Vargas-Hernandez v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN CARLOS VARGAS-HERNANDEZ, 
Petitioner, No. 04-73343
v.
 Agency No.
A92-434-343
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 4, 2007—Pasadena, California
Filed August 3, 2007
Before: Cynthia Holcomb Hall and Consuelo M. Callahan,
Circuit Judges, and James L. Robart,* District Judge.
Opinion by Judge Callahan
*The Honorable James L. Robart, United States District Judge for the
Western District of Washington, sitting by designation.
9321
VARGAS-HERNANDEZ v. GONZALES 9325
COUNSEL
Louis A. Gordon (argued), Gordon Law Offices, Los Angeles,
California, and Vera Weisz, Law Office of Vera A. Weisz,
Los Angeles, California, for the petitioner.
Jennifer Paisner (argued), Assistant Attorney General Peter D.
Keisler, Senior Litigation Counsel Julia Doig Wilcox, and
Melissa Neiman-Kelting, Office of Immigration Litigation,
Washington, D.C., for the respondent.
OPINION
CALLAHAN, Circuit Judge:
Petitioner Juan Carlos Vargas-Hernandez (“Vargas”) peti-
tions for review from the Board of Immigration Appeals’
(“BIA”) dismissal of his appeal from the immigration judge’s
(“IJ”) order of removal. The BIA rejected Vargas’ attempt to
remand his case so that he could apply for adjustment of sta-
tus, and concluded that Vargas failed to make a heightened
showing to justify discretionary relief under former Immigra-
tion and Nationality Act (“INA”) § 212(c), formerly codified
at 8 U.S.C. § 1182(c). The BIA also found that the record did
not show that the IJ was biased against him to the extent that
she denied him due process. We dismiss the petition concern-
ing the treatment of Vargas’ juvenile conviction, and deny the
petition regarding Vargas’ due process claims.
FACTUAL BACKGROUND
Vargas is a native and citizen of Mexico who became a
lawful permanent resident on September 3, 1989. In 1990,
Vargas was prosecuted as an adult for murder and attempted
murder. On February 4, 1991, he pleaded guilty to one count
of voluntary manslaughter and was sentenced to one year in
9326 VARGAS-HERNANDEZ v. GONZALES
jail on a suspended sentence of eleven (11) years. At the time,
Vargas was approximately sixteen (16) years old. Vargas was
also convicted of misdemeanor vandalism in 1996.
PROCEDURAL HISTORY
The Immigration and Naturalization Service (“INS”) began
removal proceedings against Vargas in 2002, alleging that he
had been convicted of voluntary manslaughter, an aggravated
felony. On July 30, 2002, the IJ sustained the charge of
removability against Vargas, and Vargas requested § 212(c)
relief.1 At the beginning of the final hearing on February 12,
2003, Vargas filed a motion to continue to request an opportu-
nity to file for an adjustment of status as the husband of a
United States citizen.2 The IJ denied § 212(c) relief on Febru-
ary 12, 2003, and ordered Vargas deported.
Vargas’ wife Sandra filed a petition for alien relative (I-
130) on March 9, 2003. Vargas filed his appeal from the IJ’s
removal order on August 4, 2003, after receiving an extension
of time. Vargas attached an undated application to register for
permanent residence or adjust status to his February 9, 2004
motion to remand the removal proceedings for adjustment of
status. The BIA denied the motion to remand and dismissed
Vargas’ appeal, concluding that the IJ appropriately denied
discretionary relief under § 212(c), that Vargas had not shown
good cause for any further continuances, and that Vargas
failed to demonstrate bias by the IJ.
1
Congress repealed INA § 212(c) as part of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). The
Supreme Court ruled in INS v. St. Cyr, 533 U.S. 289, 326 (2001), how-
ever, that aliens who pleaded guilty to crimes prior to the repeal of
§ 212(c) could still apply for relief
2
Vargas’ wife, Sandra Gradilla Salazar, naturalized on April 1, 1998.
Vargas married Ms. Salazar on July 4, 1996.
VARGAS-HERNANDEZ v. GONZALES 9327
STANDARD OF REVIEW
We have jurisdiction over petitions for review that raise
colorable constitutional claims or questions of law. 8 U.S.C.
§ 1252(a)(2)(D). This court lacks jurisdiction to review cer-
tain orders of removal against criminal aliens. 8 U.S.C.
§ 1252(a)(2)(C). Questions of law, including due process
claims, are reviewed de novo. Fernandez-Ruiz v. Gonzales,
410 F.3d 585, 587 (9th Cir. 2005); Colmenar v. I.N.S., 210
F.3d 967, 971 (9th Cir. 2000). Our review is limited to the
BIA’s decision and the grounds for the final order of removal
affirmed by the BIA. Kelava v. Gonzales, 434 F.3d 1120,
1123 (9th Cir. 2004).
DISCUSSION
I.
Vargas argues that because he was sixteen (16) years old
when he committed the offense that led to his 1991 voluntary
manslaughter conviction, his conviction qualified for treat-
ment under the Federal Juvenile Delinquency Act (“FJDA”),
and should not be used as a conviction in the removal proceed-
ings.3 Although the BIA did not address this argument when
it affirmed the IJ’s decision and denial of § 212(c) relief, the
DHS argues before this court that because Vargas was prose-
cuted by California as an adult, his conviction cannot qualify
for treatment as a juvenile adjudication.
[1] The term “conviction” for the purposes of the INA is
defined as follows:
3
The BIA has consistently held that “juvenile delinquency proceedings
are not criminal proceedings, that acts of juvenile delinquency are not
crimes, and that findings of juvenile delinquency are not convictions for
immigration purposes.” In re Devison-Charles, 22 I. & N. Dec. 1362,
1365 (BIA 2000). “[T]he standards established by Congress, as embodied
in the FJDA, govern whether an offense is to be considered an act of
delinquency or a crime.” Id.
9328 VARGAS-HERNANDEZ v. GONZALES
(48)(A) The term “conviction” means, with respect
to an alien, a formal judgment of guilt of the alien
entered by a court or, if adjudication of guilt has
been withheld, where—
(i) a judge or jury has found the alien guilty or the
alien has entered a plea of guilty or nolo contendere
or has admitted sufficient facts to warrant a finding
of guilt, and
(ii) the judge has ordered some form of punishment,
penalty, or restraint on the alien’s liberty to be
imposed.
INA § 101(a)(48)(A) codified at 8 U.S.C. § 1101(a)(48)(A).
Congress specifically added this definition to the INA in 1996
to clarify that all that is necessary for a conviction is an
admission or finding of guilt and a punishment imposed. See
Uritsky v. Gonzales, 399 F.3d 728, 732-33 (6th Cir. 2005)
(discussing legislative history of § 1101(a)(48)).
[2] In Morasch v. INS, 363 F.2d 30, 31 (9th Cir. 1966), this
court noted that the statute permitting deportation upon con-
viction of two crimes of moral turpitude did not allow for dif-
ferentiation by age at the time of offense. Although Oregon
could have treated the alien as a juvenile offender, it chose to
treat him as an adult. Id. This court refused to reclassify the
alien’s adult conviction as a juvenile adjudication, concluding
that “the Service was entitled to take the record as it found it,
and neither it nor we are required to import separate juvenile
proceedings which were not used by the Oregon court.” Id.
[3] In Vieira-Garcia v. INS, 239 F.3d 409, 412-14 (1st Cir.
2001), the First Circuit interpreted INA § 101(a)(48)(A) and
rejected a petitioner’s argument that, although he was tried as
an adult by Rhode Island, the FJDA should apply. The First
Circuit noted that § 101(a)(48)(A) is clear and unambiguous,
and the fact that the petitioner pleaded guilty and a judge
VARGAS-HERNANDEZ v. GONZALES 9329
ordered him imprisoned meant that the petitioner had a “con-
viction” under the statute. Id. at 413. In rejecting the petition-
er’s argument, the First Circuit concluded that “[n]either we
nor the BIA have jurisdiction to determine how a state court
should adjudicate its defendants. Once adjudicated by the
state court, as either a juvenile or an adult, we are bound by
that determination.” Id. The First Circuit also rejected an
equal protection challenge to the BIA’s reliance on the state’s
choice of how to handle the minor alien’s criminal case, con-
cluding that reliance on the state’s prosecutorial choice had a
rational basis. Id. at 414-15.
[4] Applying Morasch and Vieira-Garcia to this case, Var-
gas’ 1991 conviction for voluntary manslaughter constitutes
a conviction under INA § 101(a)(48)(A).4 Vargas pleaded
guilty, and a judge sentenced him to eleven (11) years in
prison, suspended, and 365 days’ imprisonment. There is no
evidence he was ever adjudged a juvenile delinquent. In addi-
tion, the state court’s decision to try Vargas as an adult had
a rational basis and did not violate the equal protection clause.
See City of Dallas v. Stanglin, 490 U.S. 19, 25-28 (1989)
(concluding age classification is analyzed under rational
basis); Toomey v. Clark, 876 F.2d 1433, 1439-40 (9th Cir.
1989) (applying rational basis test to juvenile court’s decision
to decline jurisdiction). Therefore, the voluntary manslaughter
conviction was properly used to find Vargas removable under
INA § 237(a)(2)(A)(iii) for having been convicted of an
aggravated felony. Accordingly, because we conclude that
Vargas’ adult conviction was an aggravated felony convic-
tion, we dismiss Vargas’ petition on these claims for lack of
jurisdiction under 8 U.S.C. § 1252(a)(2)(C).
4
To the extent that Vargas argues that his voluntary manslaughter con-
viction fits under the juvenile exception to crimes involving moral turpi-
tude under INA § 212(a)(2)(A)(ii), that section does not apply because the
IJ did not find him excludable on those grounds. The IJ specifically sus-
tained the charge that Vargas was convicted of an aggravated felony, mak-
ing him removable under INA § 237(a)(2)(A)(iii).
9330 VARGAS-HERNANDEZ v. GONZALES
II.
A.
[5] Vargas argues that the IJ should have granted him a
continuance so he could apply for an adjustment of status.
The denial of a motion for continuance is reviewed for an
abuse of discretion. Nakamoto v. Ashcroft, 363 F.3d 874, 883
n.6 (9th Cir. 2004). Discretionary decisions, including
whether or not to grant § 212(c) relief, are not reviewable. 8
U.S.C. § 1252(a)(2)(B)(ii). Abuse of discretion challenges to
discretionary decisions, even if recast as due process claims,
do not constitute colorable constitutional claims. See Torres-
Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001).
[6] The IJ did not abuse her discretion in this case.
Although Vargas married his wife in 1996, and his wife natu-
ralized in 1998, Vargas waited until the fifth hearing in Febru-
ary 2003 to attempt to adjust his status. The IJ specifically
noted that Vargas could have filed an I-130 petition well
before the final hearing and that the first hearing was in July
2002. Without any explanation for the delay in filing his
motion for a continuance, we cannot conclude that the IJ
abused her discretion in denying the last minute continuance.
B.
[7] Vargas also challenges the BIA’s denial of his motion
to remand, which we review for an abuse of discretion. Malhi
v. INS, 336 F.3d 989, 993 (9th Cir. 2003). “The BIA or the
IJ decides whether an applicant is entitled to a favorable exer-
cise of agency discretion on a case by case basis by ‘taking
into account the social and humane considerations presented
in the applicant’s favor and balancing them against the
adverse factors that evidence the applicant’s undesirability as
a permanent resident.’ ” Rashtabadi v. INS, 23 F.3d 1562,
1570 (9th Cir. 1994) (quoting Yepes-Prado v. INS, 10 F.3d
1363, 1365-66 (9th Cir. 1993)). “Where an alien has commit-
VARGAS-HERNANDEZ v. GONZALES 9331
ted a particularly grave criminal offense, he may be required
to make a heightened showing that his case presents unusual
or outstanding equities.” Id.
[8] In Vargas’ case, the BIA noted that even if he was eligi-
ble for an adjustment of status, it would not grant a remand
because he failed to demonstrate that he was worthy of a
favorable exercise of discretion. In analyzing whether to grant
relief under INA § 212(c) the IJ specifically considered Var-
gas’ time in the United States, his family ties to the United
States, and his mother’s health, but concluded that these equi-
ties were outweighed by the seriousness of Vargas’ voluntary
manslaughter conviction and his other arrests and vandalism
conviction.5 Thus, the record shows that the IJ and the BIA
properly considered all relevant factors and articulated their
reasons for weighing the equities and denying relief. See
Kalubi v. Ashcroft, 364 F.3d 1134, 1139 (9th Cir. 2004) (not-
ing that “[t]here is no definitive list of factors that the BIA
must consider or may not consider” and stating that the rea-
sons for the exercise of discretion depends on the evidence);
Shooshtary v. INS, 39 F.3d 1049, 1051 (9th Cir. 1994) (stating
that “[a]lthough we require the Board to state its reasons and
properly consider all factors, the preciseness we require of the
Board depends upon the preciseness of the proof offered by
the petitioner.”). Vargas has not met his burden of demon-
strating that, even if he was eligible for adjustment of status,
he was entitled to a discretionary grant of relief.6 See INS v.
5
The equities in an INA § 212(c) analysis is similar to that for adjust-
ment of status, and the two procedures may be combined. See In re Azurin,
23 I. & N. Dec. 695, 697-98 (BIA 2005) (“[W]e had approved the practice
of combining a section 212(c) waiver with an adjustment application
before the language regarding 212(c) was inserted into former 8 C.F.R.
§ 245.1(e).”); In re Mendez-Moralez, 21 I. & N. Dec. 296, 299-300 (BIA
1996) (noting exercise of discretion is a case by case balancing for all
forms of discretionary relief).
6
Vargas’ eligibility for adjustment of status is doubtful because the IJ
found that he did not show extreme hardship to justify a waiver under 8
U.S.C. § 1182(h)(1)(B) (INA § 212(h)(1)(B)). See Shooshtary, 39 F.3d at
1051 (discussing need to show hardship to justify a waiver under
§ 1182(h)(1)(B) if inadmissible after a criminal conviction but married to
a lawful permanent resident).
9332 VARGAS-HERNANDEZ v. GONZALES
Abudu, 485 U.S. 94, 105 (1988) (concluding that the BIA may
simply determine that the alien would not be entitled to the
discretionary grant of relief). We conclude that the BIA did
not abuse its discretion in denying Vargas’ motion for a
remand to apply for adjustment of status.
C.
[9] In addition, Vargas has not shown prejudice from the
denial of his motion to remand. Even if Vargas were eligible
for an adjustment of status, the IJ would have denied him dis-
cretionary adjustment of status. The IJ and the BIA were enti-
tled to consider Vargas’ criminal conviction in connection
with an application for discretionary relief or adjustment of
status. Paredes-Urrestarazu, 36 F.3d 801, 808-10 (9th Cir.
1994) (concluding that a criminal conviction may be consid-
ered when exercising discretion under section 212(c) even if
the conviction was expunged under state law); Delgado-
Chavez v. INS, 765 F.2d 868, 869 (9th Cir. 1985)
(“[C]onvictions may not render an alien statutorily ineligible
for voluntary departure. Rather, a conviction may be consid-
ered as an adverse factor in deciding whether the favorable
exercise of discretion is warranted.”). Because “[d]etermining
whether section 212(c) relief should be awarded involves the
same type of balancing of equities the Board must undertake
in the discretionary determinations considered in the adjust-
ment of status and voluntary departure contexts,” Vargas can-
not show that the IJ would have come to a different result on
his application for an adjustment of status. Paredes-
Urrestarazu, 36 F.3d at 810. Therefore, the BIA’s denial of
a remand to consider his application for adjustment of status
was not an abuse of discretion.
III.
Finally, Vargas argues that the IJ should have granted his
motion for recusal after the IJ exchanged words with Vargas’
attorney and offered to recuse herself. On appeal, the BIA
VARGAS-HERNANDEZ v. GONZALES 9333
reviewed the record de novo and concluded that there was no
evidence that the IJ prejudged Vargas’ case or that the IJ’s
denial of the recusal motion rendered the proceedings unfair.
A.
[10] The BIA has concluded that “motions for recusal are
governed by . . . the constitutional due process requirement
that the hearing be before a fair and impartial arbiter.” Matter
of Exame, 18 I. & N. Dec. 303, 306 (BIA 1982). The BIA
summarized the constitutional fairness inquiry as follows:
[A]n applicant is not denied a fair hearing merely
because the immigration judge has a point of view
about a question of law or policy . . . . As a general
rule, in order to warrant a finding that an immigra-
tion judge is disqualified from hearing a case it must
be demonstrated that the immigration judge had a
personal, rather than judicial, bias stemming from an
“extrajudicial” source which resulted in an opinion
on the merits on some basis other than what the
immigration judge learned from his participation in
the case. An exception to the general rule that bias
must stem from an “extrajudicial” source may arise
where “such pervasive bias and prejudice is shown
by otherwise judicial conduct as would constitute
bias against a party.” Davis v. Bd. of School
Comm’rs, 517 F.2d 1044 (5th Cir. 1975).
Id. The Supreme Court adopted a similar standard for decid-
ing whether to recuse judges, stating “opinions formed by the
judge on the basis of facts introduced or events occurring in
the course of the current proceedings, or of prior proceedings,
do not constitute a basis for a bias or partiality motion unless
they display a deep-seated favoritism or antagonism that
would make fair judgment impossible.” Liteky v. United
States, 510 U.S. 540, 555 (1994).
9334 VARGAS-HERNANDEZ v. GONZALES
In this case, Vargas’ allegations of bias stem from a single
exchange between the IJ and Vargas’ counsel. The exchange
at issue went as follows:
Q: Do you have any other items of evidence?
A: Yes, Your Honor.
Q: Okay. Do you have the recent DOJ?
A: No, Your Honor.
Q: Ms. Weisz, isn’t it is [sic] his burden?
A: Your Honor, it is his burden. I think the last
time that we had a hearing was not that long
ago, and very frankly, I’ve had two months of
Hell. My daughter’s been very ill. She’s been
hospitalized also.
Q: Ms. Weisz, you don’t need to tell me about sick
children.
A: I’m sorry, Your Honor.
Q: I could write volumes on it.
A: I know that you could. That’s why I thought
you would have some empathy there.
Q: I’m not asking you —
A: I’m just telling you, Judge. Okay. Because you
have such an attitude about this case, which is
just unbelievable.
Q: You know what? If you have a problem, ask me
to recuse myself. I’d be more than glad to.
VARGAS-HERNANDEZ v. GONZALES 9335
A: Please recuse yourself, Your Honor.
Q: I will.
The IJ then went off the record, and upon returning, the IJ
asked Vargas’ counsel to make a formal recusal motion. Var-
gas’ counsel stated the following grounds for recusal:
A: Your Honor, I don’t know, since the beginning
of this case that we’ve appeared before you,
you’ve displayed an angry attitude towards the
respondent, and —
Q: Can you be more specific —
A: As if you had prejudged.
Q: So that we can itemize those encounters.
A: I’d have to listen to the tape again, Your Honor,
in order to do that. And I would note for the
record that, this morning, Your Honor, I was
late for which I apologize. I would also note
that upon arrival here the line outside the build-
ing was clear across to the alley. So it was a
long time to get into the elevator and come up.
And, I mean, if I’m correct, Your Honor, you
just stated that you would grant the motion,
now you’re coming back and saying that you
need to consider it on the record.
Vargas’ counsel then argued that the IJ’s voice tones indi-
cated that the IJ had prejudged the case, and that the IJ had
stated frequently on the record that the IJ did not believe that
Vargas was eligible for § 212(c) relief. The IJ clarified that
she was merely asking whether there was a legal bar to
§ 212(c) relief or not, and denied Vargas’ recusal motion.
9336 VARGAS-HERNANDEZ v. GONZALES
[11] Contrary to Vargas’ counsel’s allegations, the IJ never
ruled that Vargas was ineligible for a § 212(c) waiver. A
review of the October 17, 2002 hearing reveals that the IJ
only asked whether Vargas’ voluntary manslaughter convic-
tion was a murder in order to determine his eligibility for
§ 212(c) relief. Vargas has not met his burden of showing that
the IJ had a deep-seated favoritism or antagonism that would
make fair judgment impossible. See Ni v. BIA, 439 F.3d 177,
181 (2d Cir. 2006) (citing Litekey, 510 U.S. at 555, and noting
“substantial burden” on alien to show bias from the proceed-
ings). Our review of the record reveals no support for Vargas’
allegation that the IJ prejudged his application for § 212(c)
relief. In addition, Vargas’ allegations of bias are undermined
by the IJ’s professional behavior during a full day of testi-
mony after the recusal motion, and while taking additional
evidence on February 12, 2003. Furthermore, the IJ’s decision
considered all the issues raised by Vargas and does not reflect
any bias or animosity toward him.
B.
[12] An alien is entitled to a “full and fair hearing” that
meets the requirements of due process. Campos-Sanchez v.
INS, 164 F.3d 448, 450 (9th Cir. 1999). In order to prevail on
a due process claim that he was denied a full and fair hearing,
an alien must also show prejudice — that his rights were vio-
lated “in a manner so as potentially to affect the outcome of
the proceedings.” Id. (quoting United States v. Cerda-Pena,
799 F.2d 1374, 1379 (9th Cir. 1986)). We have held that if the
factual record adequately supports the denial of an alien’s
application for relief, we cannot find that the alleged bias held
by the IJ was the basis for the denial of the application. Has-
san v. INS, 927 F.2d 465, 469 (9th Cir. 1991). Where an alien
is given a full and fair opportunity to be represented by coun-
sel, to prepare an application for § 212(c) relief, and to pres-
ent testimony and other evidence in support of the application,
he or she has been provided with due process. See Burgos-
Abril v. INS, 58 F.3d 475, 476-77 (9th Cir. 1995) (concluding
VARGAS-HERNANDEZ v. GONZALES 9337
that no due process violation occurred when alien “was given
a full and fair opportunity (1) to be represented by counsel at
the deportation proceedings, (2) to prepare her application for
§ 212(c) relief, and (3) to present testimony and other evi-
dence in support of her application.”).
[13] This is not a case where the IJ prevented a full exami-
nation of the applicant, Colmenar v. INS, 210 F.3d 967, 972
(9th Cir. 2000), stood in moral judgment of the alien, see
Reyes-Melendez v. INS, 342 F.3d 1001, 1007-09 (9th Cir.
2003), or pressured a pro se alien to drop a claim for relief
that he was entitled to pursue, see Cano-Merida v. INS, 311
F.3d 960, 964-65 (9th Cir. 2002). The IJ’s single exchange of
words with Vargas’ attorney concerned the attorney’s con-
duct, not Vargas or the merits of his case. The record reveals
that Vargas was given a full and fair opportunity to present
his case for a § 212(c) waiver, and he does not claim there is
additional evidence that the IJ refused to consider. See
Burgos-Abril, 58 F.3d at 476-77. We conclude that Vargas
received due process and that the exchange between his coun-
sel and the IJ did not prevent him from presenting evidence
or arguments relevant to his case.
CONCLUSION
Vargas’ prosecution and conviction in California as an
adult precluded the IJ and the BIA from treating his convic-
tion as a juvenile adjudication. As a result, his 1991 voluntary
manslaughter conviction made him removable as an aggra-
vated felon for having committed a crime of violence, and this
court does not have jurisdiction to review the order of
removal.
In addition, because discretionary grants of adjustment of
status and § 212(c) relief involve the same equitable balanc-
ing, and because we uphold the denial of § 212(c) relief, Var-
gas cannot show prejudice from the denial of a continuance
to pursue his adjustment of status application. Finally,
9338 VARGAS-HERNANDEZ v. GONZALES
although the IJ and Vargas’ counsel exchanged words and the
IJ denied a request for recusal, our review of the record shows
that the IJ did not exclude evidence, preclude testimony, or
otherwise prevent Vargas from fully presenting his request for
a § 212(c) waiver, and her decision was not based on an
improper bias against Vargas or his attorney.
DISMISSED as to the treatment of Vargas’ juvenile con-
viction and DENIED on the due process and bias claims.