Hector Gutierrez-Moreno v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
MAR 22 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HECTOR SALVADOR GUTIERREZ- No. 13-72293
MORENO,
Agency No. A075-494-448
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 9, 2017
Pasadena, California
Before: REINHARDT and NGUYEN, Circuit Judges, and MARBLEY,** District
Judge.
Hector Salvador Gutierrez-Moreno ("Gutierrez"), a native and citizen of
Honduras, petitions for review of two orders of the Board of Immigration Appeals:
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
(1) a December 29, 2010 order dismissing his appeal from the Immigration Judge's
("IJ") denial of his applications for adjustment of status and cancellation of
removal; and (2) a May 29, 2013 order affirming the IJ's denial of Gutierrez's
request for a continuance. We have jurisdiction under 8 U.S.C. § 1252, and review
legal questions, including determinations of our jurisdiction, de novo. Andersen v.
United States, 298 F.3d 804, 807 n.2 (9th Cir. 2002) (citing Didrickson v. U.S.
Dep't of Interior, 982 F.2d 1332, 1337 (9th Cir. 1992)). We review an IJ's denial
of a continuance for an abuse of discretion. Nakamoto v. Ashcroft, 363 F.3d 874,
883 n.6 (9th Cir. 2004) (citing Baires v. I.N.S., 856 F.2d 89, 91 (9th Cir. 1988)).
For the reasons that follow, we deny Gutierrez's petition for review.
We lack jurisdiction to review the Board of Immigration Appeals' ("BIA")
December 2010 decision. Our jurisdiction to review a deportation decision is
limited to a "final order of removal." 8 U.S.C. § 1252(a)(1), (b)(9); see also Singh
v. Lynch, 835 F.3d 880, 882 (9th Cir. 2016) (per curiam). A petition for judicial
review "must be filed not later than 30 days after the date of the final order of
removal." 8 U.S.C. § 1252(b)(1). This thirty-day filing deadline is "mandatory
and jurisdictional." Magtanong v. Gonzales, 494 F.3d 1190, 1191 (9th Cir. 2007)
(per curiam) (citing Stone v. I.N.S., 514 U.S. 386, 405 (1995)). "A mandatory and
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jurisdictional rule cannot be forfeited or waived, and courts lack the authority to
create equitable exceptions to such a rule." Id. (internal citation omitted).
It is well settled in this Circuit that a BIA order denying an alien relief from
removal but remanding the case to an IJ for voluntary departure proceedings is a
final order of removal from which a timely petition for judicial review must be
filed. See Singh, 835 F.3d at 883; Rizo v. Lynch, 810 F.3d 688, 690 (9th Cir.
2016); Pinto v. Holder, 648 F.3d 976, 977-78 (9th Cir. 2011); Castrejon-Garcia v.
I.N.S., 60 F.3d 1359, 1361 (9th Cir. 1995). It is undisputed that, in its December
2010 order, the BIA remanded Gutierrez's case solely for voluntary departure
proceedings, and that Gutierrez did not file a petition for review within thirty days
of that order. We are therefore barred from reviewing the BIA's December 2010
order-which Gutierrez's counsel correctly conceded at oral argument.
Gutierrez's attorney also correctly admitted that the IJ's denial of a
continuance, the only remaining issue before the Court, was not prejudicial. An
alien applying for adjustment of status must have "an immigrant visa . . .
immediately available to him at the time his application is filed." 8 U.S.C. §
1255(a). Only aliens present in the United States who have been inspected and
admitted or paroled into the country are eligible for adjustment of status. See id. §
1255(a)-(c). Otherwise, aliens must process their applications for permanent
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residence abroad, through their home country's United States consulate. See id. §
1154(a)-(b). As an exception to this rule, an alien who is the beneficiary of an
immigrant visa petition that was filed on or before April 30, 2001 and was
approvable when filed, is a "grandfathered alien" and can apply for adjustment of
status. See id. § 1255(i); 8 C.F.R. §§ 245.1(b), 245.10(a)(1). In lieu of leaving the
United States, grandfathered aliens can pay a fee for the convenience of remaining
in the country and applying for adjustment of status. See 8 U.S.C. § 1255(i); 8
C.F.R. §§ 245.1(b), 245.10(a)(1).
In August 2011, approximately five years after learning that his immigrant
visa petition with a 1993 priority date had been cancelled, Gutierrez attempted to
have the 1993 visa petition reinstated, or obtain approval of a newly-filed
immigrant visa petition with the original 1993 priority date. At his final hearing
before the IJ, Gutierrez confirmed that his original immigrant visa petition would
not be reinstated, and requested a continuance to see if his efforts to retain the 1993
priority date for his newly-filed visa petition would be successful. The IJ denied
the request. In its May 2013 order affirming the IJ's decision, the BIA noted that
the visa petition filed by Gutierrez in August 2011 had been approved while his
administrative appeal was pending, but Gutierrez had not informed the BIA
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whether he had successfully retained the 1993 priority date. Nor did he do so in
his briefing to this Court.
Thus, the Government asserted in its briefing the likelihood that: (1)
Gutierrez's efforts to retain the 1993 priority date were unsuccessful; (2) his visa
priority date is August 29, 2011, meaning that Gutierrez is not a grandfathered
alien; and (3) he therefore did not have a visa immediately available to him,
making him statutorily ineligible for adjustment of status. Gutierrez's counsel
acknowledged at oral argument that the Government's assertions were indeed
correct. He also explicitly acknowledged that, because Gutierrez was ultimately
unable to retain a 1993 priority date, the IJ's denial of a continuance was not
prejudicial. Therefore, the petition for review is denied.
Petition DISMISSED in part for lack of jurisdiction; DENIED in part.
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