Pascual v. Holder

Case: 08-60835 Document: 00511101967 Page: 1 Date Filed: 05/05/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 5, 2010
No. 08-60835 Lyle W. Cayce
Summary Calendar Clerk
ESTEBAN FRANCISCO PASCUAL, also known as, Jose Luis Guerrero-
Morales, also known as, Enrique Dias-Garcia,
Petitioner,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A 72-402-019
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
In this immigration case, Petitioner Esteban Francisco Pascual, a native
and citizen of Guatelmala, seeks review of two orders issued by the Board of
Immigration Appeals (BIA). The first, issued on August 18, 2008, dismissed his
appeal of an Immigration Judge’s (IJ) denial of his application for cancellation
of removal and deemed abandoned his application for adjustment of status. The
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 08-60835
second, issued on February 27, 2009, denied his motion to reopen and reconsider
the BIA’s August 18 decision. For the following reasons, we deny the petition for
review.
I.
Pascual entered the United States in October 1991 without admission or
parole. On June 20, 1995, Pascual filed an application for adjustment to Legal
Permanent Resident status pursuant to 8 U.S.C. § 1255(i), based on his marriage
to a United States citizen. Immigration and Naturalization Service (INS) denied
Pascual’s adjustment of status application, finding him ineligible pursuant to
8 U.S.C. §§ 1182(a)(2)(A)(i)(I) & (a)(6)(E)(i) based on his criminal history. The
Department of Homeland Security (DHS), INS’s successor, denied Pascual’s
application for a Waiver of Grounds of Excludability. DHS issued Pascual a
Notice to Appear, charging him with inadmissability pursuant to 8 U.S.C.
§ 1182(a)(6)(A)(i).
Pascual appeared before an IJ on April 24, 2006. His counsel informed the
court that Pascual planned to apply for an adjustment of status based on his
marriage to a United States citizen and that his wife had filed an I-130 visa
application in April 2001. The IJ set a deadline of June 8, 2006 for filing
applications for the relief that Pascual sought. Pascual appeared before the IJ
again for a preliminary hearing on June 8, 2006 and reiterated that he sought
asylum, withholding of removal, cancellation of removal and adjustment of
status. Counsel for DHS informed the IJ that Pascual’s adjustment of status
claim had been denied because he had misrepresented his criminal history.1
1
We note that it is undisputed that Pascual was convicted for violating 18 U.S.C. § 2
and 8 U.S.C. § 1325(a)(2) by helping aliens to elude examination or inspection. Pascual argues
that he is nevertheless eligible for an adjustment of status because he was convicted for
helping illegal aliens to elude inspection at a checkpoint and this conviction does not
necessarily entail that he aided their illegal entry at the border. See 8 U.S.C. § 1182(a)(6)(E)(I)
(“Any alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided
any other alien to enter or to try to enter the United States in violation of law is
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Pascual appeared with counsel on March 5, 2007, for a hearing on the
merits of his applications for relief from removal. Pascual’s attorney submitted
supporting documents for the cancellation-of-removal application and then asked
the IJ if he had ruled on the adjustment-of-status application. The IJ responded
that no documents regarding this claim had ever been submitted to him and
denied Pascual a continuance to do so, finding the application to have been
abandoned because it was not timely submitted. The IJ also denied Pascual’s
application for cancellation of removal.
Pascual appealed the IJ’s decision to the BIA. On August 18, 2008, the
BIA dismissed his appeal, finding that Pascual had failed to present sufficient
evidence that his removal would cause his wife and children the degree of
hardship necessary to obtain a cancellation of removal. The BIA also affirmed
the IJ’s dismissal of Pascual’s application for adjustment of status, finding that
Pascual had waived his right to apply for this form of relief by failing to timely
file his application. The BIA noted that Pascual had failed to show that he had
a reasonable excuse for missing the deadline. See In re Sibrum, 18 I&N Dec. 354
(BIA 1983). The BIA also declined to remand Pascual’s newly-filed application
for adjustment of status for consideration, finding that he had not made a prima
facie case that he was not inadmissable under 8 U.S.C. §§ 1182(a)(6)(C)(ii) or
1182(a)(6)(E).
Pascual filed a motion to reopen and reconsider, which the BIA denied.
The BIA noted that Pascual’s motion failed to state an error of fact or law in the
Board’s decision. The BIA affirmed its previous holding that the IJ acted within
his statutory authority in dismissing Pascual’s application as untimely. The BIA
also affirmed its denial of Pascual’s request to remand his case to the IJ, finding
that he had not established prima facie eligibility for such relief.
inadmissible.”). As discussed below, we need not consider this argument.
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II.
In its August 18, 2008 decision, the BIA affirmed the IJ’s March 5, 2007
decision and added its own reasoning. Therefore, we review the decision of the
IJ and the BIA to determine whether the factual findings are supported by
“substantial evidence in the record.” Theodros v. Gonzales, 490 F.3d 396, 400
(5th Cir. 2007) (internal quotation marks and citation omitted). The agency’s
legal conclusions are reviewed de novo. Bolvito v. Mukasey, 527 F.3d 428, 435
(5th Cir. 2008).
We review the BIA’s denial of Pascual’s motion to reopen and reconsider
“under a highly deferential abuse-of-discretion standard.” Williams-Igwonobe
v. Gonzalez, 437 F.3d 453, 455 (5th Cir. 2006) (citation omitted).
In his opening brief, Pascual fails to address the IJ and BIA’s
determination that his application was abandoned. Pascual only makes a
passing reference to this determination in the facts section of his brief and has
therefore waived this argument. See McIntosh v. Partridge, 540 F.3d 315, 325
n.12 (5th Cir. 2008) (citation omitted). We look to Pascual’s initial brief to
determine whether he has adequately presented issues for appeal. See Cinel v.
Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (citations omitted). As this issue is
dispositive of Pascual’s petition for review, we need not reach the issue of the
BIA’s refusal to remand his new application for adjustment of status to the IJ
for consideration.
For the foregoing reasons, the petition for review is hereby DENIED.
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