Robleto-Pastora v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JORGE FILADELFO ROBLETO-PASTORA, 
Petitioner,
No. 07-71492
v.
 Agency No.
ERIC H. HOLDER JR., Attorney A027-447-476
General,
Respondent.


JORGE FILADELFO ROBLETO-PASTORA,  No. 07-72091
Petitioner, Agency No.
v.
 A027-447-476
ERIC H. HOLDER JR., Attorney ORDER AND
General, AMENDED
Respondent.
 OPINION

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

Argued and Submitted
December 10, 2008—Seattle, Washington

Filed May 27, 2009
Amended January 11, 2010

Before: Robert R. Beezer, Ronald M. Gould and
Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

783
 ROBLETO-PASTORA v. HOLDER 787

COUNSEL

Philip James Smith, Nelson Smith, LLP, Portland, Oregon,
for the petitioner.
788 ROBLETO-PASTORA v. HOLDER
Gregory G. Katsas, Richard M. Evans, and Paul Fiorino,
United States Department of Justice, Washington, D.C., for
the respondent.

ORDER

The opinion filed May 27, 2009, and published at 567 F.3d
437, is hereby amended. The amended opinion is filed con-
currently with this order. With the amendments, the panel
votes to deny the petition for rehearing. Judge Gould and
Judge Callahan vote to deny the petition for rehearing en
banc, and Judge Beezer so recommends.

The full court was advised of the suggestion for rehearing
en banc and no judge requested a vote on whether to rehear
the matter en banc. Fed. R. App. P. 35. The petition for
rehearing and petition for rehearing en banc are hereby
DENIED. The panel will entertain any additional petitions for
rehearing or rehearing en banc that are filed in accordance
with the applicable rules.

SO ORDERED.

OPINION

CALLAHAN, Circuit Judge:

Jorge Filadelfo Robleto-Pastora (“Robleto” or “petitioner”),
born June 5, 1960, is a native and citizen of Nicaragua who
entered the United States in 1984, was granted asylum, then
adjusted status to that of lawful permanent resident (some-
times referred to herein as “LPR”) in 1988. Following his
2005 forgery conviction in Oregon state court, petitioner was
ordered removed as an aggravated felon pursuant to sections
237(a)(2)(A)(iii) and 101(a)(43)(R) of the Immigration and
 ROBLETO-PASTORA v. HOLDER 789
Nationality Act (“INA”). 8 U.S.C. §§ 1227(a)(2)(A)(iii),
1101(a)(43)(R). He petitions for review of the removal order,
and the denial of his motion to reconsider that order. We deny
both petitions.

I.

A. Factual Background

Robleto and several of his family members left Nicaragua
in the mid-1980s when the Sandinistas rose to power. In 1986,
he and other family members were granted asylum pursuant
to section 208 of the INA. See 8 U.S.C. § 1158. On October
2, 1988, he adjusted his status to lawful permanent resident
pursuant to section 209(b). 8 U.S.C. § 1159(b).

In October 2004, Robleto was arrested and charged in Ore-
gon state court with forgery-related offenses involving the
distribution of false identifications. On July 29, 2005, he pled
no contest to six counts of first degree forgery, and was sen-
tenced to thirteen months in prison. He was released from
prison after eleven months, and then charged with removabil-
ity under section 237(a)(2)(A)(iii) of the INA. See 8 U.S.C.
§ 1227(a)(2)(A)(iii).

During the removal proceedings, Robleto sought relief
from removal by (1) submitting a new application for asylum,
(2) applying for withholding of removal under section
241(b)(3) of the INA and the Convention Against Torture
(“CAT”), and (3) seeking to adjust his status under section
209(b) of the INA in connection with a waiver of inadmissi-
bility under section 209(c). 8 U.S.C. § 1159(b)-(c).

On August 23, 2006, an Immigration Judge (“IJ”) ruled that
Robleto was ineligible to apply for adjustment of status under
section 209(b) because that section was available only to
asylees, and not lawful permanent residents such as Robleto.
790 ROBLETO-PASTORA v. HOLDER
Following several continuances, Robleto appeared before
an IJ on December 5, 2006. He testified that his father and
brother were employees in the Somoza government, and that
he worked as a mechanic in the government’s “General Cus-
toms” division. All three of them lost their jobs when the
Sandinistas took control of the government. Robleto testified
that he was unable to find gainful employment after he was
fired, but admitted that he did not look for work in the private
sector.

Other than losing his job, Robleto did not allege that he suf-
fered actual persecution by the Sandinistas. Robleto’s mother
testified generally that the Sandinistas harassed the entire
family due to their association with the Somoza government,
but she failed to identify any specific persecution suffered by
Robleto. Robleto’s brother, Sergio, however, was detained by
the Sandinistas for several hours in 1981 based on suspicions
that he was involved with a school bombing. Another brother,
Alvaro, was also detained by the Sandinistas in 1982, and was
beaten and tortured. Robleto further testified that he is related
to Eden Pastora, a famous anti-Sandinista leader.

Noting the 2006 reelection of Sandinista leader, Daniel
Ortega, Robleto testified that he feared returning to Nicara-
gua. He alleged that the government would think he was an
American spy, but cited no basis for this fear. He also failed
to produce evidence that the current democratically-elected
administration was persecuting former Somoza-government
employees or members of his family. In fact, he testified that
several aunts and uncles from both sides of his family, and at
least one grandparent, still live in Nicaragua, and his mother
testified that she and her husband had gone back to visit since
leaving in the 1980s.

Citing, among other things, Robleto’s aggravated felony,
the IJ denied Robleto’s application for asylum.1 The IJ also
1
The IJ concluded that Robleto had obtained asylum derivatively
through his father. While it is unclear from the record whether his grant
 ROBLETO-PASTORA v. HOLDER 791
denied his application for withholding based on his failure to
establish past persecution or a well-founded fear of persecu-
tion, and ordered him removed to Nicaragua.

B. BIA Decision

On March 27, 2007, the BIA dismissed Robleto’s appeal
from the IJ’s decision finding him removable as charged and
denying his applications for relief. The BIA held that the IJ
properly pretermitted Robleto’s new asylum application based
on his aggravated felony conviction, and concluded that
Robleto failed to establish that he was entitled to withholding
of removal. The BIA rejected Robleto’s contentions that he
retained the status of an asylee, and that such status entitled
him to a presumption of a well-founded fear of persecution.
Noting that his original asylum application contained no alle-
gation of past persecution, the BIA held that a prior grant of
asylum was insufficient to establish the presumption. The
BIA noted that Robleto presented no evidence that he would
be of any interest to the current administration, or that it oth-
erwise persecuted former Somoza-government employees or
relatives of former government employees. Accordingly, the
BIA concluded that Robleto failed to establish a likelihood of
future persecution in Nicaragua.

The BIA also concluded that Robleto’s status was that of
a lawful permanent resident, not an asylee, and that he
retained that status until a final order of removal. Thus, it con-
cluded that Robleto’s request to apply for adjustment of status
under section 209(b) in connection with a waiver of inadmis-
sibility under section 209(c) “made no sense.” Finally, the
BIA concluded that Robleto’s due process rights were not
violated when the IJ denied his request for a continuance to

of asylum was primary or derivative, it was nonetheless his burden to
establish past persecution or a well-founded fear of future persecution. See
Unuakhaulu v. Gonzales, 416 F.3d 931, 937-39 (9th Cir. 2005).
792 ROBLETO-PASTORA v. HOLDER
obtain his immigration records because he failed to establish
prejudice resulting from the denial.

On April 20, 2007, Robleto filed a motion for reconsidera-
tion with respect to the BIA’s determination that he was ineli-
gible to apply for adjustment of status under section 209(b).
On May 3, 2007, the BIA denied Robleto’s motion to recon-
sider. Robleto filed timely petitions for review of that order
and the March 27, 2007, order dismissing his appeal.2

II.

A. Jurisdiction and Standards of Review

We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to
review final orders of removal involving “constitutional
claims or questions of law,” such as the ones presented in
Robleto’s petitions. See Morales-Alegria v. Gonzales, 449
F.3d 1051, 1053 (9th Cir. 2006). Where the BIA conducts its
own review of the evidence and law, “our review is limited
to the BIA’s decision, except to the extent the IJ’s opinion is
expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957
(9th Cir. 2006) (citation and internal quotation marks omit-
ted).

We review the BIA’s determination of purely legal ques-
tions de novo. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th
Cir. 2004). We may reverse the BIA’s determination that an
applicant is ineligible for asylum or withholding of removal
“only if the evidence presented by [the applicant] is such that
a reasonable fact-finder would be compelled to conclude that
the requisite fear of persecution existed.” Khourassany v. INS,
208 F.3d 1096, 1100 (9th Cir. 2000); see also INS v. Elias-
Zacarias, 502 U.S. 478, 481 n.1 (1992) (noting that “[t]o
2
Petitioner presents no independent grounds challenging the order deny-
ing his motion to reconsider. Accordingly, we deny his petition for review
of that order for the reasons set forth herein.
 ROBLETO-PASTORA v. HOLDER 793
reverse the BIA finding we must find that the evidence not
only supports that conclusion, but compels it”) (emphasis in
original).

B. Application for Asylum and Withholding of Removal

We begin with the most straightforward of petitioner’s
claims for relief: his applications for asylum and withholding
of removal under the INA and the CAT. “An application for
asylum under 8 U.S.C. § 1158 is generally considered an
application for withholding of removal under 8 U.S.C.
§ 1231(b)(3).” Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th
Cir. 2006) (citing 8 C.F.R. § 1208.3(b)). For asylum applica-
tions filed after April 1, 1997, an applicant is also considered
for eligibility for withholding of removal under the CAT. See
8 C.F.R. § 208.13(c)(1).

[1] “An alien is eligible for asylum relief if she can prove
that she is a refugee, which she can establish by proving either
actual past persecution or a well-founded fear of future perse-
cution” on account of race, religion, nationality, membership
in a particular social group, or political opinion. Lolong v.
Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007); 8 U.S.C.
§ 1101(a)(42)(A). The agent(s) of persecution must be “the
government or . . . persons or organizations which the govern-
ment is unable or unwilling to control.” Reyes-Reyes v. Ash-
croft, 384 F.3d 782, 788 (9th Cir. 2004) (internal quotation
marks omitted). “Once an applicant demonstrates past perse-
cution, there is a presumption of a well-founded fear of future
persecution.” Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th
Cir. 2000).

[2] Robleto argues that he is eligible for asylum and with-
holding based on his previous grant of asylum, which he
asserts entitles him to a presumption of a well-founded fear of
future persecution. However, even assuming that Robleto’s
previous grant of asylum was based on actual past persecu-
tion, the BIA correctly determined that he is currently ineligi-
794 ROBLETO-PASTORA v. HOLDER
ble for asylum due to his aggravated felony conviction.3
Rendon v. Mukasey, 520 F.3d 967, 973 (9th Cir. 2008) (recog-
nizing that an alien convicted of an aggravated felony is ineli-
gible for asylum) (citing U.S.C. §§ 1158(b)(2)(A)(ii),
(b)(2)(B)(I)); see also 8 C.F.R. § 1208.13(c)(1) (providing
that for applications filed after April 1, 1997, an applicant
“shall not qualify for asylum” if he has been convicted of an
aggravated felony) (emphasis added).

[3] While Robleto’s conviction precludes his current asy-
lum application, it does not preclude his application for with-
holding of removal under section 241(b)(3) of the INA. 8
U.S.C. § 1231(b)(3).4 “ ‘To qualify for withholding of
removal, an alien must demonstrate that it is more likely than
not that he would be subject to persecution on one of the spec-
ified grounds.’ ” Zehatye, 453 F.3d at 1190 (quoting Al-Harbi
v. INS, 242 F.3d 882, 888 (9th Cir. 2001)). The “standard for
withholding of removal is more stringent than the well-
founded fear standard governing asylum,” and “requires
objective evidence that it is more likely than not that the alien
will be subject to persecution upon deportation.” Id. (citations
and quotation marks omitted). While a showing of past perse-
cution entitles an alien to a presumption of eligibility for with-
holding of removal, it is the alien’s burden to establish such
persecution. Fedunyak v. Gonzales, 477 F.3d 1126, 1130 (9th
Cir. 2007); Unuakhaulu, 416 F.3d at 938-39.
3
Robleto does not contest that his conviction is an aggravated felony.
4
Robleto’s aggravated felony does not bar him from applying for with-
holding of removal under 8 U.S.C. § 1231(b)(3). Subsection (b)(3)(B)(ii)
provides that an alien convicted of a “particularly serious crime” is ineligi-
ble for withholding of removal. The statute authorizes the Attorney Gen-
eral to designate a crime “particularly serious” and provides that any
aggravated felony resulting in a sentence of five years or more “shall be
considered . . . a particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B).
Here, Robleto’s conviction did not result in a sentence of five or more
years, and the Attorney General has not otherwise determined that his
crime is “particularly serious.”
 ROBLETO-PASTORA v. HOLDER 795
The BIA determined that Robleto’s prior grant of asylum
was insufficient to establish a presumption of a well-founded
fear of future persecution based on past persecution. We
agree.

[4] Here, neither the record nor Robleto’s own testimony
establishes past persecution. While Robleto’s original asylum
application identifies incidents from the early 1980s involving
his brothers, Sergio and Alvaro, it contains no allegation that
Robleto himself was persecuted. See Prasad v. INS, 47 F.3d
336, 340 (9th Cir. 1995) (concluding that “attacks on family
members do not necessarily establish a well-founded fear of
persecution absent a pattern of persecution tied to the petition-
er[ ]”). Moreover, Robleto acknowledged during the immigra-
tion proceedings that, other than losing his job, he was not
personally targeted by the Sandinistas. Even in his 2006 appli-
cation for asylum and withholding of removal, Robleto identi-
fied no instances of persecution involving himself. Based on
Robleto’s failure to establish that his prior grant of asylum
was based on past persecution, we conclude that the BIA cor-
rectly determined that he was not entitled to a presumption of
a well-founded fear of persecution.

Furthermore, we find that the record supports the BIA’s
determination that Robleto failed to show a likelihood of
future persecution in Nicaragua. Robleto presented no evi-
dence indicating that the current administration persecutes
former employees of the Somoza government or family mem-
bers of those who opposed the Sandinistas more than twenty
years ago. Moreover, Robleto failed to present a plausible
basis for his alleged fear of returning to Nicaragua. Rather, he
testified that he thought that the current Nicaraguan adminis-
tration would think he was an American spy because he had
unsuccessfully tried to enlist in the United States Army in the
early 1990s. He did not indicate how the administration would
know this fact, or why it would lead the government to
believe he was a spy, or even that the government actually
persecutes American “spies.” Finally, he offered no evidence
796 ROBLETO-PASTORA v. HOLDER
that any family member or former government employee is
persecuted by the current Nicaraguan administration, and
indicated that several of his aunts and uncles from both sides
of his family, and at least one grandparent, still live in Nicara-
gua.

[5] Based on this record, we are not compelled to reach a
conclusion contrary to the BIA’s. See Khourassany, 208 F.3d
at 1100. Neither can we conclude that petitioner is entitled to
relief under the CAT, as there was no evidence regarding a
likelihood that Robleto would be tortured upon his return. See
Hamoui v. Ashcroft, 389 F.3d 821, 826-27 (9th Cir. 2004)
(noting that to be eligible for withholding under the CAT, the
applicant must establish that he is “more likely than not” to
be tortured upon removal). Based on the foregoing, we con-
clude that the BIA’s determination is supported by the record,
and that Robleto is not entitled to withholding from removal
under the INA or the CAT.

C. Relief under Section 209(b) and (c)

[6] Robleto asserts that he can avoid removal by “re-
adjusting” his status to that of a lawful permanent resident
under section 209(b) in connection with a waiver of inadmis-
sibility under 209(c). Section 209(b) allows an asylee to
adjust status to that of LPR, but requires that the asylee be
otherwise admissible. 8 U.S.C. § 1159(b)(5). Petitioner con-
cedes inadmissibility based on his aggravated felony convic-
tion, and seeks to overcome this barrier to adjustment through
a waiver of inadmissibility pursuant to section 209(c). Section
209(c) provides the Secretary of Homeland Security or the
Attorney General with discretion to waive inadmissibility “for
humanitarian purposes, to assure family unity, or when it is
otherwise in the public interest.” 8 U.S.C. § 1159(c).

[7] Despite having already obtained LPR status in 1988,
petitioner contends that he is eligible for relief under section
209 because his asylee status was never terminated, and that
 ROBLETO-PASTORA v. HOLDER 797
he therefore holds asylee status and LPR status simultaneously.5
Without deciding and regardless of whether Robleto simulta-
neously holds asylee and LPR status, we conclude that he is
ineligible for relief from removal under section 209 of the
INA, 8 U.S.C. § 1159, and that his petition must therefore be
denied.

Section 209(b) provides as follows:

The Secretary of Homeland Security or the Attorney
General . . . may adjust to the status of an alien law-
fully admitted for permanent residence the status of
any alien granted asylum who—

(1) applies for such adjustment,

(2) has been physically present in the
United States for at least one year after
being granted asylum,

(3) continues to be a refugee within the
meaning of section 1101(a)(42)(A) of this
title or a spouse or child of such a refugee,
5
Petitioner premises his argument for relief under § 209 on the fact that
his asylum status was never formally terminated. He asserts that section
208(c)(3) of the INA and its attendant regulations require formal termina-
tion of asylum status prior to removal. Section 208(c)(3), however, simply
provides that asylum may be terminated under specific circumstances and
says nothing about formal termination proceedings. 8 U.S.C. § 1158(c)(3).
Further, in the analogous context of refugees who have obtained LPR sta-
tus, we have held that formal termination of refugee status is not a precon-
dition to removal. Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir.
2006) (noting that “regardless of whether a refugee loses refugee status
upon adjusting status to lawful permanent resident . . . the refugee may be
removed”) (citing In re Smriko, 23 I & N Dec. 836, 842 (BIA 2005)); see
also Stolaj v. Holder, 577 F.3d 651, 657 (6th Cir. 2009) (holding that for-
mal termination of asylum status was not a precondition to removing a
lawful permanent resident).
798 ROBLETO-PASTORA v. HOLDER
(4) is not firmly resettled in any foreign
country, and

(5) is admissible . . . .

8 U.S.C. § 1159(b) (emphasis added). By its own terms, sec-
tion 209(b) applies to asylees seeking to adjust status to that
of LPR, a process petitioner completed in 1988. It says noth-
ing about a lawful permanent resident “re-adjusting” his status
to that of lawful permanent resident. Nor does section 209
provide that such adjustment of status is a means to avoid
removal. Cf. Abebe v. Mukasey, 554 F.3d 1203, 1205 (9th Cir.
2009) (en banc) (construing former section 212(c) of the INA
in accordance with its plain language as only providing dis-
cretionary relief from inadmissibility — not deportation).
Petitioner cites no authority, nor could we find any, providing
that an asylee who acquires LPR status is eligible for relief
from removal under section 209.6 Morever, relevant authority
indicates that aliens retain their LPR status until a final order
of removal. See 8 C.F.R. § 1001.1(p).7 Thus, regardless of
6
Petitioner cites several BIA cases in which lawful permanent residents
were permitted to seek relief from removal by “re-adjusting” status to that
of LPR pursuant to section 245(a) of the INA in connection with section
212’s various waiver provisions. Those cases are inapposite as they con-
cern distinct statutes which apply to broad classes of aliens who have
immigrant visas immediately available. See In re Mendez-Moralez, 21 I.
& N. Dec. 296 (BIA 1996); Matter of Gabryelsky, 20 I. & N. Dec. 750
(BIA 1993). By contrast, section 209(b) is specific to asylees, and it has
never been construed to apply to asylees who have already obtained LPR
status and who merely seek to avoid removal. See In re K-A-, 23 I. & N.
Dec. 661 (BIA 2004) (concluding that an asylee could apply for relief
from removal under section 209(b) and (c) where she had not previously
acquired LPR status).
7
That section defines “[t]he term lawfully admitted for permanent resi-
dence” as “the status of having been lawfully accorded the privilege of
residing permanently in the United States as an immigrant in accordance
with the immigration laws, such status not having changed. Such status
terminates upon entry of a final administrative order of exclusion, depor-
tation, removal, or rescission.” (emphasis added).
 ROBLETO-PASTORA v. HOLDER 799
whether petitioner retained his asylee status simultaneously
with his LPR status, there is no dispute that he remained an
LPR until a final order of removal. Accordingly, as an asylee
who already acquired LPR status, section 209(b) does not
apply to him, and by extension, the waiver of inadmissibility
under section 209(c) is also foreclosed. We therefore affirm
the BIA’s decision and hold that an alien who has previously
adjusted status to that of LPR retains that status until a final
order of removal and cannot “re-adjust” status to that of an
LPR under section 209(b) in order to avoid removal.

[8] We find support for our perspective in cases from our
sister circuits, which have held that refugees who adjust status
to lawful permanent resident are ineligible for relief from
removal under section 209(a) in connection with a waiver of
inadmissibility under section 209(c). Gutnik v. Gonzales, 469
F.3d 683, 692 (7th Cir. 2006) (holding that an alien who
adjusted status from refugee to LPR was no longer eligible to
apply for a waiver of inadmissibility in connection with an
adjustment of status under section 209); Saintha v. Mukasey,
516 F.3d 243, 252-53 (4th Cir. 2008) (applying Chevron def-
erence to the BIA’s determination that a refugee who had
already acquired LPR status was precluded from subsequently
re-adjusting to LPR status).

While these cases involve section 209(a), which concerns
adjustment of status from refugee to LPR, they are nonethe-
less instructive. In Gutnik, the Seventh Circuit deferred to the
BIA’s determination that relief under section 209 was
unavailable to a removable refugee who had previously
adjusted his status to that of LPR. Gutnik, 469 F.3d at 692.
The BIA noted that allowing Gutnik to apply for a waiver
under section 209(c) would place “him at an unfair advantage
over other aliens and would improperly insulate him from his
criminal misconduct which occurred many years after his
arrival as a refugee.” Id. at 689. This reasoning echoes the
concern we voiced in Kaganovich in deciding that refugee
status should not be used to insulate aliens from the otherwise
800 ROBLETO-PASTORA v. HOLDER
applicable removal statute. 470 F.3d at 898 (finding persua-
sive the BIA’s holding in In re Smriko, 23 I. & N. Dec. 836
(BIA 2005) that 8 U.S.C. § 1157(c)(4) should not be read to
shield refugees from the INA’s general removal provision).

Similarly, in Saintha, the Fourth Circuit deferred to the
BIA’s interpretation of section 209(a)(1) as precluding relief
from removal for a refugee who had previously acquired LPR
status.8 Saintha, 516 F.3d at 247, 253. The BIA rejected Sain-
tha’s application to adjust status a second time under section
209(a) in connection with a waiver of inadmissibility under
section 209(c), concluding that the plain language of section
209(a)(1) precluded “a refugee who has already acquired LPR
status . . . from subsequently re-adjusting to LPR status.” Id.
at 247. More specifically, the BIA read section 209(a)(1) as
providing three criteria for adjusting status, one of which
requires the alien not to have already “acquired permanent
resident status.” Id. at 253. Because Saintha had already
acquired LPR status, he could not satisfy this criterion, and
8
Section 209(a)(1) provides in relevant part:
a) Criteria and procedures applicable for admission as immigrant;
effect of adjustment.
(1) Any alien who has been admitted to the United States
under section 1157 of this title —
(A) whose admission has not been terminated by the Sec-
retary of Homeland Security or the Attorney General pursu-
ant to such regulations as the Secretary of Homeland
Security or the Attorney General may prescribe,
(B) who has been physically present in the United States
for at least one year, and
(C) who has not acquired permanent resident status,
shall, at the end of such year period, return or be returned to the
custody of the Department of Homeland Security for inspection
and examination for admission to the United States as an immi-
grant in accordance with the provisions of sections 1225, 1229a,
and 1231 of this title.
8 U.S.C. § 1159(a)(1) (emphasis added).
 ROBLETO-PASTORA v. HOLDER 801
therefore was ineligible to adjust status a second time. Id. The
Fourth Circuit agreed with the BIA’s interpretation, noting
that it was “logical to conclude that an alien . . . who has pre-
viously acquired permanent resident status but was later ren-
dered removable by the commission of multiple crimes, is
ineligible to acquire LPR status again under § 1159.” Id.

We find the Fourth and Seventh Circuits’ interpretation of
section 209(a) to be persuasive, and we see no reason why we
should read 209(b) in a contrary manner with respect to
asylees who have acquired lawful permanent resident status.
Although section 209(a) explicitly provides that adjustment
under that section is unavailable to refugees who have already
“acquired permanent resident status,” see 8 U.S.C.
§ 1159(a)(1)(C), and section 209(b) contains no such provi-
sion, the language of section 209(b) is nonetheless plain. It
provides the Secretary of Homeland Security or the Attorney
General with discretion to “adjust to the status of an alien
lawfully admitted for permanent residence the status of any
alien granted asylum . . . .” 8 U.S.C. § 1159(b). Simply put,
it allows the government to adjust an alien’s status from
asylee to LPR; it does not permit “re-adjustment” of status for
asylees who have already acquired LPR status and we decline
to expand the statute’s coverage to such individuals. To do so
would provide unique relief to asylees who have acquired
LPR status, while precluding such relief for similarly situated
refugees, many of whom, unlike petitioner, will not have been
convicted of an aggravated felony.

Significantly, the legislative history of the INA’s asylum
provisions supports our reluctance to treat refugees and
asylees disparately, as it indicates that the two classes of
aliens were to have essentially “equivalent status” under the
law. The INA’s asylum provisions were enacted into law pur-
suant to the Refugee Act of 1980. The Refugee Act, in addi-
tion to “regulariz[ing] the procedures governing the admission
of refugees into the United States,” INS v. Stevic, 467 U.S.
407, 425 (1984), required the Attorney General to establish
802 ROBLETO-PASTORA v. HOLDER
procedures for “determining asylum claims filed by aliens
who are physically present in the United States.” Refugee Act
of 1980, S. Rep. No. 96-256, at 9 (1980), reprinted in 1980
U.S.C.C.A.N. 141, 149. The legislative history shows that
Congress saw asylees and refugees as having similar status
under the law, indicating that those granted asylum were to be
“placed into a conditional admission status equivalent in most
respects to that provided under current law to refugees.” Id.
(emphasis added).

[9] Nothing in the legislative history indicates that asylum
status was so distinct that it conferred an exemption from stat-
utes governing the conduct of other aliens admitted to the
United States, or otherwise provided additional relief from
removal that was unavailable to refugees. See Kaganovich,
470 F.3d at 898 (agreeing with BIA’s determination that
INA’s refugee provisions could not be read to immunize refu-
gees from the INA’s removal provision). Consistent with this
history, we decline to read section 209(b) as providing asylees
who have acquired LPR status with additional avenues for
avoiding removal that are otherwise foreclosed to similarly
situated refugees.

[10] In sum, at the time of his request for “re-adjustment”
of status, Robleto retained his LPR status. See 8 C.F.R.
§ 1001.1(p). Section 209(b), by its plain language, contem-
plates an asylee’s adjustment of status to LPR, and does not
extend relief to aliens who have already acquired LPR status.
This natural reading of section 209(b) is consistent with deci-
sions of the Seventh and Fourth Circuits in the analogous con-
text of refugees who have previously adjusted status, and with
our prior decision in Kaganovich. Because petitioner
advances no other theory of relief from removal, we deny his
petition and hold that an alien who acquired lawful permanent
resident status based on a prior grant of asylum may not “re-
apply” for LPR status under section 209 in order to avoid
removal.
 ROBLETO-PASTORA v. HOLDER 803
D. Due Process Claim

Finally, petitioner asserts that the IJ denied him due process
by denying his request for a continuance to obtain his immi-
gration records.

[11] “[A]n alien who faces deportation is entitled to a full
and fair hearing of his claims and a reasonable opportunity to
present evidence on his behalf.” Colmenar v. INS, 210 F.3d
967, 971 (9th Cir. 2000); see also Cano-Merida v. INS, 311
F.3d 960, 964 (9th Cir. 2002). In order to show a due process
violation, an applicant must show prejudice. Cano-Merida,
311 F.3d at 965. Prejudice is shown where the violation
potentially affected the outcome of the proceedings. Id.

[12] Petitioner fails to establish prejudice. Although the IJ
conducted the removal proceedings in the absence of petition-
er’s full immigration file, petitioner was able to present his
claims for relief without it. Moreover, the BIA had the full
record before it when examining petitioner’s appeal. As set
forth above, nothing in petitioner’s file changes the fact that
he is currently ineligible for asylum. Moreover, even after
examining petitioner’s full immigration file, the BIA deter-
mined that petitioner failed to establish that his prior grant of
asylum was based on actual, past persecution or that he was
likely to suffer persecution upon return to Nicaragua. We find
that the record supports this view. Accordingly, petitioner has
failed to show that a continuance would have affected the out-
come of the proceedings.

III.

[13] Based on the foregoing, we conclude that the BIA did
not err in denying petitioner’s applications for asylum and
withholding of removal under the INA and the CAT. Further,
we conclude that petitioner retained his status as a lawful per-
manent resident during the removal proceedings, and there-
fore was not eligible to seek relief from removal under section
804 ROBLETO-PASTORA v. HOLDER
209(b) of the INA in connection with a waiver of inadmissi-
bility under section 209(c). Finally, we conclude that the
denial of petitioner’s request for a continuance does not
amount to a due process violation. Accordingly, the petitions
for review are DENIED.