Robledo-Amaya v. Holder , 354 F. App'x 167 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 18, 2009
No. 09-60029 Charles R. Fulbruge III
Summary Calendar Clerk
EFREN EDUARDO ROBLEDO-AMAYA
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95 752 464
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Efren Eduardo Robledo–Amaya, a native and citizen of Mexico, petitions
this court for review of an order of the Board of Immigration Appeals (BIA)
affirming the denial of his motions for change of venue and continuance of
proceedings to apply for adjustment of status. We deny his petition.
Robledo entered the country without permission in February 1986 and
resided with his family in California. He was served with a Notice to Appear in
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 09-60029
September 2008 and charged with removability pursuant to § 212(a)(6)(A)(i) of
the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(6)(A)(i). Robledo
filed, through counsel, a motion to change venue from El Paso, Texas, to
Lancaster, California. In that motion, he admitted all of the government’s
factual allegations and conceded removability, designating Mexico as the country
for removal. He claimed as relief from removal that he would apply for
adjustment of status through his United States citizen wife; cancellation of
removal under INA § 240A(b); and, alternatively, voluntary departure.
Before an immigration judge (IJ), Robledo admitted that he had been
convicted of possession of cocaine while in California. He moved for a
continuance to permit his wife’s petition for alien relative (“I-130”) to be
processed and to enable him to file a request to expunge the conviction. The IJ
denied the motions to change venue and for a continuance. The IJ found that
Robledo’s conviction for possession of cocaine rendered him inadmissible and
ineligible for waiver of inadmissibility. According to the IJ, the conviction also
left Robledo ineligible for adjustment of status. The IJ found that Robledo’s goal
of expunging his conviction was irrelevant because no petition to expunge had
actually been filed. The IJ further determined that the cocaine possession
conviction rendered Robledo ineligible for cancellation of removal under INA
§ 240A(b), 8 U.S.C. § 1129b(b). Because Robledo reserved his right to appeal, the
IJ did not consider Robledo’s alternative request for voluntary departure;
Robledo was ordered removed to Mexico.
On appeal, the BIA affirmed the IJ’s decision to deny a change of venue
and continuance. The BIA found that Robledo was not eligible for waiver and
that he had not demonstrated good cause for a continuance because he had not
even filed a petition to expunge his cocaine possession conviction. However, the
BIA determined that Robledo was eligible for 60 days’ voluntary departure. This
court subsequently denied as moot Robledo’s motion for stay of deportation
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No. 09-60029
pending review. Robledo now petitions us for review of the BIA’s decision.
We have jurisdiction to review the BIA’s affirmance of the IJ’s denial of a
continuance. See Manzano–Garcia v. Gonzales, 413 F.3d 462, 466–67 (5th Cir.
2005) (per curiam). We limit our review to the BIA’s decision, considering the
IJ’s decision only to the extent it influenced the BIA. See Mikhael v. INS, 115
F.3d 299, 302 (5th Cir. 1997). We review a decision denying a continuance for
abuse of discretion. Witter v. INS, 113 F.3d 549, 555 (5th Cir. 1997). Similarly,
we review a decision regarding venue for abuse of discretion. Chow v. INS, 12
F.3d 34, 39 (5th Cir. 1993). Under the abuse of discretion standard of review, we
“must affirm the BIA’s decision as long as it is not capricious, without foundation
in the evidence, or otherwise so irrational that it is arbitrary rather than the
result of any perceptible rational approach.” Gomez–Palacios v. Holder, 560 F.3d
354, 358 (5th Cir. 2009) (citing Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir.
2006)).
We find no abuse of discretion in the denial of Robledo’s motion for
continuance. An IJ “may grant a continuance for good cause shown,” 8 C.F.R.
1003.29, and the alien bears the burden of demonstrating good cause, Bright v.
INS, 837 F.2d 1330, 1332 (5th Cir. 1988) (per curiam). Robledo claims that a
continuance was needed to allow the I-130 to be processed and the petition for
expungement to be granted. However, Robledo’s conviction renders him
inadmissible, INA § 212(a)(2)(A), 8 U.S.C. § 1182(a)(2)(A), ineligible for waiver,
INA § 212(h), 8 U.S.C. § 1182(h), and ineligible for adjustment of status, INA
§ 245(i), 8 U.S.C. § 1255(i). In addition, expungement of the conviction would not
affect his ineligibility for admission or adjustment of status under these
petitions. See Renteria–Gonzales v. INS, 322 F.3d 804, 812–13 (5th Cir. 2002).
Because Robledo has failed to demonstrate eligibility for adjustment of status,
he has also failed to show good cause for a continuance. See Ahmed v. Gonzales,
447 F.3d 433, 438–39 (5th Cir. 2006).
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No. 09-60029
Nor was the denial of Robledo’s motion for change of venue an abuse of
discretion. An IJ may order a change of venue on motion for “good cause.” 8
C.F.R. § 1003.20(b). “Good cause is determined by balancing the factors . . .
relevant to the venue issue.” Matter of Rahman, 20 I. & N. Dec. 480, 482–83
(BIA 1992). Such factors include administrative convenience, expeditious
treatment of the case, location of witnesses, and costs of transporting witnesses
or evidence to a new location. Id. (citing Matter of Velasquez, 19 I. & N. Dec. 377(BIA 1986)). Robledo maintains that he intends to call his family members at
a hearing on his adjustment of status, and venue would therefore be appropriate
in California, where his family resides. However, Robledo’s conviction bars him
from relief, and he is consequently not entitled to a hearing at which witnesses
would be called. See Matter of Chow, 20 I. & N. Dec. 647, 652 (BIA 1993), aff’d,
Chow, 12 F.3d 34.
Robledo claims that he would be entitled to a hearing in California, where
expungement of his conviction would lift the conviction as a bar for immigration
purposes. See Lujan–Armendariz v. INS, 222 F.3d 728, 749 (9th Cir. 2000). This
argument is unavailing because Robledo must first make out a prima facie case
of eligibility for relief to obtain a change of venue. See Matter of Chow, 20 I. &
N. Dec. at 652. Whether he might prevail under the law of another jurisdiction
has no bearing on his present ineligibility, and it was no abuse of discretion to
apply the law where removal proceedings took place. See INA § 242(b)(2), 8
U.S.C. § 1252(b)(2); Ballesteros v. Ashcroft, 452 F.3d 1153, 1155 (10th Cir. 2006).
Finally, Robledo asserts that the matter should be remanded now that his
I-130 has been approved and his conviction has been expunged. These are
matters beyond the administrative record, and we may not consider them. See
INA § 242(b)(4)(A), 8 U.S.C. § 1252(b)(4)(A).
Robledo’s petition is without merit, and it is DENIED.
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