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Segura v. Holder

May 26, 2010

ROGELIO AVALOS SEGURA, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A092-184-494.

The opinion of the court was delivered by: Tallman, Circuit Judge

FOR PUBLICATION

Submitted May 7, 2010*fn1 -- Pasadena, California.

Before: Diarmuid F. O'Scannlain and Richard C. Tallman, Circuit Judges, and Frederic Block, District Judge.*fn2

OPINION

Petitioner Rogelio Avalos Segura ("Avalos") petitions for review of the decision of the Board of Immigration Appeals ("BIA") finding him ineligible for relief under § 212(c) of the Immigration and Nationality Act.*fn3 The BIA reasoned that Avalos was ineligible for the requested relief because he was not lawfully admitted for permanent residence. We dismiss in part and deny in part Avalos's petition for review.

I.

Avalos, a native and citizen of Mexico, entered the United States without inspection on May 2, 1980. He received temporary resident status on July 14, 1988. In late 1989, Avalos pleaded guilty in California state court to a charge of possession or purchase of a controlled substance, a felony, and was sentenced to 180 days incarceration and 36 months probation. Notwithstanding this felony conviction, Avalos applied for and obtained lawful permanent resident status on November 2, 1992. There is no indication that the Immigration and Naturalization Service knew of Avalos's conviction at the time it approved his application for an adjustment of status.

After vacationing for a short time in Mexico, Avalos attempted to re-enter the United States in October 2003. The Bureau of Customs and Border Patrol ("BCBP") referred Avalos to secondary inspection, and Avalos admitted he was convicted of a controlled substance charge in 1989. The BCBP paroled Avalos into the United States and ordered him to report for a deferred inspection the next month. At the deferred inspection, the BCBP issued a Notice to Appear charging Avalos with removability for violation of a controlled substance law, 8 U.S.C. § 1182(a)(2)(A)(i)(II), and for being a suspected controlled substance trafficker, id. § 1182(a)(2)(C).

Avalos appeared before an immigration judge ("IJ") and, through counsel, conceded the charge of removability for a controlled substance conviction, but challenged the charge of removability for being a controlled substance trafficker. He then requested relief under § 212(c). The IJ granted the Government's motion to pretermit Avalos's application for relief, finding that Avalos had not been "lawfully admitted for permanent residence" and that § 212(c) did not apply because he was not a permanent resident at the time he entered his guilty plea.*fn4

After the IJ denied Avalos's request, he filed two applications for cancellation of removal. One application sought cancellation of removal for permanent residents under 8 U.S.C. § 1229b(a), and the other requested cancellation of removal for nonpermanent residents as authorized by § 1229b(b). The IJ pretermitted the application for cancellation of removal for a permanent resident because Avalos was never lawfully admitted for permanent residence and he did not meet the continuous physical residence requirement. The IJ then denied Avalos's application for cancellation of removal for a nonpermanent resident after finding he did not have the requisite continuous physical presence and he had been convicted of a controlled substance offense.

Avalos appealed to the BIA arguing that the IJ erred in finding him ineligible for § 212(c) relief. He also alleged a violation of due process stemming from the Government's failure to conduct a rescission hearing addressing his residency status. However, Avalos did not challenge the IJ's decision relating to his applications for cancellation of removal. The BIA conducted its own review of Avalos's claims and dismissed his appeal. The BIA affirmed the IJ's finding that Avalos was never lawfully admitted as a permanent resident and concluded that Avalos had no due process rights in his residency status because an alien mistakenly granted lawful permanent resident status is not lawfully admitted. Avalos filed a timely petition for review challenging the authority of the IJ to make a determination of his residency status and the BIA's finding that he was ineligible for § 212(c) relief.*fn5

II.

Avalos first argues that an IJ has no authority to determine whether an alien is a lawful permanent resident. We do not address the merits of Avalos's challenge, however, because we lack subject-matter jurisdiction over this issue. We can exercise jurisdiction over a claim only if the alien has "exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004). Accordingly, we are ...


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