Arnulfo Damian-Pascual v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 11 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ARNULFO DAMIAN-PASCUAL, aka No. 15-72812 Arnulfo Damian Pascual, Agency No. 206-548-073 Petitioner, v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 7, 2018** Portland, Oregon Before: GRABER and M. SMITH, Circuit Judges, and HELLERSTEIN,*** District Judge. * 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). *** The Honorable Alvin K. Hellerstein, United States District Judge for the Southern District of New York, sitting by designation. Arnulfo Damian-Pascual, a citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal from the decision of an immigration judge (“IJ”) denying cancellation of removal, asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252(a)(1). We review questions of law de novo and the agency’s factual findings for substantial evidence. Zetino v. Holder, 622 F.3d 1007, 1011−12 (9th Cir. 2010). When the BIA conducts its own review of the evidence and law, “our review is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.” Antonyan v. Holder, 642 F.3d 1250, 1254 (9th Cir. 2011). Here, the BIA conducted its own review of the evidence and law; our review is therefore limited to the BIA’s decision. 1. Petitioner challenges the denial of his application for cancellation of removal on the ground that the BIA erred by finding that he failed to meet the eligibility requirements of 8 U.S.C. § 1229b(b). But the BIA also denied relief in the exercise of its discretion. We lack jurisdiction over that decision, 8 U.S.C. § 1252(a)(2)(B)(i), which is an independent, sufficient, and alternative ground for the BIA’s denial of relief. Accordingly, we need not address Petitioner’s challenge to the adverse eligibility finding. There is no legal support for Petitioner’s arguments that the BIA cannot make an alternative, independent discretionary 2 decision if its motive is to insulate its conclusion from judicial review (assuming, but not deciding, that the BIA had such a motive here) or that we must consider the discretionary decision to be subsidiary. 2. As to the application for asylum, substantial evidence supports the BIA’s finding that Petitioner’s 2015 application for asylum was untimely, received more than a year after petitioner entered the United States (in 2000). See 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(2). “We may review the agency’s application of the changed . . . circumstances exception to undisputed facts as it relates to the one-year filing rule.” Vahora v. Holder, 641 F.3d 1038, 1042 (9th Cir. 2011) (ellipsis in original) (internal quotation marks omitted). Petitioner cannot argue ...

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