Zamorano v. Garland
| Decision Date | 25 June 2021 |
| Docket Number | 19-72893,A207-281-621 |
| Parties | Victor Luis Angeles Zamorano, Petitioner, v. Merrick B. Garland, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Argued and Submitted April 13, 2021 Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A207-281-62
Joseph V. Bui (argued) and Robert A. Olson, Greines Martin Stein & Richland LLP, Los Angeles, California, for Petitioner.
Andrew Oliveria (argued), Trial Attorney; Justin Markel, Senior Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington D.C.; for Respondent.
Before: Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit Judges, and Kathryn H. Vratil, [*] District Judge.
Granting in part, denying in part, and dismissing in part Victor Luis Angeles Zamorano's petition for review of a decision of the Board of Immigration Appeals dismissing his appeal of an immigration judge's denial of voluntary departure, and remanding, the panel held that the IJ erred by failing to evaluate the factors weighing in favor of granting Zamorano voluntary departure.
As an initial matter, the panel noted that although it lacked jurisdiction to reweigh the agency's exercise of discretion in denying voluntary departure, it did have jurisdiction to review constitutional claims or questions of law in the denial of such relief, including whether the Board and IJ failed to consider the appropriate factors or relied on improper evidence. The panel concluded that there was no indication that the IJ implicitly considered any favorable factors in making its discretionary voluntary departure determination. The panel therefore remanded for further proceedings.
The panel rejected Zamorano's argument that the IJ violated 8 C.F.R. § 1240.11 by failing to advise him that he could apply for asylum and withholding of removal, by failing to inform him of his apparent eligibility to apply for other immigration benefits, including U nonimmigrant status, and by failing to develop the record as to these claims. The panel explained that the duty to advise an alien of apparent eligibility to apply for benefits under Title 8, Chapter V of the Code of Federal Regulations, is triggered whenever the facts before the IJ raise a "reasonable possibility that the petitioner may be eligible" for such relief, and that the failure to advise can be excused when the petitioner's eligibility for relief is not "plausible."
The panel concluded that the IJ's duty to advise Zamorano about his apparent eligibility for asylum and related relief was not triggered, where Zamorano stated that his only fear related to starting a new life in a new country. The panel also held that the IJ did not violate his duty under § 1240.11(a)(2) by failing to advise Zamorano of his apparent eligibility for adjustment of status through U nonimmigrant status, because § 1240.11(a)(2) applies only to benefits under Chapter V, and U nonimmigrant status is governed by Chapter I.
Because Zamorano failed to exhaust his claim regarding the IJ's duty to advise him of his apparent eligibility for Deferred Action for Childhood Arrivals (DACA) relief, and the claim involved a procedural challenge, rather than a constitutional challenge, the panel concluded that it lacked jurisdiction to consider it. The panel rejected Zamorano's argument that exhaustion should be excused by analogy to this court's exception to the exhaustion requirement for collateral challenges to underlying removal orders in the context of 8 U.S.C. § 1326. As an initial matter, the panel observed that the Supreme Court's decision in United States v Palomar-Santiago, 141 S.Ct. 1615 (2021), cast doubt on the continued vitality of the exhaustion excusal rule under § 1326(d). The panel wrote that it need not resolve the effect of Palomar-Santiago in the § 1326(d) context, because the judge-made exception to §1326(d)(1) does not apply to the jurisdictional exhaustion requirement governing final orders of removal under 8 U.S.C. § 1252(d)(1).
Turning to Zamorano's statutory and constitutional claims, the panel held that the IJ did not violate his duty to sufficiently explore for all facts relevant to asylum withholding of removal, and U nonimmigrant status, and to inform Zamorano of what evidence he needed to establish these claims. The panel explained that the IJ asked pertinent questions directed to determining whether Zamorano was eligible for asylum and withholding of removal, but once Zamorano testified that the only reason he feared returning to Mexico was that he didn't "know how to start a life in a new country," there was nothing left for the IJ to do, because Zamorano's own testimony established there was no plausible basis for relief.
Likewise, the panel explained that Zamorano did not indicate he was seeking possible U nonimmigrant status and nothing in the proceedings would have prompted the IJ to develop more facts on this issue. Moreover, the panel noted that any error in failing to ask additional probing questions concerning potential U nonimmigrant status was harmless, because neither the Board nor IJs have authority over U visa petitions, and no action of the IJ prevented Zamorano from petitioning for such status before United States Citizenship and Immigration Services, with whom sole authority rests.
The panel held that Zamorano failed to establish prejudice from the Board's failure to address his argument on appeal that he was a victim of domestic violence or was eligible for U nonimmigrant relief through his mother, because he never hinted to the IJ that he was also a victim of domestic violence or was seeking U nonimmigrant status. The panel further noted that the Board may properly refuse to address arguments raised for the first time on appeal.
Victor Luis Angeles Zamorano, a native and citizen of Mexico, seeks review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal from a decision of the immigration judge (IJ) that denied his application for voluntary departure. Because the IJ failed to evaluate the factors weighing in favor of granting Zamorano voluntary departure, we grant the petition and remand to the BIA. We otherwise reject Zamorano's arguments that the agency erred in failing to develop other bases for relief.
In May 2019, Zamorano was served with a notice to appear (NTA) which charged him as removable based on his presence in the United States without admission or parole.
At the initial removal proceeding, the IJ explained to Zamorano that "the purpose of these proceedings is to determine whether you should be removed from or allowed to remain in the United States." The IJ informed Zamorano that he had the right to be represented by an attorney of his choice, at no expense to the government, and indicated that Zamorano had been provided an appeal rights form and a legal aid list of local individuals and organizations. The IJ further explained that "[i]f you do not find an attorney or choose not to have an attorney, then you're required to represent yourself, plead to the allegations and charges against you as well as prepare any potential applications for relief." Finally, the IJ informed Zamorano that if he did not have an attorney at the next hearing, he should come to the hearing prepared to represent himself.
At his third hearing, after Zamorano did not obtain an attorney despite two continuances, Zamorano stated that he was ready to proceed and to represent himself. The IJ then advised Zamorano of his rights in addition to his right to have an attorney. The IJ explained that he had "the right to present documents or testimony to support your case"; "the right to object to Government evidence and to question witnesses they present"; and "the right to appeal any decision" that the IJ made in his case to the BIA "within 30 days of that decision." Zamorano stated that he understood those rights.
The IJ proceeded through the allegations in the NTA. Zamorano admitted that he was not a citizen or national of the United States, was a native and citizen of Mexico, and entered the United States illegally "at an unknown place on an unknown date." Zamorano also acknowledged that he could be removed based on these allegations.
The IJ then turned to a series of questions regarding potential bases for relief. The IJ asked when Zamorano first entered the United States. Zamorano responded that he entered around the year 2000 as a third grader. The IJ then asked whether Zamorano had ever left the United States, and Zamorano explained that he had not.
The IJ then turned to questions regarding whether Zamorano had relatives in the United States who might assist him in obtaining relief such as cancellation of removal or adjustment of status. He asked whether Zamorano was married, whether Zamorano had children, and whether Zamorano had parents or grandparents in the United States with lawful status. Zamorano responded that he was not married and that he had no children.[1] He also responded that neither his parents nor his grandparents had lawful status, but he noted that his mother was "processing her residency" in the United States. The IJ inquired how Zamorano's mother was pursuing residency, and Zamorano responded that she had "a case of domestic violence." The IJ followed up, "So she's seeking a U-visa?"[2] Zamorano said, "Yeah." The IJ then asked whether anyone had filed a petition for Zamorano "seeking [his] adjustment to a lawful permanent resident." Zamorano said no.
The IJ then turned to the topic of Mexico, Zamorano's designated country of removal. This exchange followed:
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