FILED
NOT FOR PUBLICATION MAR 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUGLIELMO PASQUALE, No. 11-73120
Petitioner, Agency No. A030-954-386
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 11, 2015
San Francisco, California
Before: THOMAS, Chief Judge, and McKEOWN and W. FLETCHER,
Circuit Judges.
Guglielmo Pasquale, a native and citizen of Italy, petitions for review of the
Board of Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s
(I.J.) denial of his application for cancellation of removal. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
pursuant to 8 U.S.C. § 1252, and we deny in part and dismiss in part the petition
for review.
Pasquale, a lawful permanent resident of the United States, was placed into
removal proceedings in 2003. Despite an extensive criminal record, he was
granted cancellation of removal in 2006. The Department of Homeland Security
(DHS) appealed, and while its appeal was pending, Pasquale was convicted of
additional crimes. The BIA granted DHS’s motion to remand the case to the I.J.,
who found Pasquale ineligible for cancellation of removal on the basis of one of
the new convictions, which she concluded was an aggravated felony. The BIA
disagreed, holding that the crime was not an aggravated felony, but remanded
Pasquale’s case to the I.J. in 2010 to determine whether he remained entitled to
cancellation of removal as a matter of discretion. The I.J. concluded that he did not
and ordered him removed. The BIA affirmed.
Pasquale argues that the BIA’s 2010 remand order was improper. First, he
argues that the BIA violated his Fifth Amendment due process rights by remanding
to the I.J. in 2010. “A due process violation occurs where (1) the proceeding was
so fundamentally unfair that the alien was prevented from reasonably presenting
his case, and (2) the alien demonstrates prejudice, which means that the outcome of
the proceeding may have been affected by the alleged violation.” Vilchez v.
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Holder, 682 F.3d 1195, 1199 (9th Cir. 2012) (internal quotation marks omitted).
Here, Pasquale was afforded the opportunity to “reasonably present[] his case”: he
was able to put on evidence and argue before the I.J. that he merited cancellation of
removal in spite of his criminal record. There was no due process violation.
Pasquale next argues that the BIA erred by remanding his case without being
asked to do so. But Pasquale can identify no regulation that prevents the BIA from
issuing a sua sponte remand. Even if the BIA is limited to adjudicating “questions
before it,” 8 C.F.R. § 1003.1(d)(1), a question we need not decide, the BIA could
reasonably have concluded in this case that Pasquale’s eligibility for cancellation
of removal — as a matter of law and as a matter of discretion — was “before it” in
2010. Construed as an argument that the BIA erred by reaching an issue that DHS
had waived, Pasquale’s claim likewise fails. Even in the federal courts, questions
of waiver are “left primarily to the discretion of the courts of appeals, to be
exercised on the facts of individual cases.” Singleton v. Wulff, 428 U.S. 106, 121
(1976) (plurality opinion). Therefore, even if we could review the BIA’s decision
for abuse of discretion, we would find no abuse of discretion on these facts.
Pasquale argues, in the alternative, that the I.J. and BIA erred by ignoring
evidence of his community service in denying his application for cancellation of
removal. We disagree. The I.J. did not err by not explicitly referring to the fact
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that Pasquale once testified as a state’s witness. See Vilchez, 682 F.3d at 1201
(“An IJ does not have to write an exegesis on every contention.” (internal quotation
marks omitted)). We lack jurisdiction to review the I.J.’s discretionary decision to
deny cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i).
PETITION DENIED IN PART, DISMISSED IN PART.
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