Carlos Campas-Burgueno v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 3 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS ARMANDO CAMPAS- No. 17-71672
BURGUENO,
AKA CARLOS ARMANDO CAMPAS, Agency No. A205-931-001
Petitioner,
MEMORANDUM*
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted October 20, 2021**
San Francisco, California
Before: BADE and BUMATAY, Circuit Judges, and BERMAN,*** District Judge.
Petitioner Carlos Armando Campas-Burgueno, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing
*
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).
***
The Honorable Richard M. Berman, United States District Judge for
the Southern District of New York, sitting by designation.
1
his appeal from an immigration judge’s (“IJ”) order denying his applications for
cancellation of removal and voluntary departure. Our jurisdiction is governed by 8
U.S.C. § 1252. We dismiss the petition in part and deny it in part.
Where, as here, the BIA “conducts its own review of the evidence and law,
rather than adopting the IJ’s decision, our ‘review is limited to the BIA’s decision.’”
Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012) (quoting Hosseini v.
Gonzales, 471 F.3d 953, 957 (9th Cir. 2006)). “[W]e review de novo the BIA’s
determinations of questions of law and its legal conclusions.” Id.
1. With respect to cancellation of removal, we dismiss the petition for lack
of jurisdiction because Campas-Burgueno failed to exhaust his administrative
remedies. The IJ denied cancellation of removal on the grounds that Campas-
Burgueno abandoned his application by failing to file by the IJ’s deadline. The IJ
held, alternatively, that Campas-Burgueno was statutorily ineligible for cancellation
of removal. In his appeal to the BIA, Campas-Burgueno contested his statutory
eligibility. He failed to challenge the IJ’s (dispositive) determination that he had
abandoned his cancellation of removal application.
Campas-Burgueno has conceded that he “did not challenge the IJ’s finding
that he had abandoned his application for cancellation.” He unconvincingly
contends that this issue was nevertheless exhausted because he “challenged the
overarching issue of his eligibility for [c]ancellation [of removal].” We may review
2
a final order of removal if the petitioner has exhausted all administrative remedies
available. See 8 U.S.C. § 1252(d)(1). “A petitioner cannot satisfy the exhaustion
requirement by making a general challenge to the IJ’s decision, but, rather, must
specify which issues form the basis of the appeal.” Zara v. Ashcroft, 383 F.3d 927,
930 (9th Cir. 2004). Simply stated, “[f]ailure to raise an issue in an appeal to the
BIA constitutes a failure to exhaust remedies with respect to that question and
deprives this court of jurisdiction to hear the matter.” Vargas v. INS, 831 F.2d 906,
907–08 (9th Cir. 1987).
2. With respect to voluntary departure, we deny the petition because the
BIA did not err in concluding that Campas-Burgueno failed to meet his evidentiary
burden to show that he was not convicted of a crime involving moral turpitude,
where he was convicted under a divisible statute containing “at least one” crime that
qualifies as a crime involving moral turpitude and the record is “inconclusive” and
“unclear” as to which subsection of the statute applies. Campas-Burgueno’s
inconclusive record of conviction is insufficient for him to show by a preponderance
of the evidence that he was not convicted of a crime involving moral turpitude. See
Pereida v. Wilkinson, 141 S. Ct. 754, 763 & n.4 (2021) (“[W]here, as here, the alien
bears the burden of proof and was convicted under a divisible statute containing
some crimes that qualify as crimes of moral turpitude, the alien must prove that his
actual, historical offense of conviction isn’t among them.”); Marinelarena v.
3
Garland, 6 F.4th 975, 978 (9th Cir. 2021) (“Petitioner’s argument rests on
ambiguity, and ambiguity is insufficient. ‘Just as evidentiary gaps work against the
government in criminal cases, they work against’ Petitioner in an immigration case
like this one.” (alteration omitted) (quoting Pereida, 141 S. Ct. at 766)). Under
Pereida and Marinelarena, Campas-Burgueno failed to prove his eligibility for
voluntary departure.
In his reply brief dated March 23, 2021, Campas-Burgueno’s reference to
Pereida was limited to the following: “[O]n March 4, 2021, the U.S. Supreme Court
issued a decision holding that a nonpermanent resident seeking cancellation of
removal fails to carry his burden of showing that he has not been convicted of a
disqualifying offense where the record of conviction is ambiguous as to whether a
disqualifying offense formed the basis of his conviction. . . . Despite this, Mr.
Campas remains eligible for relief because . . . [he] has not been convicted of a
[crime involving moral turpitude].”1 In his supplemental brief Campas-Burgueno
raises for the first time the issue of remand for the purpose of “submit[ting] evidence
and testimony” to show “that he committed his offense with a reckless mens rea.”
But he made no such request in his opening or reply brief and has therefore waived
this issue. See Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1110 n.1 (9th Cir. 2000) (en
1
Pereida was decided nineteen days before Campas-Burgueno’s reply brief
was due.
4
banc) (“[S]ince [respondent] failed to raise the issue . . . in its opening and reply
brief, this issue was waived despite the filing of supplemental briefs.” (emphasis
added)), vacated on other grounds sub nom. U.S. Airways, Inc. v. Barnett, 535 U.S.
391 (2002). And, even at this late date, Campas-Burgueno still does not identify any
particular evidence he could or would present on remand. Cf. Pereida, 141 S. Ct. at
766. Remand, including to allow Campas-Burgueno to submit additional evidence
and testimony, is unwarranted here. Cf. Marinelarena, 6 F.4th at 978–79.
3. Campas-Burgueno requested in his appeal to the BIA—but not here—
“that his case be remanded so that he can file for Adjustment of Status.” Because
he presented no argument or issue regarding the BIA’s determination that he was
ineligible for adjustment of status, he has waived review by this Court of the BIA’s
determination. See Tampubolon v. Holder, 610 F.3d 1056, 1059 n.3 (9th Cir. 2010)
(“[P]etitioners failed to raise any issues or advance any arguments in favor of
relief . . . . Accordingly, petitioners waived review of their . . . claim.”).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
5