Doddoli Villasenor v. Holder

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 18 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ALBERTO DODDOLI VILLASENOR, No. 07-70634
Petitioner, Agency No. A095-657-364
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 3, 2011
Pasadena, California
Before: GOODWIN and WARDLAW, Circuit Judges, and COGAN, District
Judge.**
Alberto Doddoli Villasenor, a Mexican national whose TN-2 visa expired on
September 6, 2003, petitions for review of an order of removal and voluntary
departure. He claims that the Attorney General violated his due process rights by
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Brian M. Cogan, District Judge for the U.S. District
Court for Eastern New York, Brooklyn, sitting by designation.
prosecuting a removal case against him while his appeal from an adverse decision
on a petition for a change of visa status was pending before the Administrative
Appeals Office (AAO).
As Villasenor’s counsel acknowledged at oral argument, Villasenor
conceded removability before an immigration judge (IJ) notwithstanding the
pendency of the administrative appeal. Any attempt to dispute removability is
therefore foreclosed. See Young Sun Shin v. Mukasy, 547 F.3d 1019, 1024 (9th Cir.
2008); 8 C.F.R. § 1240.10(c), (d).
The AAO ultimately dismissed Villasenor’s visa status appeal and the Board
of Immigration Appeals took express account of the AAO’s decision when
affirming the IJ’s order of removal. Accordingly, Villasenor has not made the
showing of prejudice required for a due process claim. See Padilla v. Ashcroft,
334 F.3d 921, 924-25 (9th Cir. 2003).1
PETITION DENIED.
1
We note that the government’s brief states that petitioner has one day of
voluntary departure remaining, and “so could depart at any time during the
pendency of this petition without becoming subject to the Immigration and
Nationality Act’s reentry bars.” At oral argument, more than three years after
filing its brief, the government appeared to retreat from this representation by
suggesting that, due to a change in internal policy, the petitioner might be subject
to a distinct bar based on unlawful presence. While we do not reach the question
here, the government has not cited nor provided us any legal support for its new
views, and at least as to this petitioner, would be bound by its representation in this
briefing.