David Pizana-Aguirre v. Jeff B. Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 10 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID PIZANA-AGUIRRE, No. 13-74424
Petitioner, Agency No. A072-238-343
v.
MEMORANDUM *
JEFF B. SESSIONS, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 6, 2017**
Pasadena, California
Before: SCHROEDER, DAVIS,*** and MURGUIA, Circuit Judges.
*
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 Andre M. Davis, United States Circuit Judge for the
U.S. Court of Appeals for the Fourth Circuit, sitting by designation.
David Pizana-Aguirre, a native and citizen of Mexico, petitions for review of
the Department of Homeland Security’s (“DHS”) November 26, 2013, order
reinstating his 1995 deportation order. We have jurisdiction pursuant to 8 U.S.C. §
1252. Our review, however, is “limited to confirming the agency’s compliance
with the reinstatement regulations.” Garcia de Rincon v. DHS, 539 F.3d 1133,
1137 (9th Cir. 2008). We deny the petition for review.
1. The DHS did not err in issuing Pizana-Aguirre’s reinstatement order
where the record shows that Pizana-Aguirre is an alien, he is the subject of a prior
deportation order, and he illegally reentered the country without inspection
following the execution of his deportation order. See id. (our jurisdiction is limited
to reviewing the “three discrete inquiries an immigration officer must make in
order to reinstate a removal order: (1) whether the petitioner is an alien; (2)
whether the petitioner was subject to a prior removal order; and (3) whether the
petitioner re-entered illegally” (citation omitted)); 8 U.S.C. § 1231(a)(5) (if the
DHS “finds that an alien has reentered the United States illegally after having been
removed or having departed voluntarily, under an order of removal, the prior order
of removal is reinstated from its original date and is not subject to being reopened
or reviewed”).
2. Pizana-Aguirre principally argues that his earlier deportation proceedings
constituted a gross miscarriage of justice because the immigration judge (“IJ”) did
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not discuss his eligibility for relief at his deportation hearing. See Garcia de
Rincon, 539 F.3d at 1138 (while a petitioner is generally prevented from
collaterally attacking an underlying deportation order on constitutional or legal
grounds, 8 U.S.C. § 1252(a)(2)(D) permits some measure of review if he can
demonstrate a “gross miscarriage of justice” in the underlying proceedings).
During the hearing, Pizana-Aguirre admitted to the IJ that he was convicted of a
controlled substance offense in 1992. The IJ was entitled to rely on Pizana-
Aguirre’s admission. See Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir. 2009)
(where “the government alleges an alien’s arrival date in its Notice to Appear, and
the alien admits the government’s allegation before the IJ, the allegations are
considered judicial admissions rendering the arrival date undisputed” (internal
quotation marks and alterations omitted)); see also Perez-Mejia v. Holder, 663
F.3d 403, 416 (9th Cir. 2011) (a petitioner’s admission of facts establishing
removability, if accepted by the IJ, completely “relieve[s] the government of the
burden of producing evidence”). Because Pizana-Aguirre admitted to a controlled
substance conviction and had not been in the United States for the requisite ten
continuous years following that offense, the IJ reasonably concluded that his
conviction made him ineligible for relief from deportation. See 8 U.S.C. §
1254(a)(2) (repealed 1996). Accordingly, Pizana-Aguirre has not established a
gross miscarriage of justice in the original removal proceedings, and we deny his
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motions to supplement the certified administrative record.
3. Pizana-Aguirre further argues that he is entitled to adjust status
because he filed for permanent residency in reliance on Perez-Gonzalez v.
Ashcroft, 379 F.3d 783 (9th Cir. 2004). However, he could not have relied on
Perez-Gonzalez because he applied for adjustment of status on June 30, 2004, prior
to the Perez-Gonzalez decision on August 13, 2004. See Garfias-Rodriguez v.
Holder, 702 F.3d 504, 522 (9th Cir. 2012) (holding that petitioner could not have
relied on Perez-Gonzalez because he filed his application before that case was
decided). Moreover, Pizana-Aguirre applied for a waiver of inadmissability after
the decision by the Board of Immigration Appeals in In re Torres-Garcia, 23 I. &
N. Dec. 866 (BIA 2006), and therefore was “on notice of Perez-Gonzalez’s
vulnerability.” See Carrillo de Palacios v. Holder, 708 F.3d 1066, 1072 (9th Cir.
2013) (internal quotation marks omitted). Additionally, because Pizana-Aguirre
reentered the United States prior to April 1, 1997, and is inadmissable under 8
U.S.C. § 1182(a)(9)(A)(ii)(II), not 8 U.S.C. § 1182(a)(9)(C)(i)(II), he is not a class
member under the settlement agreement in Duran Gonzalez v. DHS, No. 2:06-cv-
1411 (W.D. Wash.).
PETITION FOR REVIEW DENIED.
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