Ilya Ruchyev v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 12, 2019
• Docket: 16-70874
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 12 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ILYA FEDOROVECH RUCHYEV, No. 16-70874

Petitioner, Agency No. A029-126-231

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 10, 2019** Honolulu, Hawaii

Before: THOMAS, Chief Judge, and CALLAHAN and CHRISTEN, Circuit Judges.

Ilya Ruchyev, a native and citizen of Russia, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his petition for cancellation of

* 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). removal under § 240A(b)(1) of the Immigration and Naturalization Act (“INA”)

and under § 203 of the Nicaraguan Adjustment and Central American Relief Act

(“NACARA”). He also requests review of his eligibility for asylum, withholding

of removal, and CAT protection, which the BIA did not consider. We have

jurisdiction under 8 U.S.C. § 1252, and we deny in part and dismiss in part the

petition. Because the parties are familiar with the history of this case, we need not

recount it here.

1. We lack jurisdiction to review the agency’s discretionary denial of

Ruchyev’s request for cancellation of removal on the basis of exceptional and

unusual hardship on his wife pursuant to INA § 240A(b)(1). Romero-Torres v.

Ashcroft, 327 F.3d 887, 892 (9th Cir. 2003).

2. Substantial evidence supports the BIA’s determination that Ruchyev

did not qualify for cancellation of removal under NACARA. See Barrios v.

Holder, 581 F.3d 849, 854 (9th Cir. 2009) (reciting standard). To be eligible for

relief under NACARA, an individual must have “entered the United States on or

before December 31, 1990.” 8 C.F.R. § 1240.61(a)(3). Effectuating entry into the

United States requires (1) physical presence in the U.S.; (2) inspection and

admission by an immigration officer or actual and intentional evasion of inspection

2 at the nearest inspection point; and (3) freedom from official restraint, including

surveillance. Sidhu v. Ashcroft, 368 F.3d 1160, 1163–64 (9th Cir. 2004).

Substantial evidence supports the BIA’s determination that Ruchyev did not

effectuate entry as required for relief under NACARA. The ship upon which he

traveled remained under U.S. Customs and Border Patrol surveillance while

docked, and upon disembarking the vessel, Ruchyev was immediately placed into

the custody of Customs and Border Patrol agents. He remained in their custody

until he filed his petition for asylum. Thus, Ruchyev was never free from official

restraint as required to obtain relief under NACARA. The BIA’s factual

determination is supported by substantial evidence. We affirm the BIA’s decision

denying relief.

3. We lack jurisdiction over Ruchyev’s request for asylum, withholding

of removal, and CAT protection because he did not exhaust his administrative

remedies. 8 U.S.C. § 1252(d)(1). He did not file an application for asylum or

related relief before the agency or request that his original application be renewed.

PETITION DENIED IN PART; DISMISSED IN PART.