Juan Duran Facundo v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN ANTONIO DURAN FACUNDO, No. 18-71661
AKA Jose Duran, AKA Juan Facundo, 19-71647
Petitioner, Agency No. A092-799-257
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 7, 2021**
Pasadena, California
Before: WARDLAW, GOULD, and OWENS, Circuit Judges.
In No. 18-71661 of this consolidated appeal, Juan Duran-Facundo
(“Petitioner”) petitions for review of a Board of Immigration Appeals’ (“BIA”)
dismissal of an Immigration Judge’s (“IJ”) denial of a continuance and denial 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).
Petitioner’s claims for asylum, withholding, and deferral of removal under the
Convention Against Torture (“CAT”). In No. 19-71647, Petitioner challenges the
BIA’s denial of his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252.
We grant the petition in No. 19-71647 in part as to the BIA’s denial of Petitioner’s
motion to reopen based on his pending U visa application, and remand for further
proceedings. We deny the petition in No. 18-71661 as to all other claims.
1. We review the BIA’s denial of a continuance for abuse of discretion.
Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013). Petitioner contends that the
BIA erred by denying the continuance for two independent reasons. Neither
contention is persuasive. First, Petitioner contends that the BIA erred in finding a
lack of “good cause” for a continuance based on Petitioner’s prima facie eligibility
for a U visa. See 8 C.F.R. § 1003.29. In determining whether good cause exists to
continue removal proceedings to await the adjudication of a pending U-visa
petition, an IJ should consider “DHS’s response to the motion” for a continuance,
“whether the underlying visa petition is prima facie approvable,” and “the reason
for the continuance and other procedural factors.” Matter of Sanchez Sosa, 25 I. &
N. Dec. 807, 812–13 (B.I.A. 2012). The BIA rationally considered these factors
and relied on the fact that Petitioner did not submit evidence of an approved law
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enforcement certification, demonstrating prima facie U-visa eligibility.1
Second, Petitioner contends that the BIA erred by finding Petitioner was
never “admitted” to the United States for purposes of seeking adjustment based on
either his prior grant of lawful temporary status or his having been “waved in” at
the border. The Attorney General may accord lawful permanent resident status to
a noncitizen “who was inspected and admitted or paroled into the United States.”
8 U.S.C. § 1255(a). Petitioner has not shown he was “inspected and admitted” for
immigration purposes because when his former lawful status was terminated, that
termination operated to revoke any prior admission. See United States v.
Hernandez-Arias, 757 F.3d 874, 881 (9th Cir. 2014). Petitioner also did not meet
his burden to show that he was “waved in” at the border. See Matter of Quilantan,
25 I. & N. Dec. 285, 290–93 (B.I.A. 2010). Although a noncitizen is deemed
admitted if he presents himself at the border and makes no false claim of United
States citizenship, and after inspection is permitted to enter the United States, it is
the noncitizen’s burden to show that the entry occurred in the manner he described.
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To the extent Petitioner claims that denying the continuance was a due
process violation because the IJ was unable to review “all documentary evidence
relevant to the I-589,” we disagree. “A court will grant a petition on due process
grounds only if the proceeding was ‘so fundamentally unfair that the [noncitizen]
was prevented from reasonably presenting his case.’” Gutierrez v. Holder, 662
F.3d 1083, 1091 (9th Cir. 2011) (citation omitted). Petitioner presented witnesses
and the IJ had access to all the documentary evidence on the day of the hearing,
during which the IJ participated in examining witnesses.
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See Matter of Areguillin, 17 I. & N. Dec. 308, 309–10 (B.I.A. 1980).
2. Petitioner next contends that the BIA erred by finding him ineligible for
asylum, withholding of removal, and CAT protection. We disagree. The BIA did
not err in determining that Petitioner’s asylum application was untimely. Though
an untimely asylum application may be excused if the applicant establishes either
changed circumstances or extraordinary circumstances relating to the delay in
filing, the application must then be filed within a reasonable period given those
circumstances. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4)-(5). Here, even
crediting that a qualifying event occurred in February 2016, Petitioner has not
shown that he filed his April 28, 2017 asylum application within a reasonable time.
We review the BIA’s denial of withholding of removal and CAT protection
for substantial evidence. Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir.
2021). First, the BIA’s affirmance of the IJ’s denial of withholding on nexus
grounds is supported by substantial evidence because the record indicates that the
family members were “victims of general crimes, perhaps engendered by being
perceived as wealthy for having been in the United States.” See Gormley v.
Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004). The evidence does not compel the
conclusion that Petitioner “has been, or is likely to be, specifically targeted for
persecution by any individual or group.” Lolong v. Gonzales, 484 F.3d 1173, 1181
(9th Cir. 2007) (en banc). Second, substantial evidence supports the BIA’s
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determination on likelihood of future torture under CAT.
3. Finally, Petitioner contends that the BIA made two errors in denying his
motion to reopen. We review the BIA’s denial of a motion to reopen for abuse of
discretion. Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016). A decision is an
abuse of discretion if it is “arbitrary, irrational, or contrary to law.” Id. (citation
omitted). First, Petitioner contends that under Pereira v. Sessions, 138 S. Ct. 2105(2018), the Notice to Appear (“NTA”) that omitted the date, time, and location of
proceedings did not vest jurisdiction with the immigration court. We disagree.
Petitioner’s initial NTA omitted required information about the hearing, but
Petitioner was then sent a notice of hearing that included the previously omitted
information. We have held that this “two-step” procedure for initially defective
NTAs—as it pertains to jurisdiction—is permissible. Aguilar Fermin v. Barr, 958
F.3d 887, 893–95 (9th Cir. 2020).
Second, Petitioner contends that the BIA did not “provide a reasoned
explanation” for its decision that Petitioner had not shown good cause for a motion
to reopen to continue removal proceedings to await adjudication of a pending U-
visa petition. See Tadevosyan v. Holder, 743 F.3d 1250, 1252–53 (9th Cir. 2014)
(citation omitted). On this point we agree, grant the petition, and remand for the
BIA to reconsider this ground for denying the motion to reopen.
The BIA concluded that Petitioner had not shown “good cause” for the
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continuance because he did not establish that his petition for a U visa, “a pending
application for a collateral matter not within the [IJ’s] jurisdiction, would
materially affect the outcome of the removal proceedings.” Though the BIA can
properly deny a motion to reopen based on a pending U visa by relying on
“secondary factors”—related to a petitioner’s diligence and administrative
efficiency, see Matter of Sanchez Sosa, 25 I. & N. Dec. at 814–15—the BIA relied
solely on the fact that Petitioner had not shown the pending U visa “would
materially affect the outcome of the removal proceedings.” See Andia v. Ashcroft,
359 F.3d 1181, 1184 (9th Cir. 2004). That ground for the BIA’s decision is
contrary to published BIA precedent. See Matter of L-N-Y-, 27 I. & N. Dec. 755,
757 (B.I.A. 2020) (“There is no dispute that the respondent is prima facie eligible
for a U visa and that a grant of his visa petition by the USCIS would materially
affect the outcome of his removal proceedings.”). Because the “BIA’s decision
cannot be sustained upon its reasoning, we must remand to allow the agency to
decide any issues remaining in the case.” Andia, 359 F.3d at 1184; see also INS v.
Ventura, 537 U.S. 12, 16–17 (2002). On remand, the BIA should address whether,
balancing the primary and secondary factors as articulated in, among other cases,
Matter of Sanchez Sosa and Matter of L-N-Y-, Petitioner’s case should be reopened
to continue removal proceedings to await a decision from the United States
Citizenship and Immigration Services on his pending U visa petition.
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Petition in No. 18-71661 DENIED. Petition in No. 19-71647 GRANTED
IN PART; DENIED IN PART; REMANDED. The government’s motion for
summary disposition is DENIED as moot. The parties shall bear their own
costs.
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