Rudy Montenegro v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
APR 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUDY ALBERTO MONTENEGRO, No. 13-71354
Petitioner, Agency No. A070-109-885
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 14, 2016**
San Francisco, California
Before: O’SCANNLAIN, CLIFTON, and N.R. SMITH, Circuit Judges.
1. The immigration judge (“IJ”) did not err in pretermitting Rudy Alberto
Montenegro’s Nicaraguan Adjustment and Central American Relief Act
(“NACARA”) application. Montenegro failed to establish that, under NACARA
§ 203, he was eligible for special rule of cancellation of removal. He could not
*
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).
establish that he was a person of good moral character during the seven-year period
immediately preceding the decision by the Board of Immigration Appeals (“BIA”).
See 8 U.S.C. § 1101(f)(7); NACARA, Pub. L. No. 105–100, sec. 203(b),
§ 309(f)(1)(A)(iii), (B)(iv), 111 Stat. 2160, 2198–99 (1997); 8 C.F.R.
§ 1240.66(b)(3); see also Castillo-Cruz v. Holder, 581 F.3d 1154, 1162 (9th Cir.
2009) (noting that the period for demonstrating good moral character “is calculated
backwards from the date on which the . . . application is finally resolved by the IJ
or the BIA”).
For the first time on appeal, Montenegro argues that the IJ’s pretermitting
his NACARA application was in error, because either the IJ or the BIA should
have instead administratively closed the removal proceedings.1 This issue was not
raised before either the IJ or the BIA; thus, it is not exhausted. Therefore, we lack
jurisdiction to address it. See Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013)
(per curiam).
2. The IJ did not abuse his discretion in concluding there was not good cause to
continue the master hearing to allow Montenegro to file an application for asylum.
1
Besides not asking for administrative closing, the record does not indicate
that Montenegro moved to reopen his application for asylum before the United
States Citizenship and Immigration Services (“USCIS”). See Am. Baptist
Churches v. Thornburgh, 760 F. Supp. 796, 803, 805 (N.D. Cal. 1991); 8 C.F.R.
§ 1240.68(a).
2
“When reviewing an IJ’s denial of a continuance, we consider several factors,
including: (1) the nature of the evidence not obtained or admitted as a result of the
denial of the continuance, (2) the reasonableness of the alien’s conduct, (3) the
inconvenience to the court, and (4) the number of continuances previously
granted.” Garcia v. Lynch, 798 F.3d 876, 881 (9th Cir. 2015) (citation omitted);
accord An Na Peng v. Holder, 673 F.3d 1248, 1253 (9th Cir. 2012). First,
Montenegro had more than two years to file an application with the IJ and failed to
do so. See Vargas-Hernandez v. Gonzales, 497 F.3d 919, 923 (9th Cir. 2007).
Second, after denying the continuance, the IJ instructed Montenegro to file an
application with his appeal to the BIA, which he failed to do.2 Third, as noted by
the BIA, he has not articulated why he would qualify for asylum. Fourth, the IJ
had already granted a motion to reopen removal proceedings and held multiple
hearings in which asylum was not pursued. After consideration of the relevant
factors, we conclude that Montenegro has not shown that the IJ’s denial of the
continuance was “clear abuse.” See Garcia, 798 F.3d at 881.
3. Montenegro challenges the constitutionality of 8 U.S.C. § 1101(f)(7). In
Romero-Ochoa v. Holder, 712 F.3d 1328, 1330-32 (9th Cir. 2013), we already
2
Montenegro was also instructed by the USCIS to file an application for
asylum in its denial letter.
3
concluded that § 1101(f)(7) was constitutional in the context of cancellation of
removal and voluntary departure under 8 U.S.C. §§ 1229b(b)(1), 1229c(b)(1).
Section 1101(f)(7) is equally applicable to a request for special rule for
cancellation of removal under the NACARA § 203. See NACARA, sec. 203(b),
§ 309(f)(1) (noting that special rule for cancellation of removal is subject to 8
U.S.C. § 1101).
4. The BIA did not err in denying Montenegro’s request for voluntary
departure. See 8 U.S.C. § 1229c(b)(1)(B); Romero-Ochoa, 712 F.3d at 1330-32.
PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN
PART.
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