Labitoria v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 21, 2023
• Docket: 21-340
• Status: Unpublished

Opinion

Case: 21-340, 02/21/2023, DktEntry: 46.1, Page 1 of 4

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Eduardo Soliban Labitoria, Jr., No. 21-340

Petitioner, Agency No. A058-661-115

v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,

Respondent.

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

Submitted February 16, 2023** San Francisco, California

Before: S.R. THOMAS, MILLER, SANCHEZ, Circuit Judges

Eduardo Soliban Labitoria, Jr. (“Labitoria”), a native and citizen of the

Philippines, petitions for a review of a decision by the Board of Immigration

Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) finding that Labitoria

was ineligible for readjustment of status. We have jurisdiction under

8 U.S.C. § 1252, and we deny the petition.

* 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). Case: 21-340, 02/21/2023, DktEntry: 46.1, Page 2 of 4

“We review de novo claims of equal protection and due process

violations in removal proceedings.” Cruz Rendon v. Holder, 603 F.3d 1104,

1109 (9th Cir. 2010). “The BIA’s decision will be reversed on due process

grounds if (1) the proceeding was so fundamentally unfair that the alien was

prevented from reasonably presenting his case, and (2) the alien demonstrates

prejudice, which means that the outcome of the proceeding may have been

affected by the alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614,

620-21 (9th Cir. 2006) (internal quotation marks and citations omitted). “An

alien bears the burden of proving the alleged violation prejudiced his or her

interests.” Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011).

1. The agency did not violate Labitoria’s due process rights by

informing Labitoria that he was ineligible to apply for a waiver of

inadmissibility in conjunction with an application for readjustment of status.1

Even if the government erroneously advised the IJ that Labitoria entered the

United States as a lawful permanent resident (“LPR”), Labitoria cannot

demonstrate prejudice from this alleged error. The IJ found Labitoria ineligible

for a waiver of inadmissibility due to a prior controlled substance offense, not

his LPR status. Labitoria does not contest the agency’s finding of ineligibility

1 Although Labitoria did not raise this issue before the BIA, we may consider it because the failure to “inform the alien of his or her apparent eligibility” for certain discretionary relief excuses the alien from the exhaustion requirement. United States v. Vidal-Mendoza, 705 F.3d 1012, 1016 (9th Cir. 2013) (quoting 8 C.F.R. § 1240.11(a)(2)).

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based on his prior controlled substance offense and has waived this issue. See

Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004).

2. This Court has jurisdiction to consider a claim to be a United States

national pursuant to 8 U.S.C. § 1252(b)(5). If “the record presents no genuine

issue of material fact about the petitioner’s nationality, a reviewing court must

decide the nationality claim.” Chau v. I.N.S., 247 F.3d 1026, 1029 (9th Cir.

2001) (citing 8 U.S.C. § 1252(b)(5)(A)). If, however, “the record presents a

genuine issue of material fact as to the petitioner's nationality, the reviewing

court must transfer the proceeding to a district court for a de novo

determination.” Id. (citing 8 U.S.C. § 1252(b)(5)(B)). “Traditional summary

judgment rules guide our decision concerning transfer.” Ayala-Villanueva v.

Holder, 572 F.3d 736, 738 (9th Cir. 2009). Because Labitoria acknowledges

that he was born in the Philippines, the burden is on him to establish United

States citizenship. See Scales v. I.N.S., 232 F.3d 1159, 1163 (9th Cir. 2000).

Labitoria has not created a genuine dispute of material fact about his

citizenship. Labitoria focuses on the fact that the agency failed to conclusively

resolve the question of whether Labitoria’s grandfather transmitted citizenship

to Labitoria’s father at birth, who then transmitted citizenship to Labitoria at

birth. Labitoria testified he was unsure whether his grandfather was a United

States citizen. The IJ asked Labitoria and the government to try to obtain

information regarding the citizenship status of Labitoria’s grandfather. Neither

party ever produced documents on this topic, and the IJ never revisited the

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issue.

In the context of a citizenship claim, this Court may consider evidence

outside the administrative record. See Batista v. Ashcroft, 270 F.3d 8, 14 (1st

Cir. 2001); Brown v. Holder, 763 F.3d 1141, 1145 n.2 (9th Cir. 2014). Here,

the government provided this Court with agency records which Labitoria argues

should have been submitted before the agency. Docket Entry No. 36.2 These

records do not create a genuine issue of material fact regarding Labitoria’s

citizenship status. If anything, the records indicate that Labitoria’s grandfather

was not a citizen at the time of Labitoria’s father’s birth. See Docket Entry No.

36. Assuming, without deciding, that the government’s failure to produce these

records before the IJ constituted a due process error, Labitoria has not

demonstrated that the error prejudiced him.

The motion for a stay of removal, Docket Entry No. 2, is denied. The

temporary stay of removal is lifted.

PETITION DENIED.

2 We grant the government’s unopposed motion for judicial notice of these documents. Docket Entry No. 36.

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