Lagua v. Holder

FILED
NOT FOR PUBLICATION JUN 17 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

GREG ORENCIO VENTURA LAGUA, No. 06-72353

Petitioner, Agency No. A074-350-656

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

GREG ORENCIO VENTURA LAGUA, No. 08-70031
aka Reginald Agustin Llacuna,
Agency No. A074-350-656
Petitioner,

v.

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
 Submitted June 14, 2011 **
Honolulu, Hawaii

Before: ALARCÓN, WARDLAW, and N.R. SMITH, Circuit Judges.

On February 27, 1993, Greg Orencio Ventura Lagua, a native and citizen of

the Philippines, entered the United States at the Honolulu Airport as a lawful

permanent resident, using the name and identity of Reginald Augustin Llacuna. In

1996, Lagua married a United States citizen, with whom he had a child, and he

maintained his assumed identity until his fraud was discovered and removal

proceedings were instituted against him nearly a decade after his entry into the

United States. Lagua petitions for review of two orders issued by the Board of

Immigration Appeals (“BIA”). He requests that his case be remanded with

instructions to consider the fact that he is the beneficiary of an approved immigrant

visa petition. We grant in part and deny in part Lagua’s consolidated petitions, and

remand the matter to the BIA with instructions.

We have jurisdiction to consider the issues raised in Lagua’s petitions for

review pursuant to INA § 242, 8 U.S.C. § 1252(a)(1). The immigration judge’s

(“IJ”) April 12, 2005 oral decision was summarily affirmed by the BIA.

Accordingly, we review the IJ’s decision for error. 8 C.F.R. § 1003.1(e)(4)(ii).

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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 Lagua challenges a number of the agency’s decisions both as error and as

violating his due process rights. Mindful of the rule of constitutional avoidance,

we first consider each of Lagua’s non-constitutional claims under the applicable

standard of review. See Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 843 (9th Cir.

2003) (“[W]e avoid considering constitutionality if an issue may be resolved on

narrower grounds . . . .”).

I

Lagua argues that the IJ erred in denying his request for a continuance

because the adjudication of his I-130 immigrant visa petition was of great

importance to his eligibility for various forms of relief from removal and his

eligibility to adjust his status to that of a lawful permanent resident.

An IJ “may grant a continuance for good cause shown.” 8 C.F.R. § 1003.29.

“When reviewing an IJ’s denial of a continuance, we consider a number of factors,

including: (1) the nature of the evidence excluded as a result of the denial of the

continuance, (2) the reasonableness of the immigrant’s conduct, (3) the

inconvenience to the court, and (4) the number of continuances previously

granted.” Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009).

Here, the IJ denied Lagua’s request for a continuance to await adjudication

of the I-130 petition, “because the case has been on the docket since August 2004,

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and the Department of Homeland Security gives no suggestion as to when it will

adjudicate the visa.” The IJ, however, failed to create a record of her consideration

of any other relevant factors. The IJ abused her discretion by failing to articulate

reasons sufficient to support a determination that a continuance was not warranted.

See id. at 1014 (“[T]he IJ abused her discretion by failing to provide any

explanation for her decision, and failing to take into account any of the facts and

circumstances of [petitioner]’s case that were relevant to the grant or denial of a

continuance.”).

II

Lagua challenges the IJ’s denial of his applications for cancellation of

removal as a nonpermanent resident under INA § 240A(b)(1), 8 U.S.C. §

1229b(b)(1); a waiver of deportability pursuant to INA § 237(a)(1)(H), 8 U.S.C. §

1227(a)(1)(H); and post-proceeding voluntary departure under INA § 240B(b), 8

U.S.C. § 1229c(b). The IJ denied those applications on the ground that Lagua did

not satisfy the applicable “good moral character” requirements for those forms of

relief from removal.

Section 242 of the INA bars appellate review of certain discretionary

decisions, including the agency’s judgments regarding whether to grant various

forms of immigration relief.. 8 U.S.C. § 1252(a)(2)(B)(i). This court also lacks the

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jurisdiction to review the agency’s discretionary good moral character

determinations. Lopez-Castellanos v. Gonzales, 437 F.3d 848, 854 (9th Cir. 2006);

but see also Moran v. Ashcroft, 395 F.3d 1089, 1091 (9th Cir. 2005), (explaining

that a good moral character determination is reviewable where it is based on one of

the statutory exclusions found in INA § 101(f), 8 U.S.C. § 1101(f)), overruled on

other grounds by Sanchez v. Holder, 560 F.3d 1028, 1030 (9th Cir. 2009) (en

banc). We retain, however, jurisdiction to consider questions of law and

constitutional questions raised in a petition for review challenging the agency’s

discretionary denial of relief. 8 U.S.C. § 1252(a)(2)(D).

We lack the jurisdiction to review the IJ’s discretionary denial of Lagua’s

applications for a § 237(a)(1)(H) waiver and voluntary departure. 8 U.S.C. §

1252(a)(2)(B)(i). Regarding Lagua’s application for cancellation of removal,

however, the IJ weighed the factors establishing Lagua’s good moral character, or

lack thereof, and concluded that “the balance tips against [Lagua].” The IJ also

concluded that “as a matter of law, [Lagua] cannot meet the good moral character

component for cancellation of removal for certain nonpermanent resident[s].

Therefore, that application is pretermitted.” Because it is unclear from the IJ’s

ruling whether her decision was based on the exercise of her discretion or her

determination that Lagua was statutorily precluded from establishing good moral

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character, we remand the matter to the agency for clarification of the grounds for

its decision.1 San Pedro v. Ashcroft, 395 F.3d 1156, 1157 (9th Cir. 2005)

(remanding for clarification where IJ’s alternative holding “ma[d]e[] impossible a

determination of the basis for the BIA’s affirmance”).

III

Lagua argues that the BIA erred in denying his October 11, 2007 motion to

reopen his removal proceedings because of the August 16, 2006 approval of his

wife’s I-130 immigrant visa petition on his behalf.

Generally, this court has jurisdiction to review the BIA’s denial of a motion

to reopen. Nath v. Gonzales, 467 F.3d 1185, 1188 (9th Cir. 2006). This court,

however, lacks jurisdiction to review a claim that the BIA should have exercised its

sua sponte power to reopen deportation proceedings. Nevarez Nevarez v. Holder,

572 F.3d 605, 607 (9th Cir. 2009). When it has jurisdiction, this court reviews the

BIA’s denial of a motion to reopen for abuse of discretion. Romero v. Holder, 568

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On remand, we direct the agency’s attention to our decision in Delmundo v.
INS, 43 F.3d 436 (9th Cir. 1994), which instructs that “fraudulent acts in applying
for permanent resident status and obtaining a driver’s license, social security card,
and voter’s identification card [that are] an extension of [an alien’s] initial
fraudulent entry” are not properly considered in determining whether an alien is
entitled to a discretionary waiver of excludability for fraud. Id. at 441; see also Jen
Hung Ng v. INS, 804 F.2d 534, 539 (9th Cir. 1986) (“The inclusion of an improper
factor in reaching a discretionary decision is grounds for remand.”).

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F.3d 1054, 1059 (9th Cir. 2009). Under this standard, the BIA’s decision will be

upheld unless it is “arbitrary, irrational, or contrary to law.” Id.

Citing 8 C.F.R. § 1003.2(c)(2), the BIA denied Lagua’s October 11, 2007

motion to reopen as untimely because its final order had been entered on April 7,

2006, and “with certain exceptions not relevant here, a motion to reopen must be

filed within 90 days of the administratively final order.” Assuming without

deciding that this court has jurisdiction to review the BIA’s decision, the BIA did

not abuse its discretion in determining that Lagua’s motion was untimely and that

it was not required to deny the motion on any other basis.

Conclusion

We grant Lagua’s petition because the IJ denied Lagua’s request for a

continuance without providing an adequate explanation of the basis for her

decision. We remand to permit the agency to address relevant considerations,

including but not limited to: the import of the pending I-130 petition to Lagua’s

eligibility for any of the requested forms of relief from removal, the reasonableness

of Lagua’s conduct in connection with the removal proceedings, and the number of

continuances previously granted. Because the IJ’s articulated basis for the decision

to pretermit Lagua’s application for a § 212(i) application flowed directly from the

denial of Lagua’s request for a continuance, we include the question of Lagua’s

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eligibility for this form of relief within the scope of this remand. See INS v.

Orlando Ventura, 537 U.S. 12, 16 (2002) (“Generally speaking, a court of appeals

should remand a case to an agency for decision of a matter that statutes place

primarily in agency hands.”).

We also grant Lagua’s petition for review on the ground that it is unclear

whether the IJ’s denial of his request for cancellation of removal was based on a

discretionary determination that he lacked good moral character, or on the ground

that he was statutorily precluded from establishing good moral character. We

remand the matter to permit the agency to clarify the basis for its decision. The

scope of this remand also permits the BIA to revisit the discretionary determination

of Lagua’s good moral character for each of the other requested forms of relief

from removal.

We deny Lagua’s petition in all other respects. We may consider Lagua’s

due process arguments, if Lagua raises them in a future petition for review, after

the agency has addressed the foregoing issues on remand. See Ventura v. INS, 317

F.3d 1003, 1005 (9th Cir. 2003) (per curiam) (remanding “without prejudice to

Ventura reinstating his petition for review . . . following reconsideration by the

BIA”).

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 The consolidated petitions are GRANTED IN PART and DENIED IN

PART, and REMANDED with instructions.

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