Paolo Lima-Ferreira v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 17, 2022
• Docket: 12-74179
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PAOLO ANTONIO LIMA-FERREIRA, No. 12-74179

Petitioner, Agency No. A079-638-449

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted May 13, 2022** San Francisco, California

Before: W. FLETCHER and KOH, Circuit Judges, and KANE,*** District Judge.

* 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 Yvette Kane, United States District Judge for the Middle District of Pennsylvania, sitting by designation. Paolo1 Antonio Lima-Ferreira, a native and citizen of Brazil, petitions for

review of a decision of the Board of Immigration Appeals (“BIA”) dismissing his

appeal from the immigration judge’s (“IJ”) denial of his motion to reopen his

removal proceedings. We have jurisdiction2 under 8 U.S.C. § 1252 and review the

BIA’s denial of a motion to reopen for an abuse of discretion. Bonilla v. Lynch,

840 F.3d 575, 581 (9th Cir. 2016).

The BIA affirmed the IJ’s denial of the motion to reopen on two independent

grounds. First, the BIA rejected Lima-Ferreira’s argument that he suffered

prejudice on procedural grounds, finding that Lima-Ferreira had not presented the

argument before the IJ. Second, the BIA observed that even if it were to consider

the merits of Lima-Ferreira’s procedurally defaulted argument, the BIA still would

not find prejudice.

The BIA did not abuse its discretion in relying on either of these two

grounds for upholding the IJ’s denial of the motion to reopen.

1. The BIA did not err in finding that Lima-Ferreira forfeited his

prejudice argument because he raised it for the first time on appeal to the BIA. See

Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (holding that the BIA

1 In his briefing for this petition for review, Lima-Ferreira spells his first name as “Paulo.” 2 The Government initially contested jurisdiction based on the jurisdictional bar set forth in 8 U.S.C. § 1252(a)(2)(C). However, the Government later withdrew this argument.

2 “does not per se err when it concludes that arguments raised for the first time on

appeal do not have to be entertained”).

2. The BIA did not err in rejecting Lima-Ferreira’s prejudice argument

on the merits because Lima-Ferreira failed to offer any “plausible grounds for

relief.” United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir. 1996).

In his appeal to the BIA and the instant petition for review, Lima-Ferreira

provided only the bare statement that he was prevented from appealing the denial

of his request for voluntary departure and a continuance to file an asylum

application. Instead of offering any plausible grounds for voluntary departure or a

continuance to file an asylum application, Lima-Ferreira’s briefing for his appeal

to the BIA and the instant petition for review focused on his argument that he

exercised due diligence in pursuing his claims. However, the panel need not and

does not address this argument because the BIA assumed Lima-Ferreira was

diligent.

The BIA saw no prejudice resulting from Lima-Ferreira’s inability to appeal

the denial of voluntary departure or a continuance to file an asylum application.

Regarding his request for voluntary departure, the BIA observed that Lima-Ferreira

“ha[d] not alleged any error in [the IJ’s denial].” Moreover, the BIA observed that

its “review of the record indicates that in light of [Lima-Ferreira]’s violent criminal

3 behavior, he would not warrant a favorable exercise of discretion.”3 With respect to

the request for a continuance to file an asylum application, the BIA observed that

any such application would have been untimely, and that Lima-Ferreira “ha[d] set

forth no basis” for waiver of the 1-year filing deadline (which Lima-Ferreira

missed by over a decade) and had not “articulated any basis” for asylum or

withholding of removal.

Thus, the BIA did not abuse its discretion in finding that Lima-Ferreira had

not demonstrated prejudice. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 827–28

(9th Cir. 2003) (finding it was not plausible that the BIA would have reversed the

IJ and granted voluntary departure because the petitioner offered no evidence to

the IJ, BIA, or Ninth Circuit to establish eligibility for voluntary departure).

PETITION DENIED.

3 Besides his conviction for assault with a deadly weapon under California Penal Code § 245(a)(1), Lima-Ferreira also admitted to having a domestic violence conviction for willful infliction of corporal injury on a spouse or cohabitant under California Penal Code § 273.5(a).