Avalos-Cardona v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERMAN AVALOS-CARDONA, No. 21-1406
Agency No.
Petitioner, A091-943-326
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 9, 2023 **
San Francisco, California
Before: MURGUIA, Chief Judge, FRIEDLAND and BENNETT, Circuit
Judges.
Petitioner German Avalos-Cardona is a native and citizen of Mexico. He
petitions for review of a Board of Immigration Appeals (“BIA”) order
dismissing his appeal of an immigration judge’s (“IJ”) decision denying his
application for adjustment of status due to inadmissibility, dismissing his waiver
*
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).
application under 8 U.S.C. § 1182(h) as untimely, and denying termination for
lack of subject matter jurisdiction. We have jurisdiction pursuant to 8 U.S.C.
§ 1252. “Where . . . the BIA has reviewed the IJ’s decision and incorporated
portions of it as its own, we treat the incorporated parts of the IJ’s decision as
the BIA’s.” Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021) (quoting
Molina-Estrada v. I.N.S., 293 F.3d 1089, 1093 (9th Cir. 2002)). We DENY the
petition for review. Because the parties are familiar with the facts and the
procedural history of this case, we recount them only as necessary to explain
our disposition.
1. The BIA properly held that Avalos-Cardona was ineligible for
adjustment of status. We review questions of law de novo. Shin v. Mukasey,
547 F.3d 1019, 1023 (9th Cir. 2008). The IJ held that Avalos-Cardona’s 2008
conviction under Cal. Penal Code § 273.5, for inflicting injury on his spouse,
constituted a crime involving moral turpitude (“CIMT”). 1 A noncitizen with
one CIMT may still be admissible if he meets the petty offense exception. See 8
U.S.C. § 1182(a)(2)(A)(ii). But the BIA correctly determined that Avalos-
Cardona’s 2008 CIMT conviction did not qualify for the petty offense exception
because he also had two 1991 CIMT convictions.2 Id. (limiting the exception to
1
Avalos-Cardona did not challenge the IJ’s ruling before the BIA, and
does not challenge it now.
2
The two convictions were for grand theft from a person, in violation of
former Cal. Penal Code § 487.2, and possession of marijuana for sale, in
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noncitizens who have “committed only one crime”); see also Castillo-Cruz v.
Holder, 581 F.3d 1154, 1161–62 (9th Cir. 2009).
Our decision would not change even if Avalos-Cardona could qualify for
a waiver of his two 1991 convictions under the former section 212(c). 3 “[A]
grant of section 212(c) relief merely waives the finding of deportability.”
Becker v. Gonzales, 473 F.3d 1000, 1003–04 (9th Cir. 2007) (quoting Matter of
Balderas, 20 I. & N. Dec. 389, 391 (BIA 1991)). “[T]he crimes alleged . . . do
not disappear from the alien’s record for immigration purposes.” Id. (citation
omitted). Avalos-Cardona contends that Matter of Balderas, 20 I. & N. Dec.
389 (BIA 1991), is inapposite because—unlike the respondent in Balderas—he
has “no previous removal proceedings and has not previously applied for”
section 212(c) relief. But this is irrelevant, because although a successful
application for a “waiver of deportation [would] give[] the alien a chance to stay
in the United States despite his misdeed, . . . it [would] not expunge the
violation of Cal. Health & Safety Code § 11359. Avalos-Cardona conceded
before the IJ that these offenses were CIMTs.
3
This section was repealed by the passage of the Illegal Immigration and
Immigrant Responsibility Act (“IIRIRA”) in 1996. 8 U.S.C. § 1182(c).
However, a section 212(c) waiver remains available to noncitizens such as
Avalos-Cardona who pled guilty to offenses prior to 1996. I.N.S. v. St. Cyr, 533
U.S. 289, 326 (2011). The waiver allows a noncitizen with criminal convictions
to seek a discretionary waiver of deportation upon a showing that he was a
lawful permanent resident, had accrued seven consecutive years of “lawful
unrelinquished domicile,” and had not been convicted of an aggravated felony
for which he had served a term of at least five years. See Luna v. Holder, 659
F.3d 753, 755–56 (9th Cir. 2011) (citation omitted).
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conviction.” Molina-Amezcua v. I.N.S., 6 F.3d 646, 647 (9th Cir. 1993).
2. The IJ reasonably rejected Avalos-Cardona’s application for an 8
U.S.C. § 1182(h) waiver of his 2008 conviction as untimely. “The [IJ] may set
and extend time limits for the filing of applications and related documents and
responses thereto.” 8 C.F.R. § 1003.31(h). “If an application or document is
not filed within the time set by the [IJ], the opportunity to file that application or
document shall be deemed waived.” Id. We review an IJ’s decision to deem
such applications waived for abuse of discretion. Taggar v. Holder, 736 F.3d
886, 889 (9th Cir. 2013).
The IJ had set a deadline of April 20, 2017, for all applications for relief. 4
After being granted two further continuances, Avalos-Cardona submitted on
September 7, 2017, an application to adjust status, an application for a waiver of
inadmissibility under former section 212(c), and an application for cancellation
of removal.5 Then, on March 9, 2019, at the merits hearing, Avalos-Cardona’s
counsel stated she “would like to file for the [§ 1182(h)] waiver.” The IJ did
not abuse his discretion in deeming Avalos-Cardona’s § 1182(h) application
untimely because he attempted to file it one-and-a-half years after the “clear”
deadline the IJ had set for “all relief applications.”
4
The IJ had already continued the deadline once before extending it to
this date.
5
The IJ asked Avalos-Cardona’s counsel “[w]hat else” he had to submit.
Avalos-Cardona’s counsel responded: “That’s it at this time.”
4
Avalos-Cardona contends that he should have been excused from the
filing deadline because he reasonably assumed that he would prevail on his
section 212(c) waiver application. Avalos-Cardona claims that he based this
assumption on DHS’s decision not to submit a brief challenging his eligibility
for relief prior to the merits hearing. But as the BIA noted, it is Avalos-
Cardona’s burden to establish his eligibility for relief—not DHS’s burden to
establish lack thereof. 8 U.S.C. § 1229a(c)(4)(A).
Avalos-Cardona also contends that the IJ caused his untimely application
by “fail[ing] to inform” him of his potential eligibility for a § 1182(h) waiver,
thus depriving him of an “opportunity to develop the issue.” But as the BIA
noted, this contention is belied by the record. Avalos-Cardona’s counsel raised
the potential for a § 1182(h) waiver application in 2015 and eventually prepared
such an application, but chose not to submit it by the deadline set by the IJ.
3. Avalos-Cardona’s argument that the IJ did not have subject matter
jurisdiction because his Notice to Appear (“NTA”) lacked the time and place of
proceedings is foreclosed by United States v. Bastide-Hernandez, 39 F.4th 1187(9th Cir. 2022) (en banc). See id. at 1191–92 (holding that an NTA’s failure to
comply with the requirements under 8 U.S.C. § 1229(a)(1)(G)(i) does not
deprive the IJ of jurisdiction).
PETITION FOR REVIEW DENIED.
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