Juan Llamas-Lopez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 15, 2020
• Docket: 17-70292
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 15 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN MANUEL LLAMAS-LOPEZ, No. 17-70292

Petitioner, Agency No. A024-101-784

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

Respondent.

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

Submitted October 8, 2020** Pasadena, California

Before: M. SMITH and LEE, Circuit Judges, and CARDONE,*** District Judge.

Petitioner asks this court to reverse a Board of Immigration Appeals (“BIA”)

final removal order and remand for further proceedings. The parties are familiar

with the facts, so we do not recite them here. We have jurisdiction under 8 U.S.C.

* 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 Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. § 1252.

1. Petitioner first argues that the Immigration and Naturalization Act (“INA”)

violates the Fifth Amendment’s Equal Protection Clause to the extent that the statute

sets out different grounds for deportation and inadmissibility determinations. To

prevail, Petitioner must establish that deportable and inadmissible individuals are

similarly situated. Lopez v. Sessions, 901 F.3d 1071, 1078 (9th Cir. 2018) (citing

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). In addition, Petitioner

must show that the challenged statutory classification is irrational and must negate

every conceivable basis that might support the relevant distinction. See Aguilera-

Montero v. Mukasey, 548 F.3d 1248, 1252 (9th Cir. 2008) (citing de Martinez v.

Ashcroft, 374 F.3d 759, 764 (9th Cir. 2004)).

Aliens in deportation proceedings are located within the territorial jurisdiction

of the United States. See Alvarez-Garcia v. Ashcroft, 378 F.3d 1094, 1097 (9th Cir.

2004) (citing Zadvydas v. Davis, 533 U.S. 678, 693 (2001)). In contrast, although

non-citizens who apply for admission may be physically allowed into the country,

in the eyes of the law, they are detained at the border and have not yet “entered” the

United States. See id. (citing Barrera-Echavarria v. Rison, 44 F.3d 1441, 1450 (9th

Cir. 1995) (en banc)). Because deportable aliens and non-citizens seeking admission

are not similarly situated, the immigration laws may treat them differently without

violating the Constitution. Id. (citing Servin-Espinoza v. Ashcroft, 309 F.3d 1193,

2 1198 (9th Cir. 2002)). As such, Petitioner’s Equal Protection Clause argument fails.

In addition, this court has articulated a rational basis for immigration laws that

treat aliens in deportation proceedings differently from non-citizens who apply for

entry. See Abebe v. Mukasey, 554 F.3d 1203, 1206 (9th Cir. 2009) (en banc) (per

curiam). Congress could have restricted eligibility for immigration relief to aliens

who seek admission from abroad to incent deportable non-citizens to leave the

country. See id. And “[b]y encouraging such self-deportation, the government could

save resources it would otherwise devote to arresting and deporting these aliens.”

Id. As a result, Petitioner’s Equal Protection Clause challenge to his final removal

order is meritless. See id.

2. Petitioner also calls this court’s attention to a 1991 plea deal that maintained

his eligibility to apply for relief under the former INA § 212(c) during immigration

proceedings implicating that conviction. Petitioner seemingly contends that this

agreement preserved his right to freely depart from, and return to, the United States,

thus precluding entry of a final removal order in his immigration case. But the

Immigration Judge (“IJ”) allowed Petitioner to request INA § 212(c) relief.

Therefore, the terms of Petitioner’s plea deal were complied with. And the fact a

plea deal preserves an individual’s right to seek INA § 212(c) relief does not require

immigration judges to grant such applications. For these reasons, Petitioner’s 1991

plea deal cannot justify reversal of the BIA.

3 3. Lastly, Petitioner insists that the IJ and BIA wrongly ignored the multi-factor

test set out in Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978), in denying him

discretionary immigration relief. Accordingly, Petitioner asks this court to reverse

that decision on the merits. Here, this court must decide if Petitioner raises a

colorable legal challenge to that refusal to grant discretionary relief. See 8 U.S.C.

§§ 1252(a)(2)(B)–(D). Legal challenges to denial of discretionary immigration

relief are colorable only if they possess “some possible validity.” Mendez-Castro v.

Mukasey, 552 F.3d 975, 978 (9th Cir. 2009) (quoting Martinez-Rosas v. Gonzales,

424 F.3d 926, 930 (9th Cir. 2005)). Otherwise, this court does not have jurisdiction

to review the merits of such decisions. See id.

The IJ cited Matter of Marin’s test in addressing Petitioner’s entitlement to

discretionary relief. In an eight-page analysis, the IJ examined whether the Matter

of Marin factors favored Petitioner and concluded that they did not. Further, the

BIA referred to the Matter of Marin test in upholding the IJ’s rejection of Petitioner’s

application for discretionary relief. Because Petitioner’s legal attack on the denial

of his request for discretionary relief lacks “some possible validity,” this court does

not have jurisdiction to review the merits of that decision. See Mendez-Castro, 552

F.3d at 978.

For the foregoing reasons, the BIA is AFFIRMED.