Jose Rodriguez-Soriano v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE LUIS RODRIGUEZ-SORIANO, No. 15-73444

Petitioner, Agency No. A074-389-154

v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

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

Submitted November 15, 2017**

Before: CANBY, TROTT, and GRABER, Circuit Judges.

Jose Luis Rodriguez-Soriano, a native and citizen of El Salvador, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’s (“IJ”) decision denying his applications for

Temporary Protected Status and a waiver under 8 U.S.C. § 1254a(c)(2)(A). Our

*
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).
jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law,

including due process claims, and review for abuse of discretion the denial of a

motion to remand. Vargas-Hernandez v. Gonzales, 497 F.3d 919, 921, 923 (9th

Cir. 2007). We deny in part and dismiss in part the petition for review.

We reject Rodriguez-Soriano’s contention that the BIA applied an incorrect

legal standard in its denial of his application for a waiver of inadmissibility under 8

U.S.C. § 1254a(c)(2)(A). See Rashtabadi v. INS, 23 F.3d 1562, 1570 (9th Cir.

1994) (“One general, analytical approach governs all decisions on whether to grant

discretionary relief.” (citing Matter of Marin, 16 I. & N. Dec. 581, 586 (BIA

1978)); see also Mendez-Castro v. Mukasey, 552 F.3d 975, 980 (9th Cir. 2009) (the

agency applies the correct legal standard where it expressly cites and applies

relevant case law in rendering its decision).

The BIA did not abuse its discretion or violate due process in denying

Rodriguez-Soriano’s motion to remand, where he had the opportunity to present to

the IJ evidence on any matter relevant to discretion. See 8 C.F.R. § 1003.2(c)(1)

(“A motion to reopen proceedings shall not be granted unless it appears to the

Board that evidence sought to be offered is material and was not available and

could not have been discovered or presented at the former hearing[.]”); Shin v.

Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (a motion to remand must show that

“if proceedings were reopened, the new evidence would likely change the result in

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the case” (citation omitted)); Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)

(due process claims require showing that proceedings were “so fundamentally

unfair that the alien was prevented from reasonably presenting his case”) (internal

quotation marks and citation omitted)). We reject Rodriguez-Soriano’s contentions

that the BIA engaged in speculation or impermissible factfinding as unsupported

by the record. See 8 C.F.R. § 1003.1(d)(3)(ii) (“The Board may review questions

of law, discretion, and judgment and all other issues in appeals from decisions of

immigration judges de novo.”).

Rodriguez-Soriano’s contention that the BIA erred in assessing his

credibility under the REAL ID Act fails because the BIA concluded that the IJ’s

adverse credibility determination would not have been clearly erroneous even

under pre-REAL ID Act standards.

We lack jurisdiction to consider Rodriguez-Soriano’s remaining

unexhausted contentions regarding the agency’s adverse credibility determination.

See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks

jurisdiction to consider legal claims not presented in an alien’s administrative

proceedings before the agency).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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