Michelle Llacuna v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
FEB 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELLE AGUSTIN LLACUNA, AKA No. 12-72973
Michelle Llacuna Anunciacion, AKA Jane
Doe, AKA Concetta Vasquez, Agency No. A043-893-350
Petitioner,
ORDER*
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 12, 2016
San Francisco, California
Before: SILVERMAN and TALLMAN, Circuit Judges, and LASNIK,** District
Judge.
Michelle Agustin Llacuna, aka Concetta Vasquez, a native and citizen of the
Philippines, petitions for review of the Board of Immigration Appeals’ (BIA)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert S. Lasnik, Senior United States District Judge
for the Western District of Washington, sitting by designation.
dismissal of an Immigration Judge’s (IJ) decision denying her applications for
adjustment of status under INA § 245 and for a waiver of inadmissibility under
INA § 237(a)(1)(H). We dismiss Vasquez’s petition for review.
1. Pursuant to INA § 242(a)(2)(B)(ii), we lack jurisdiction to review the
BIA’s discretionary denial of Vasquez’s fraud waiver application. 8 U.S.C. §
1252(a)(2)(B)(ii). Vasquez fails to present a colorable constitutional claim or legal
question to preserve judicial review of the agency’s discretionary waiver
determination under INA § 237(a)(1)(H), which is an “act of grace” rendered
pursuant to the Attorney General’s “unfettered discretion.” I.N.S. v. Yang, 519
U.S. 26, 30 (1996) (internal citation omitted); see San Pedro v. Ashcroft, 395 F.3d
1156, 1157 (9th Cir. 2005) (ultimate authority whether to grant fraud waiver
application rests “entirely in the discretion of the Attorney General”); see also
REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005), codified as 8
U.S.C. § 1252(a)(2)(D) (preserving judicial review over constitutional and legal
claims).
Instead, Vasquez takes issue with how the agency weighed the relevant
evidence, a matter over which we lack jurisdiction. See Martinez-Rosas v.
Gonzales, 424 F.3d 926, 930 (9th Cir. 2005) (court has no jurisdiction to hear an
argument that the IJ abused its discretion); Torres-Aguilar v. I.N.S., 246 F.3d 1267,
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1271 (9th Cir. 2001) (“To determine whether we have jurisdiction over claims
labeled as due process violations, we must look beyond the label.”). For instance,
Vasquez’s arguments that “the IJ understated the economic hardship [her] family
would experience upon moving to the Philippines” and that the agency allowed her
initial fraudulent entry to “outweigh every favorable factor” are improper attempts
to “create the jurisdiction that Congress chose to remove simply by cloaking an
abuse of discretion argument in [legal] garb.” Torres-Aguilar, 246 F.3d at 1271.
Accordingly, we dismiss for lack of jurisdiction Vasquez’s challenge to the
agency’s discretionary denial of her fraud waiver application.
2. Vasquez argues for the first time on appeal that her former counsel was
ineffective for failing to contest her removability under INA § 237(a)(2)(A)(ii) and
for failing to get prior permission for Vasquez’s children to testify before the IJ.
We dismiss Vasquez’s IAC claim on the grounds that she failed to exhaust her
available administrative remedies. See Puga v. Chertoff, 488 F.3d 812, 815 (9th
Cir. 2007) (“Administrative exhaustion can be either statutorily required or
judicially imposed as a matter of prudence.”). Vasquez’s failure to file a motion to
reopen before the BIA, to complain of attorney conduct that occurred entirely
during her removal proceedings, deprives us of a complete record to pass on this
claim. See id.; see also Hamoui v. Ashcroft, 389 F.3d 821, 826 (9th Cir. 2004)
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(permitting equitable tolling to excuse petitioner’s untimely motion to reopen).
Vasquez may not circumvent the requirements of Matter of Lozada, 19 I. & N.
Dec. 637 (BIA 1988), by raising her IAC claim for the first time on appeal without
first exhausting her administrative remedies. Even if we were to reach the merits
of Vasquez’s IAC claim, she would not be able to demonstrate prejudice as she is
still clearly removable on two separate grounds. See Mohammed v. Gonzales, 400
F.3d 785, 793 (9th Cir. 2005) (to prevail on an IAC claim, petitioner must
demonstrate that counsel failed to perform with “sufficient competence” and that
“she was prejudiced by counsel’s performance”). In sum, we dismiss Vasquez’s
IAC claim on the grounds that she failed to exhaust the administrative remedies
that were available to her.
PETITION FOR REVIEW DISMISSED.
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