Oscar Rojas v. Eric H. Holder Jr. , 704 F.3d 792 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR ROJAS, No. 08-74331
Petitioner,
Agency No.
v. A070-745-679
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 16, 2012—San Francisco, California
Filed December 28, 2012
Before: J. Clifford Wallace and Carlos T. Bea,
Circuit Judges, and Jane A. Restani, Judge.*
Opinion by Judge Wallace
*
The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
2 ROJAS V . HOLDER
SUMMARY**
Immigration
The panel denied Oscar Rojas’s petition for review from
the Board of Immigration Appeals’ decision affirming
without opinion an Immigration Judge’s order denying him
pre-conclusion voluntary departure.
The panel held that the IJ did not err in considering
evidence of Rojas's sexual conduct with a minor, even though
he had not been convicted of a crime, because it was
probative as to his bad character and undesirability for
permanent residency. The panel also held that the IJ's
consideration of the underlying facts of the crime did not
violate due process, because Rojas had admitted that he, as an
adult, had sexual relations with a minor.
COUNSEL
John M. Pope and Benjamin T. Wiesinger (argued), Pope &
Associates, PC, Phoenix, Arizona, for Petitioner.
Richard M. Evans, Andrea Gevas (argued), Aliza Bessie
Alyeshmerni, Office of Immigration Litigation, Washington,
D.C., for Respondent.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ROJAS V . HOLDER 3
OPINION
WALLACE, Circuit Judge:
Rojas was denied pre-conclusion voluntary departure by
an Immigration Judge (IJ). The Board of Immigration
Appeals (Board) affirmed without a written opinion, and
Rojas petitioned us for review.
Rojas’s narrow but specific argument is that the IJ erred
by considering facts which, in a criminal case, might be
evidence of a crime. He contends that in doing so, the IJ was
using a crime as evidence against him even though he had not
then been convicted of the crime alleged against him. We
have jurisdiction under 8 U.S.C. § 1252(a)(1) and we deny
the petition.
I.
Rojas entered the United States without inspection in
1989. In 2007, he was served with a Notice to Appear
charging him with removability. At a subsequent hearing,
Rojas conceded removability under 8 U.S.C.
§ 1182(a)(6)(A)(i) as an alien present in the United States
without being admitted or paroled. After pursuing other forms
of relief, Rojas eventually applied for voluntary departure.
At the voluntary departure hearing, Rojas stated that he
was thirty-one years old, and that he had a one-year-old child
whose mother was seventeen when the child was born. After
evaluating a broad range of positive and negative factors, the
IJ denied Rojas’s application based in part on Rojas’s
admission that he, as an adult, had sexual relations with a
minor.
4 ROJAS V . HOLDER
II.
Generally, we do not have jurisdiction over a denial of
voluntary departure. 8 U.S.C. § 1252(a)(2)(B), citing id.§ 1229c. However, we retain power to review “constitutional
claims or questions of law raised upon a petition for review.”
Id. § 1252(a)(2)(D).
Rojas argues that the IJ should not have considered
evidence relating to Rojas’s sexual crime for which he had
been arrested and charged but had not yet been convicted
because (1) the evidence was not relevant, and (2) doing so
violated Rojas’s due process right to a presumption of
innocence. These are legal and constitutional arguments over
which we have jurisdiction.
“Where the [Board] does not perform an independent
review of the IJ’s decision and instead defers to the IJ’s
exercise of his or her discretion, it is the IJ’s decision that we
review.” Campos-Granillo v. INS, 12 F.3d 849, 852 (9th Cir.
1993). Purely legal questions are reviewed de novo, Singh v.
INS, 213 F.3d 1050, 1052 (9th Cir. 2000), as are due process
challenges to immigration proceedings, Lopez-Umanzor v.
Gonzales, 405 F.3d 1049, 1053 (9th Cir. 2005).
III.
“[A]dministrative agencies have great latitude in
exercising their discretion to grant or deny requests for
voluntary departure.” Campos-Granillo, 12 F.3d at 852. In
determining whether an alien merits a favorable exercise of
discretion, the IJ “must weigh both favorable and unfavorable
factors.” Id. (internal quotation marks omitted). Factors for
consideration include: “the nature and underlying
ROJAS V . HOLDER 5
circumstances of the deportation ground at issue; additional
violations of the immigration laws; the existence, seriousness,
and recency of any criminal record; and other evidence of bad
character or the undesirability of the applicant as a
permanent resident.” In Re Arguelles-Campos, 22 I. & N.
Dec. 811, 817 (BIA 1999) (emphasis added). Thus, although
good moral character is not a requirement for pre-conclusion
voluntary departure under 8 C.F.R. § 1240.26(b)(1)(i),
“evidence of bad character or undesirability” is nonetheless
relevant to the IJ’s discretionary calculations.
The evidence of Rojas’s sexual conduct with a minor is
probative as to his bad character and undesirability for
permanent residency, and it was therefore properly
considered by the IJ. Although Rojas had not been convicted
of a crime for the activity, he admitted the underlying facts
before the IJ.
As to Rojas’s second argument, that the IJ’s consideration
of the underlying facts of the sexual crime violated due
process by denying Rojas a presumption of innocence, we
point out again that Rojas had admitted that he, as an adult,
had sexual relations with a minor. The IJ’s discretionary
consideration of that admission simply has no implications
for the presumption of innocence in a criminal case.
In light of the foregoing, we hold that the IJ did not
commit any error by considering the facts Rojas admitted.
PETITION DENIED.