Jesus Payan v. Jefferson Sessions

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 01 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JESUS PAYAN, No. 12-71337
Petitioner, Agency No. A087-024-811
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 May 18, 2017
San Francisco, California
Before: THOMAS, Chief Judge, WARDLAW, Circuit Judge, and
BENCIVENGO,** District Judge.
Jesus Payan petitions for review of a final order of removal issued by the
Board of Immigration Appeals (“BIA”), affirming the Immigration Judge’s (“IJ”)
decision denying Payan’s application for adjustment of status with a waiver of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Cathy Ann Bencivengo, United States District Judge
for the Southern District of California, sitting by designation.
inadmissibility. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We deny the
petition.
1. The BIA correctly concluded that Payan is not eligible for the benefits
of the Child Status Protection Act (“CSPA”), Pub. L. No. 107-208, 116 Stat. 927(2002). To protect his status as a “child” under the CSPA, Payan must have
“sought to acquire the status of an alien lawfully admitted for permanent residence
within one year of” the date on which an immigrant visa number became available
to him. 8 U.S.C. § 1153(h)(1)(A). Payan failed to demonstrate or even to allege
that evidence exists that he did so. A family-second-preference-A (“F2A”) visa
became available to Payan on April 1, 2005. Payan did not apply to adjust status to
lawful permanent residence until September 23, 2007, more than two years later.
Because he did not “s[eek] to acquire” lawful permanent resident status “within
one year of” the date on which an immigrant visa number became available to him,
Payan is excluded from the CSPA’s protections. Id.
2. On appeal, Payan contends that intervening BIA authority allows him
to avail himself of the CSPA despite an untimely adjustment application. See In re
O. Vazquez, 25 I. & N. Dec. 817, 823 (BIA 2012) (holding that a noncitizen may
meet the one-year “sought to acquire” requirement “by establishing, through
persuasive evidence, that an application he or she submitted to the appropriate
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agency was rejected for a procedural or technical reason or that there were other
extraordinary circumstances, particularly those where the failure to timely file was
due to circumstances beyond the alien’s control.”). But Payan cites to no evidence
that supports his attorney’s assertion that “[i]t is possible Petitioner ‘sought to
acquire’ his lawful permanent residence through actions taken prior to September
2007.” Payan “forwards this claim solely through the argument of [his] counsel,
which does not constitute evidence.” Carrillo-Gonzalez v. INS, 353 F.3d 1077,
1079 (9th Cir. 2003). Where “there is no basis [either] in the present record” or
outside of it to corroborate Payan’s claim, “[c]ounsel’s unsupported assertions in
[petitioner’s] brief do not establish” that Payan could satisfy the CSPA’s one-year
filing requirement. INS v. Phinpathya, 464 U.S. 183, 188 n.6 (1984).
Accordingly, we decline to remand to the agency for consideration under
O. Vazquez.
3. The BIA did not err in concluding that Payan had failed to exhaust
and therefore waived any challenge to the classification of his conviction for
solicitation to commit sale or transportation of marijuana as a crime involving
moral turpitude (“CIMT”). See 8 U.S.C. §§ 1182(a)(2), 1229b(b)(1)(C).
Because neither Payan’s Notice of Appeal nor brief to the BIA raised the
CIMT issue, Payan failed to exhaust it. Payan alleged only that the IJ “erred in
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ordering me removed from the United States” and “erred in applying the law to my
case.” Such “broad statements . . . that the IJ committed an error in law [were not]
sufficient to put the BIA on notice of his claim.” Segura v. Holder, 605 F.3d 1063,
1066 (9th Cir. 2010). Although “we do not employ the exhaustion doctrine in a
formalistic manner,” Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008), 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, 929 (9th Cir. 2004); see also Arsdi
v. Holder, 659 F.3d 925, 929 (9th Cir. 2011) (where petitioner “made only a
general allegation that the IJ erred in denying him relief,” he failed to preserve his
claims for appeal).
Payan nevertheless urges us to reach the merits of his CIMT claim because
the “Government [is] not prejudiced by his failure to” exhaust the issue before the
BIA. However, Payan confuses the law governing an exception to waiver for law
governing an exception to exhaustion. Allowing an exception to waiver is a
discretionary decision. Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir. 2004).
Exhaustion of claims before the agency is a jurisdictional requirement. Alvarado v.
Holder, 759 F.3d 1121, 1127 n.5 (9th Cir. 2014) (noting a circuit split on this
question).
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4. The BIA and IJ properly concluded that Payan cannot adjust status
because a visa number is not currently available to him. Because Payan cannot
avail himself of the CSPA, his visa preference category automatically converted to
the family-second-preference-B (“F2B”) category upon his twenty-first birthday
(November 4, 2004), and again automatically converted to the family-first-
preference (“F1”) category upon his father’s naturalization (August 13, 2007).
Throughout, Payan retained his original priority date. 8 U.S.C. § 1153(h)(3). The
Department of State’s Visa Bulletin reveals that an F1 visa is not yet available for
Payan’s priority date of January 5, 1998. Therefore, the BIA correctly concluded
that Payan’s application to adjust status was properly denied “because a visa
number was not immediately available in his preference category.” See 8 U.S.C.
§ 1255(i)(2).
PETITION DENIED.
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