Luzviminda Erwin v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 2019
• Docket: 14-72325
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 14 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LUZVIMINDA LOLA ERWIN, AKA No. 14-72325 Luzviminda Dolang Lola, Agency No. A200-160-164 Petitioner,

v. MEMORANDUM*

MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Submitted October 10, 2018** University of Hawaii Manoa

Before: WARDLAW, BERZON, and RAWLINSON, Circuit Judges.

Luzviminda Erwin, a native and citizen of the Philippines, petitions for

review of a Board of Immigration Appeals (“BIA”) order affirming the

Immigration Judge’s (“IJ”) order finding her removable 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). 1182(a)(7)(A)(i)(I).

1. The BIA did not err in affirming the IJ’s finding that Erwin was

removable. Erwin raises three arguments to challenge her removability under 8

U.S.C. § 1182(a)(7)(A)(i)(I): (1) she was lawfully admitted to the United States as

a matter of law because she entered the Commonwealth of the Northern Mariana

Islands (“CNMI”) before the passage of the Consolidated Natural Resources Act;

(2) because she was lawfully admitted, she is removable only under 8 U.S.C. §

1227 (deportability statute) and not 8 U.S.C. § 1182(a) (inadmissibility statute);

and (3) she is not an applicant for admission within the meaning of the

Immigration and Nationality Act. Our decision in Minto v. Sessions, 854 F.3d 619,

623–26 (9th Cir. 2017), squarely forecloses these arguments, and she is therefore

removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I).

2. Erwin’s remaining arguments likewise fail. Erwin contends that the BIA

erred in permitting a single panel member to review and dismiss her appeal in a

summary disposition. Under our precedent, the BIA errs in permitting single-

member review when an appeal: (1) raises novel legal questions that are not

directly controlled by BIA or Ninth Circuit precedent; or (2) contains substantial

factual and legal questions that are applicable to a large number of noncitizens. See

Chen v. Ashcroft, 378 F.3d 1081, 1086 (9th Cir. 2004). At the time of her appeal to

the BIA, Erwin’s legal question concerning the applicability of 8 U.S.C. §

2 1182(a)(7)(A)(i)(I) to the CNMI may have been novel. But even assuming the BIA

erred in not reviewing her appeal with a full panel, remand is now unwarranted.

Remand would be futile because the issue is no longer one of first impression, as

this court set clear precedent in Minto.

3. Erwin additionally claims that the BIA erroneously ignored three

arguments on appeal: (1) her Notice to Appear (“NTA”) was deficient and did not

provide adequate notice; (2) the Department of Homeland Security (“DHS”), the

IJ, and the BIA deprived her of due process of law by not recognizing her vested

right to live and work in the CNMI indefinitely as a spouse of a citizen of the

Federated States of Micronesia; and (3) the government improperly initiated

removal proceedings after denying her parole.

A claim is unexhausted if a noncitizen fails to raise the issue to the IJ or

BIA. We lack jurisdiction to review an unexhausted claim. See 8 U.S.C. §

1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004). All of

Erwin’s additional claims are unexhausted: (1) she failed to argue to the IJ that her

NTA was deficient; (2) she did not argue to the IJ that, as a spouse of a citizen of

the Federated States of Micronesia, she had a vested right to live and work

indefinitely in the CNMI, as her only argument based on her marriage centered on

erroneously being denied parole; and (3) Erwin’s counsel stated an intent to argue

that removal proceedings were initiated erroneously after her parole denial, but did

3 not submit any briefing on the issue nor raise the issue when the IJ provided him

an opportunity to present orally the arguments he failed to brief. Because these

claims are unexhausted, the BIA properly did not review them, and we lack

jurisdiction to review them on appeal.

4. Erwin argues that the IJ and the BIA have jurisdiction to review DHS

parole decisions and grant parole-in-place relief under 8 U.S.C. § 1182(d)(5)(A).

The authority to grant this discretionary form of relief is vested solely in the

Attorney General, who has, in turn, delegated that authority to certain DHS

officials. Nadarajah v. Gonzales, 443 F.3d 1069, 1082 (9th Cir. 2006); 8 C.F.R. §

212.5(a). The IJ and BIA do not have parole authority, and the BIA therefore

properly affirmed the IJ’s finding that it lacked jurisdiction.

5. Finally, Erwin argues that the BIA erred in affirming the IJ’s denial of her

counsel’s continuance to complete briefing. We review a denial of a request for a

continuance for an abuse of discretion. An Na Peng v. Holder, 673 F.3d 1248, 1253

(9th Cir. 2012). The BIA abuses its discretion “when it fails to state its reasons and

show proper consideration of all factors when weighing equities and denying

relief.” Id. (citation omitted). The BIA considered counsel’s most compelling

reason for a continuance—that he had an unexpectedly heavy workload and could

not complete briefing. It nonetheless concluded that counsel had not offered any

satisfactory explanation for failing to seek an extension before the hearing and that

4 Erwin could not demonstrate prejudice because the IJ lacked parole authority.

Because the BIA considered the relevant factors and stated its reasons for

affirming, it did not abuse its discretion.

DENIED.