that she failed to meet her burden.
Even assuming Canar Yanez did not sign the passport application, she admitted to
completing a passport application indicating she was born in Puerto Rico, and to
purchasing a counterfeit Puerto Rican birth certificate. These admissions are
sufficient to show that she falsely represented herself to be a citizen whether or not
she signed the passport application.
3. Because Canar Yanez did not argue before the BIA that her passport
application should not be considered as evidence, we lack jurisdiction to consider
that claim. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th
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Cir. 2004) (concluding that administrative exhaustion applies to due process claims
based on correctable procedural errors).
4. We also lack jurisdiction to review denial of Canar Yanez’s application for
voluntary departure because she failed to exhaust this claim by raising it before the
BIA. See 8 U.S.C. § 1252(d)(1).
PETITION DISMISSED IN PART AND DENIED IN PART.
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