Filed: Sep. 12, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1335 JONATHAN CRUZALDOVINOS, a/k/a Jonathan Cruz, a/k/a Jonathan Cruz-Baldovinos, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: September 10, 2013 Decided: September 12, 2013 Before DUNCAN, DAVIS, and WYNN, Circuit Judges. Petition denied by unpublished per curiam opinion. Rion Latimore, LATIMORE ESQ. LLC, Cincinnati, Ohio
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1335 JONATHAN CRUZALDOVINOS, a/k/a Jonathan Cruz, a/k/a Jonathan Cruz-Baldovinos, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: September 10, 2013 Decided: September 12, 2013 Before DUNCAN, DAVIS, and WYNN, Circuit Judges. Petition denied by unpublished per curiam opinion. Rion Latimore, LATIMORE ESQ. LLC, Cincinnati, Ohio,..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1335
JONATHAN CRUZALDOVINOS, a/k/a Jonathan Cruz, a/k/a Jonathan
Cruz-Baldovinos,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: September 10, 2013 Decided: September 12, 2013
Before DUNCAN, DAVIS, and WYNN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Rion Latimore, LATIMORE ESQ. LLC, Cincinnati, Ohio, for
Petitioner. Stuart F. Delery, Acting Assistant Attorney
General, David V. Bernal, Assistant Director, Jesse M. Bless,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jonathan Cruzaldovinos, a native and citizen of
Mexico, petitions for review of the Board of Immigration
Appeals’ (“Board”) order sustaining in part and dismissing in
part his appeal from the immigration judge’s order of removal.
Cruzaldovinos was charged with two grounds of removability:
(1) for having been convicted of an aggravated felony theft
offense; and (2) for having been convicted of two crimes
involving moral turpitude that did not arise out of a single
scheme of misconduct and for which he was sentenced to more than
one year of imprisonment. See 8 U.S.C. § 1227(a)(2)(A)(ii),
(iii) (2006). The immigration judge sustained both charges.
On appeal, the Board concluded that the Department of
Homeland Security had not satisfied its burden of proving that
Cruzaldovinos had a qualifying aggravated felony conviction and
thus held that he was not removable on that basis. The Board,
however, affirmed the finding that Cruzaldovinos was removable
for having sustained two felony convictions for crimes involving
moral turpitude. The Board also rejected Cruzaldovinos’ request
for a remand for further proceedings pertaining to his
eligibility for cancellation of removal.
Cruzaldovinos does not dispute the immigration judge’s
finding, affirmed by the Board, that he was convicted of two
crimes involving moral turpitude, and thus that he is removable
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under 8 U.S.C. § 1227(a)(2)(A)(ii). Instead, Cruzaldovinos
asserts a three-prong challenge to the Board’s denial of his
request for remand. Specifically, Cruzaldovinos claims that, in
declining to remand his case, the Board (1) abused its
discretion; (2) acted ultra vires by impermissibly engaging in
fact-finding on the appellate level; and (3) violated his due
process rights. For the reasons that follow, we reject these
arguments and deny the petition for review.
In conjunction with his administrative appeal of the
order of removal, Cruzaldovinos also sought remand to allow him
to pursue a yet-unfiled application for cancellation of removal.
Given that Cruzaldovinos indicated his intent to pursue a new
claim for relief from removal, the remand request is more
accurately viewed as a motion to reopen. See Obioha v.
Gonzales, 431 F.3d 400, 408 (4th Cir. 2005). We review the
denial of a motion to reopen for abuse of discretion. 8 C.F.R.
§ 1003.2(a) (2013); INS v. Doherty,
502 U.S. 314, 323-24 (1992);
Mosere v. Mukasey,
552 F.3d 397, 400 (4th Cir. 2009).
The Board’s “denial of a motion to reopen is reviewed
with extreme deference, given that motions to reopen are
disfavored because every delay works to the advantage of the
deportable alien who wishes merely to remain in the United
States.” Sadhvani v. Holder, 596 F.3d 180, 182 (4th Cir. 2009)
(internal quotation marks omitted). We have recognized three
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independent grounds on which a motion to reopen removal
proceedings may be denied: “(1) the alien has not established a
prima facie case for the underlying substantive relief sought;
(2) the alien has not introduced previously unavailable,
material evidence; and (3) where relief is discretionary, the
alien would not be entitled to the discretionary grant of
relief.” Onyeme v. INS, 146 F.3d 227, 234 (4th Cir. 1998)
(citing INS v. Abudu,
485 U.S. 94, 104-05 (1988)). This court
will reverse a denial of a motion to reopen “only if it is
arbitrary, irrational, or contrary to law.” Mosere, 552 F.3d at
400 (internal quotation marks omitted).
Cruzaldovinos, a lawful permanent resident (“LPR”),
sought reopening in order to pursue the relief of cancellation
of removal. The Attorney General may cancel the removal of an
LPR from the United States if the LPR: (1) has been in lawful
permanent residence for at least five years, (2) has resided in
the United States continuously for at least seven years, and
(3) has not been convicted of any aggravated felony. 8 U.S.C.
§ 1229b(a) (2006).
The Board found that Cruzaldovinos did not demonstrate
prima facie eligibility for cancellation of removal because he
failed to demonstrate that he was not convicted of an aggravated
felony offense. It was clearly Cruzaldovinos’ burden to
demonstrate his eligibility for cancellation. See Salem v.
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Holder, 647 F.3d 111, 114-15 (4th Cir. 2011), cert. denied,
132
S. Ct. 1000 (2012). This court recently reaffirmed that “the
presentation of an inconclusive record of conviction . . . is
insufficient to meet an alien’s burden of demonstrating
eligibility for cancellation of removal.” Mondragon v. Holder,
706 F.3d 535, 545 (4th Cir. 2013). Given this unambiguous
authority, the Board did not abuse its discretion in denying the
motion to reopen because Cruzaldovinos had nothing more than an
inconclusive record of conviction to demonstrate his prima facie
eligibility for cancellation of removal.
In an effort to avoid this conclusion, Cruzaldovinos
maintains that the Board’s decision to sustain his appeal of the
aggravated felony finding is what triggered his potential
eligibility for cancellation of removal and thus, prior to that
point, he had no reason to submit evidence to satisfy his burden
of proof on cancellation. But this argument effectively ignores
the crucial fact that the immigration judge found two bases for
removal: Cruzaldovinos’ aggravated felony conviction and his
two convictions for crimes involving moral turpitude. By
identifying this alternative basis for removal, Cruzaldovinos
was on notice of the possibility that he could be found
removable on account of his two convictions for crimes involving
moral turpitude which, in turn, would reinvigorate a potential
claim for cancellation of removal. The onus was thus on
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Cruzaldovinos to present in his appeal to the Board all of his
arguments to undermine both bases for removal, which would
include any evidence pertaining to his eligibility for
cancellation of removal. On appeal to the Board, however,
Cruzaldovinos failed to challenge or even address the
alternative basis for removal.
Cruzaldovinos next contends that the Board acted ultra
vires by making factual determinations in conjunction with his
appeal of the order of removal. This argument fails to
appreciate the distinction between the Board’s adjudication of
the appeal of the order of removal and its consideration of the
request for remand filed in conjunction with the appeal. See 8
C.F.R. § 1003.2(c)(4) (2013). To be sure, the Board may “not
engage in factfinding in the course of deciding appeals.” 8
C.F.R. § 1003.1(d)(3)(iv) (2013). But the regulation governing
motions to reopen plainly states that whether to grant such
relief is a matter reserved to the Board’s discretion, 8 C.F.R.
§ 1003.2(a), and further authorizes the Board to assess the
alien’s prima facie eligibility for the relief he plans to seek.
See 8 C.F.R. § 1003.2(c)(1) (discussing process for adjudicating
motions to reopen and explaining that the Board should evaluate
the proffered evidence to determine prima facie eligibility for
the relief ultimately sought). Because this argument
erroneously conflates the regulatory prohibition on Board-level
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fact-finding in the course of an appeal and the Board’s role in
deciding a motion to reopen, we deny the petition for review as
to this issue.
We turn, finally, to Cruzaldovinos’ due process
argument. Cruzaldovinos contends that, by denying his request
for remand, the Board violated due process by depriving him a
full and fair opportunity to seek cancellation of removal. We
have jurisdiction to review this constitutional claim. See 8
U.S.C. § 1252(a)(2)(D) (2006).
It is well established in this circuit that an alien
cannot predicate a due process claim on alleged infirmities in
the adjudication of an application for discretionary relief.
Dekoladenu v. Gonzales, 459 F.3d 500, 508 (4th Cir. 2006) (“No
property or liberty interest can exist when the relief sought is
discretionary”), overruled on other grounds by Dada v. Mukasey,
554 U.S. 1 (2008). The relief of cancellation of removal is
entirely discretionary. 8 U.S.C. § 1229b(a); Sorcia v. Holder,
643 F.3d 117, 124 (4th Cir. 2011); see Obioha, 431 F.3d at 409
(recognizing that petitioner’s due process claim, stemming from
denial of motion to reopen to apply for cancellation of removal,
was flawed, in part, because “an alien does not have a legal
entitlement to discretionary relief”). We accordingly reject
Cruzaldovinos’ due process claim.
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For the foregoing reasons, we deny the petition for
review. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
PETITION DENIED
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