NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 25 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PHALKUN BUN HEANG, No. 08-74058 15-70380 Petitioner, Agency No. A095-448-037 v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of Orders of the Board of Immigration Appeals
Submitted June 12, 2019** San Francisco, California
Before: GOULD and IKUTA, Circuit Judges, and PEARSON,*** District Judge.
Petitioner Phalkun Bun Heang is a Cambodian national petitioning for
review of two Board of Immigration Appeals (“BIA”) final orders. In one petition,
Heang seeks review of the BIA’s order denying her claims for adjustment of status,
* 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 Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by designation. asylum, withholding of removal, protection under the Convention Against Torture
(“CAT”), and voluntary departure. In the other petition, Heang seeks review of the
BIA’s order denying her motion to reopen the removal proceedings against her.
We have jurisdiction under 8 U.S.C. § 1252, and deny the petitions for review.
Heang argues that the BIA erred in denying her claim for adjustment of status in
light of her marriage to a U.S. citizen.
1. Heang argues that she was denied due process because her adjustment of
status interview with United States Citizenship and Immigration Services
(“USCIS”) was conducted in English. We will reverse the BIA’s decision on due
process grounds only “if the proceeding was so fundamentally unfair that the alien
was prevented from reasonably presenting his case.” Lianhua Jiang v. Holder, 754
F.3d 733, 741 (9th Cir. 2014) (quoting Colmenar v. INS, 210 F.3d 967, 971 (9th
Cir. 2000)). In determining whether a petitioner’s marriage can be a valid basis for
an adjustment of immigration status, “the central question is whether [the
petitioner and his or her spouse] intended to establish a life together at the time
they were married.” Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir. 2004).
Heang has not shown that “the outcome of the proceeding may have been
affected by the alleged violation,” in order to sustain her due process challenge.
Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009) (quoting Colmenar, 210
F.3d at 971). The BIA explicitly held that even if it were to discount evidence
2 about the marriage from Heang’s interview with USCIS, it would have found that
Heang and her husband did not intend to establish a life together. Substantial
evidence supports that determination. Testimony in front of the Immigration Judge
established that Heang and her husband did not live together, had never
consummated the marriage, and had no evidence of their intention to maintain a
genuine relationship. We deny Heang’s petition for review of the BIA’s denial of
her claim for adjustment of status.
2. The BIA denied Heang’s claim for asylum on the ground that it was
untimely under 8 U.S.C. § 1158(a)(2)(B), under which applicants must apply for
asylum within one year of arriving in the United States. Heang argues that her
asylum claim may be considered because, even though she filed it two years after
she entered the country, she faced “extraordinary circumstances relating to the
delay in filing an application.” 8 U.S.C. § 1158(a)(2)(D). We have jurisdiction to
“review the agency’s application of the . . . extraordinary circumstances exception
to undisputed facts,” and we review the BIA’s application of the exception for
substantial evidence. Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011).
We conclude that substantial evidence supports the BIA’s decision. While
“maintain[ing] . . . lawful immigrant or nonimmigrant status ... until a reasonable
period before the filing of the asylum application” establishes an extraordinary
circumstance under this exception, the BIA did not err in finding that Heang had
3 not shown that she had a timely claim for relief under this exception. 8 C.F.R.
§ 208.4(a)(5)(iv). Even if Heang could show that she should be excused from
filing for asylum until after she realized that she would not be able to adjust her
immigration status based on her marriage, Heang has not demonstrated that “the
evidence in the record compels a reasonable factfinder to conclude that” her delay
after she discovered that fact was reasonable. Tampubolon v. Holder, 610 F.3d
1056, 1059 (9th Cir. 2010) (quoting Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th
Cir. 2008)). Here, the record shows that she learned of rejection of her application
for adjustment of status on June 6, 2005, but thereafter did not file for asylum until
November 14, 2005. The record does not compel the conclusion that this was a
reasonable delay under the totality of the circumstances. For that reason, we deny
Heang’s petition to review the BIA’s denial of her asylum claim.
3. Heang has abandoned her challenges to the BIA’s denial of her
withholding of removal and CAT claims. Those challenges are waived, and we
deny the petition for review with respect to the BIA’s denial of Heang’s
withholding of removal and CAT claims. See Aguilar-Ramos v. Holder, 594 F.3d
701, 703 n.1 (9th Cir. 2010).
4. In her reply brief, Heang asks us to remand to the BIA for reconsideration
of her request for voluntary departure. Because Heang did not raise this challenge
in her opening brief, she has waived it. Rizk v. Holder, 629 F.3d 1083, 1091 n.3
4 (9th Cir. 2011).
5. The BIA denied Heang’s motion to reopen on the ground that it was
untimely and that Heang was not entitled to equitable tolling because of ineffective
assistance of counsel. Generally, a motion to reopen must be filed “within 90 days
of the date of entry of a final administrative order of removal.” 8 U.S.C.
§ 1229a(c)(7)(C)(i). However, this period will be equitably tolled “during periods
when a petitioner is prevented from filing because of deception, fraud, or error.”
Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003). Where the petitioner
alleges delay due to ineffective assistance of counsel, any tolling period ends when
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 25 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PHALKUN BUN HEANG, No. 08-74058 15-70380 Petitioner, Agency No. A095-448-037 v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of Orders of the Board of Immigration Appeals
Submitted June 12, 2019** San Francisco, California
Before: GOULD and IKUTA, Circuit Judges, and PEARSON,*** District Judge.
Petitioner Phalkun Bun Heang is a Cambodian national petitioning for
review of two Board of Immigration Appeals (“BIA”) final orders. In one petition,
Heang seeks review of the BIA’s order denying her claims for adjustment of status,
* 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 Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by designation. asylum, withholding of removal, protection under the Convention Against Torture
(“CAT”), and voluntary departure. In the other petition, Heang seeks review of the
BIA’s order denying her motion to reopen the removal proceedings against her.
We have jurisdiction under 8 U.S.C. § 1252, and deny the petitions for review.
Heang argues that the BIA erred in denying her claim for adjustment of status in
light of her marriage to a U.S. citizen.
1. Heang argues that she was denied due process because her adjustment of
status interview with United States Citizenship and Immigration Services
(“USCIS”) was conducted in English. We will reverse the BIA’s decision on due
process grounds only “if the proceeding was so fundamentally unfair that the alien
was prevented from reasonably presenting his case.” Lianhua Jiang v. Holder, 754
F.3d 733, 741 (9th Cir. 2014) (quoting Colmenar v. INS, 210 F.3d 967, 971 (9th
Cir. 2000)). In determining whether a petitioner’s marriage can be a valid basis for
an adjustment of immigration status, “the central question is whether [the
petitioner and his or her spouse] intended to establish a life together at the time
they were married.” Damon v. Ashcroft, 360 F.3d 1084, 1088 (9th Cir. 2004).
Heang has not shown that “the outcome of the proceeding may have been
affected by the alleged violation,” in order to sustain her due process challenge.
Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009) (quoting Colmenar, 210
F.3d at 971). The BIA explicitly held that even if it were to discount evidence
2 about the marriage from Heang’s interview with USCIS, it would have found that
Heang and her husband did not intend to establish a life together. Substantial
evidence supports that determination. Testimony in front of the Immigration Judge
established that Heang and her husband did not live together, had never
consummated the marriage, and had no evidence of their intention to maintain a
genuine relationship. We deny Heang’s petition for review of the BIA’s denial of
her claim for adjustment of status.
2. The BIA denied Heang’s claim for asylum on the ground that it was
untimely under 8 U.S.C. § 1158(a)(2)(B), under which applicants must apply for
asylum within one year of arriving in the United States. Heang argues that her
asylum claim may be considered because, even though she filed it two years after
she entered the country, she faced “extraordinary circumstances relating to the
delay in filing an application.” 8 U.S.C. § 1158(a)(2)(D). We have jurisdiction to
“review the agency’s application of the . . . extraordinary circumstances exception
to undisputed facts,” and we review the BIA’s application of the exception for
substantial evidence. Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011).
We conclude that substantial evidence supports the BIA’s decision. While
“maintain[ing] . . . lawful immigrant or nonimmigrant status ... until a reasonable
period before the filing of the asylum application” establishes an extraordinary
circumstance under this exception, the BIA did not err in finding that Heang had
3 not shown that she had a timely claim for relief under this exception. 8 C.F.R.
§ 208.4(a)(5)(iv). Even if Heang could show that she should be excused from
filing for asylum until after she realized that she would not be able to adjust her
immigration status based on her marriage, Heang has not demonstrated that “the
evidence in the record compels a reasonable factfinder to conclude that” her delay
after she discovered that fact was reasonable. Tampubolon v. Holder, 610 F.3d
1056, 1059 (9th Cir. 2010) (quoting Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th
Cir. 2008)). Here, the record shows that she learned of rejection of her application
for adjustment of status on June 6, 2005, but thereafter did not file for asylum until
November 14, 2005. The record does not compel the conclusion that this was a
reasonable delay under the totality of the circumstances. For that reason, we deny
Heang’s petition to review the BIA’s denial of her asylum claim.
3. Heang has abandoned her challenges to the BIA’s denial of her
withholding of removal and CAT claims. Those challenges are waived, and we
deny the petition for review with respect to the BIA’s denial of Heang’s
withholding of removal and CAT claims. See Aguilar-Ramos v. Holder, 594 F.3d
701, 703 n.1 (9th Cir. 2010).
4. In her reply brief, Heang asks us to remand to the BIA for reconsideration
of her request for voluntary departure. Because Heang did not raise this challenge
in her opening brief, she has waived it. Rizk v. Holder, 629 F.3d 1083, 1091 n.3
4 (9th Cir. 2011).
5. The BIA denied Heang’s motion to reopen on the ground that it was
untimely and that Heang was not entitled to equitable tolling because of ineffective
assistance of counsel. Generally, a motion to reopen must be filed “within 90 days
of the date of entry of a final administrative order of removal.” 8 U.S.C.
§ 1229a(c)(7)(C)(i). However, this period will be equitably tolled “during periods
when a petitioner is prevented from filing because of deception, fraud, or error.”
Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003). Where the petitioner
alleges delay due to ineffective assistance of counsel, any tolling period ends when
petitioner “definitively learns of the harm resulting from counsel’s deficiency, or
obtains ‘vital information bearing on the existence of his claim.’” Avagyan v.
Holder, 646 F.3d 672, 679 (9th Cir. 2011) (quoting Albillo-De Leon v. Gonzales,
410 F.3d 1090, 1100 (9th Cir. 2005)). We review the BIA’s denial of the motion
to reopen and its determination that Heang was not entitled to equitable tolling for
abuse of discretion. Id. at 678.
The BIA did not abuse its discretion in denying Heang’s motion to reopen
because of ineffective assistance of counsel. The latest that Heang could have
“definitively learned” of any deficiency in her counsel’s performance was when
her counsel responded to her third and final bar complaint against him, providing
the relevant information about his performance in Heang’s case. See id. at 679.
5 Because that was 203 days before Heang’s motion to reopen was filed, the BIA did
not abuse its discretion in holding that equitable tolling could not make her motion
timely. Heang’s extensive investigation into her attorney’s performance long
predated her motion to reopen and does not justify her delay in filing a motion to
reopen some six years after her final order of removal.1
DENIED.
1 We also deny Heang’s motion to supplement the record on appeal (08-74058 Dkt. No. 86; 15-70380 Dkt. No. 45).