FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT VICTOR LUIS ANGELES ZAMORANO, No. 19-72893 Petitioner, Agency No. v. A207-281-621 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 13, 2021 Pasadena, California Filed June 25, 2021 Before: Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit Judges, and Kathryn H. Vratil,* District Judge. Opinion by Judge Ikuta * The Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation. 2 ZAMORANO V. GARLAND SUMMARY** Immigration 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 ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ZAMORANO V. GARLAND 3 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 …
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