Ilya Ruchyev v. William Barr ( 2019 )

FILED
NOT FOR PUBLICATION
JUN 12 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ILYA FEDOROVECH RUCHYEV, No. 16-70874
Petitioner, Agency No. A029-126-231
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 10, 2019**
Honolulu, Hawaii
Before: THOMAS, Chief Judge, and CALLAHAN and CHRISTEN, Circuit
Judges.
Ilya Ruchyev, a native and citizen of Russia, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his petition for cancellation of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removal under § 240A(b)(1) of the Immigration and Naturalization Act (“INA”)
and under § 203 of the Nicaraguan Adjustment and Central American Relief Act
(“NACARA”). He also requests review of his eligibility for asylum, withholding
of removal, and CAT protection, which the BIA did not consider. We have
jurisdiction under 8 U.S.C. § 1252, and we deny in part and dismiss in part the
petition. Because the parties are familiar with the history of this case, we need not
recount it here.
1. We lack jurisdiction to review the agency’s discretionary denial of
Ruchyev’s request for cancellation of removal on the basis of exceptional and
unusual hardship on his wife pursuant to INA § 240A(b)(1). Romero-Torres v.
Ashcroft, 327 F.3d 887, 892 (9th Cir. 2003).
2. Substantial evidence supports the BIA’s determination that Ruchyev
did not qualify for cancellation of removal under NACARA. See Barrios v.
Holder, 581 F.3d 849, 854 (9th Cir. 2009) (reciting standard). To be eligible for
relief under NACARA, an individual must have “entered the United States on or
before December 31, 1990.” 8 C.F.R. § 1240.61(a)(3). Effectuating entry into the
United States requires (1) physical presence in the U.S.; (2) inspection and
admission by an immigration officer or actual and intentional evasion of inspection
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at the nearest inspection point; and (3) freedom from official restraint, including
surveillance. Sidhu v. Ashcroft, 368 F.3d 1160, 1163–64 (9th Cir. 2004).
Substantial evidence supports the BIA’s determination that Ruchyev did not
effectuate entry as required for relief under NACARA. The ship upon which he
traveled remained under U.S. Customs and Border Patrol surveillance while
docked, and upon disembarking the vessel, Ruchyev was immediately placed into
the custody of Customs and Border Patrol agents. He remained in their custody
until he filed his petition for asylum. Thus, Ruchyev was never free from official
restraint as required to obtain relief under NACARA. The BIA’s factual
determination is supported by substantial evidence. We affirm the BIA’s decision
denying relief.
3. We lack jurisdiction over Ruchyev’s request for asylum, withholding
of removal, and CAT protection because he did not exhaust his administrative
remedies. 8 U.S.C. § 1252(d)(1). He did not file an application for asylum or
related relief before the agency or request that his original application be renewed.
PETITION DENIED IN PART; DISMISSED IN PART.
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