Brito-delgado v. Holder , 380 F. App'x 737 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEJANDRA BRITO-DELGADO, No. 05-77365
Petitioner, Agency No. A092-429-765
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 7, 2010**
Pasadena, California
Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and BLOCK, ***
District Judge.
Alejandra Brito-Delgado petitions for review of the Board of Immigration
Appeals’ (“BIA”) decision affirming an immigration judge’s denial of her
*
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 Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
application for cancellation of removal. We have jurisdiction pursuant to 8
U.S.C. § 1252, and we deny the petition for review.
The parties are familiar with the facts of the case so we do not repeat them
here. The BIA’s factual determination that Brito-Delgado arrived in the United
States in July 1986 is supported by substantial evidence. See INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992); see also 8 U.S.C. § 1252(b)(4)(B). Because
Brito-Delgado arrived in July 1986, she could not qualify for amnesty under the
Seasonal Agricultural Workers Program. 8 U.S.C. § 1160(a)(1)(B), (a)(2)
(allowing adjustment to permanent resident status to aliens previously granted
temporary residence due to performance of “seasonal agricultural services in the
United States for at least 90 man-days, during the 12-month period ending on May
1, 1986”). Thus, the BIA correctly found that Brito-Delgado is not eligible for
cancellation of removal under 8 U.S.C. § 1229b(a), because she was not “lawfully
admitted for permanent residence.” See Segura v. Holder, No. 08-72062, 2010
WL 2089396, at *3 (9th Cir. May 26, 2010) (“Although an alien may have been
admitted for permanent residence, he has not been lawfully admitted for permanent
residence if he was precluded from obtaining permanent resident status due to an
inability to meet the prerequisites.” (citing Monet v. INS, 791 F.2d 752, 755 (9th
Cir. 1986))).
2
Brito-Delgado’s cancellation of removal hearing did not violate due process;
she was on notice that lawful permanent resident status was a prerequisite for
cancellation of removal, see 8 U.S.C. § 1229b(a)(1), and was given a reasonable
opportunity to present her case, see Ramirez-Alejandre v. Ashcroft, 319 F.3d 365,
380 (9th Cir. 2003) (en banc) (“A BIA decision violates due process if the
proceeding was so fundamentally unfair that the alien was prevented from
reasonably presenting his case.” (quoting Sanchez-Cruz v. INS, 255 F.3d 775, 779
(9th Cir. 2001))).
Finally, the BIA did not abuse its discretion in denying Brito-Delgado’s
motion to remand. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005)
(“The BIA abuses its discretion when it acts ‘arbitrarily, irrationally, or contrary to
the law.’” (quoting Lainez-Ortiz v. INS, 96 F.3d 393, 395 (9th Cir. 1996))). First,
the additional evidence Brito-Delgado sought to present was available during her
original hearing. See 8 C.F.R. § 1003.2(c)(1). Second, Brito-Delgado failed to
establish a prima facie case of eligibility for the underlying relief sought, see
Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir. 1988) (quoting Aviles-Torres v. INS,
790 F.2d 1433, 1436 (9th Cir. 1986)), because her new evidence directly
contradicts her own testimony at the hearing.
PETITION FOR REVIEW DENIED.
3