Demyan Aguiar v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 15, 2023
• Docket: 19-70888
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 15 2023 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

DEMYAN AGUIAR, AKA Aguiar Demyan, No. 19-70888 AKA Demyan Unknown, Agency No. A073-173-921 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 15, 2022** Pasadena, California

Before: BENNETT and COLLINS, Circuit Judges, and FOOTE,*** District Judge.

Petitioner Demyan Aguiar, a Brazilian citizen, petitions for review of the

order of the Board of Immigration Appeals (“BIA”) denying his request for

remand to pursue adjustment of status and upholding the decision of the

Immigration Judge (“IJ”) that found him ineligible for cancellation of removal and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). *** The Honorable Elizabeth E. Foote, United States District Judge for the Western District of Louisiana, sitting by designation. that ordered him removed to Brazil. We have jurisdiction under § 242 of the

Immigration and Nationality Act, 8 U.S.C. § 1252, and we deny in part and dismiss

in part the petition.

1. During his removal proceedings, Aguiar took the first step towards

attempting to adjust his status to that of a lawful permanent resident by having his

U.S. citizen wife file an I-130 petition with U.S. Citizenship and Immigration

Services (“USCIS”). After granting Aguiar several continuances while awaiting

USCIS’s decision on the I-130 petition, the IJ ultimately declined to wait any

further, proceeded with a removal hearing in January 2018, and ordered Aguiar to

be removed. The IJ did so after concluding that, even if the I-130 petition was

granted, Aguiar had made an insufficient showing that he would merit a favorable

exercise of discretion so as to be granted adjustment of status. After Aguiar

appealed to the BIA, the I-130 petition was granted, and Aguiar then moved to

remand the matter to the IJ. However, the BIA concluded that Aguiar had “not

demonstrated eligibility for adjustment of status in the exercise of discretion,” and

it therefore both denied the motion for remand and upheld the IJ’s denial of a

continuance of the removal proceedings.

The standards governing a motion to remand “are for all practical purposes

the same” as for a motion to reopen, see Rodriguez v. INS, 841 F.2d 865, 867 (9th

Cir. 1987), and the BIA may properly deny such a motion if, inter alia, “the

2 movant would not be entitled to the discretionary grant of relief which he sought.”

Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (citation omitted). Even

assuming Aguiar would be eligible for discretionary adjustment of status, 8 U.S.C.

§ 1255(a),1 we find no basis to set aside the BIA’s determination that Aguiar failed

to show that he merited a favorable exercise of discretion. The BIA applied the

correct legal standard in exercising that discretion, and it considered the relevant

factors. Specifically, the BIA concluded that Aguiar’s criminal history, coupled

with his failure to take advantage of rehabilitative opportunities, ultimately

weighed against a favorable exercise of discretion. Aguiar contends that the BIA

failed adequately to consider the positive factors supporting adjustment of status,

but we disagree. The BIA expressly considered Aguiar’s claims of remorse, his

explanations of his criminal history, and the documents submitted with his

appellate brief and motion to remand, which detailed the positive factors on which

Aguiar relied. The BIA’s explanation was sufficient. See Agonafer v. Sessions,

859 F.3d 1198, 1206 (9th Cir. 2017) (noting that the agency is not required to

“write an exegesis on every contention” (citation omitted)).

For similar reasons, the BIA properly upheld the IJ’s denial of a continuance

to await a decision on the I-130 application. An IJ may properly deny a

1 We therefore do not address the parties’ dispute over whether the BIA and the IJ correctly concluded, in the alternative, that Aguiar had accrued unlawful presence in the U.S. that would render him ineligible for adjustment of status.

3 continuance to await a decision on an application if the IJ determines that, even if

the application is granted and the alien is therefore eligible for discretionary relief,

the relevant factors do not support a favorable exercise of that discretion. Matter

of Hashmi, 24 I. & N. Dec. 785, 790, 793 (BIA 2009). As the BIA recognized, the

IJ noted many of the same negative factors that had been identified by the BIA.

The IJ also considered relevant positive discretionary factors, including Aguiar’s

marriage to a U.S. citizen, the fact that Aguiar attended school in the U.S., and the

time Aguiar spent in this country. The BIA properly upheld the IJ’s denial of a

continuance on this basis.

2. The agency properly concluded that Aguilar was not eligible for

cancellation of removal. To be eligible for that relief, an alien must be “physically

present in the United States for a continuous period of not less than 10 years

immediately preceding the date of such application.” 8 U.S.C. § 1229b(b)(1)(A).

Because Aguiar applied for cancellation of removal on January 12, 2018, he had to

show his continuous presence in the U.S. since January 2008. But Aguiar

informed the IJ that he had left the U.S. for Brazil “before 2010” and did not return

to the U.S. until “May 2010.” Because he was outside the U.S. for a “period in

excess of 90 days” within the relevant 10-year timeframe, the agency properly

concluded that he was ineligible for cancellation of removal. See 8 U.S.C.

§ 1229b(d)(2).

4 3. We lack jurisdiction to consider Aguiar’s claims that the IJ violated his

due process rights by failing adequately to develop the record and to advise him of

the relevant procedural and substantive requirements for various forms of relief,

because Aguiar did not raise them before the BIA. Had these claims been raised,

the BIA would not have been “powerless to grant the relief requested,” Carr v.

Saul, 141 S. Ct. 1352, 1361 (2021), and therefore Aguiar was required to present

those claims to the BIA before raising them here. See 8 U.S.C. § 1252(d)(1)

(stating that we may review a challenge to a final order of removal only if “the

alien has exhausted all administrative remedies available to the alien as of right”).

Even construing liberally his pro se papers before the BIA, see Agyeman v. INS,

296 F.3d 871, 878 (9th Cir. 2002), Aguiar failed to raise these due process claims

before the BIA. We therefore lack jurisdiction to consider them. See Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

The petition for review is DENIED IN PART AND DISMISSED IN PART.