NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

Nos. 17-2936 & 18-2579 _______________

YANET CANDELARIO SALAZAR, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _______________

On Petition for Review of Final Orders of the Board of Immigration Appeals (No. A208-931-864) Immigration Judge: Mirlande Tadal _______________

Submitted Under Third Circuit L.A.R. 34.1(a): January 26, 2021

Before: RESTREPO, BIBAS, and PORTER, Circuit Judges.

(Opinion Filed: March 17, 2021) _______________

OPINION* _______________

PORTER, Circuit Judge.

Yanet Candelario Salazar, a native of Cuba and citizen of Canada, petitions for

review of two decisions of the Board of Immigration Appeals. In the Board’s first

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. decision, it (1) dismissed her appeal of the Immigration Judge’s (“IJ”) denial of her

applications for asylum, withholding of removal, and protection under the Convention

Against Torture (CAT); and (2) rejected her request to remand the case to the IJ for

further proceedings. In the Board’s second decision, it denied her motion to reopen.

Candelario Salazar has failed to properly challenge the agency’s dismissal of her

applications for asylum, withholding of removal, and CAT protection.1 So the gravamen

of her argument is that the Board abused its discretion—first when it denied her request

for remand, and later when it denied her motion to reopen. For the reasons stated below,

the Board did not abuse its discretion, so we will deny both petitions for review.

I2

Beginning with Candelario Salazar’s first petition, the Board did not abuse its

discretion in denying her request for remand for three reasons: (1) the IJ lacked

1 Candelario Salazar fails to properly challenge the agency’s denial of her applications for asylum and withholding of removal because she does not contest the agency’s finding that she failed to establish that the Canadian government is unable or unwilling to protect her. See Khan v. Att’y Gen.,

, 495 n.4 (3d Cir. 2012). And we may not review the IJ’s denial of her CAT claim because she failed to challenge that denial before the Board. See Bin Lin v. Att’y Gen.,

, 120–21 (3d Cir. 2008). 2 We have jurisdiction under

(a). “Where, as here, [the Board’s] opinion directly states that [the Board] is deferring to the IJ, or invokes specific aspects of the IJ’s analysis and factfinding in support of [the Board’s] conclusions, we review both decisions.” Sunuwar v. Att’y Gen., No. 20-2091, --- F.3d ---, ---,

, at *4 (3d Cir. Feb. 25, 2021) (internal quotation marks omitted). We review legal conclusions de novo, Huang v. Att’y Gen.,

(3d Cir. 2010), and factual findings for substantial evidence, Guo v. Ashcroft,

(3d Cir. 2004). That means “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,”

(b)(4)(B). See Guo,

. We review denials of motions to remand and reopen for abuse of discretion. Huang,

. And we will not disturb the Board’s discretionary denials unless they are

2 jurisdiction to review her adjustment-of-status claims; (2) she failed to meet the

requirements for an ineffective-assistance-of-counsel claim; and (3) the IJ’s denial of her

fifth motion for a continuance was not an abuse of discretion.

A

Candelario Salazar asked the Board to remand her case for the IJ to consider her

adjustment-of-status application under the Cuban Adjustment Act. The Board properly

denied her request for remand because the IJ lacked jurisdiction over her adjustment-of-

status application. If an alien, like Candelario Salazar, is not admitted or paroled upon

entry to the United States, an IJ does not have jurisdiction over her adjustment-of-status

application unless the Department of Homeland Security (DHS) placed the alien in

removal proceedings pursuant to a grant of advance parole.

(a)(1)(ii)(D)

(2021). Though Candelario Salazar claims that she was (or should have been) paroled

into the United States, there is no evidence in the record supporting that claim. Rather,

the record evidence indicates that, upon her return, she was an inadmissible arriving alien

who did not receive a grant of advance parole prior to her departure from the United

States.

She did not obtain advance parole before she left the United States to visit

Panama. And when she tried to return to the United States three days later, U.S. Customs

and Border Patrol agents detained her, charged her with being an inadmissible arriving

“arbitrary, irrational, or contrary to law.” Guo,

(quoting Tipu v. INS,

(3d Cir. 1994)).

3 alien, and did not parole her into the United States. Her attorney admitted as much before

the IJ, saying that she “wasn’t admitted. She’s classified as an arriving alien.” A.R. 498.

The IJ thus lacked jurisdiction over Candelario Salazar’s adjustment-of-status

application, and the Board did not abuse its discretion by denying her request for remand.

B

The Board also properly declined to remand Candelario Salazar’s proceedings

based on her ineffective-assistance-of-counsel claim. She claimed that her former counsel

was ineffective because he did not timely inform her of her eligibility for special-rule

cancellation of removal under 8 U.S.C. § 1229b, but she failed to meet the procedural

requirements for making an ineffective-assistance-of-counsel claim.

The Board has long held that an alien alleging ineffective assistance of counsel

must provide: (1) an affidavit explaining her agreement with prior counsel regarding her

legal representation; (2) evidence she gave prior counsel an opportunity to respond to the

ineffective-assistance-of-counsel allegation; and (3) either a showing that a complaint

against prior counsel has been filed with the proper disciplinary authorities or an

explanation of the reasons why not. Matter of Lozada,

(BIA

1988). We have held that the Board’s enforcement of the three-prong Lozada test

generally is not an abuse of its wide-ranging discretion. Xu Yong Lu v. Ashcroft,

(3d Cir. 2001). And we have previously upheld the Board’s denial of a motion

to reopen “for failure to comply with the procedural requirements of Lozada.” Mudric v.

Att’y Gen.,

(3d Cir. 2006).

4 Candelario Salazar’s brief to the Board did not meet any of the Lozada

requirements. Her brief provided general allegations about her former counsel’s failures

but failed to include any of the documents or evidence required by Lozada. The Board

thus did not abuse its discretion when it declined to remand proceedings based on her

ineffective-assistance-of-counsel claim.

C

Lastly, Candelario Salazar asked the Board to remand her case to the IJ on the

ground that the IJ improperly denied her request for a continuance to file an application

for cancellation of removal. But Candelario Salazar never made such a request to the IJ,

so the Board properly rejected her request for a remand.

Candelario Salazar claimed that the IJ denied her request for “a continuance to

allow [her] to file for cancellation of removal.” A.R. 403. But she never notified the IJ of

her intent to file an application for cancelation of removal. In fact, during the asylum

hearing, the IJ observed, “[s]he’s not seeking cancellation of removal,” and her attorney

affirmed the observation, replying, “[n]o.” A.R. 501.

Candelario Salazar also argues that the IJ’s denial of her continuance request made

her new counsel unable to prepare a brief in support of her asylum claims. This argument

fails because she raises it for the first time in her brief to this Court. We “may review a

final order of removal only if . . . the alien has exhausted all administrative remedies

available to the alien as of right.”

(d)(1). She failed to exhaust this issue

because she did not raise it before the Board. See Bin Lin v. Att’y Gen.,

,

120–21 (3d Cir. 2008). We thus lack the jurisdiction to review it now. See

5 II

Turning to Candelario Salazar’s second petition, the Board did not abuse its

discretion in denying her request to reopen because (1) each of her claims was untimely,

except for her request for adjustment of status under the Violence Against Women Act

(“VAWA”); and (2) she was not (and is not) eligible for adjustment of status under

VAWA.

A

As the Board noted, Candelario Salazar’s motion to reopen was untimely. An alien

may file one motion to reopen no later than ninety days after the agency rendered the

final administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C)(i);

(c)(2)

(2021). The Board issued its decision on August 30, 2017, but Candelario Salazar did not

file her motion to reopen until December 13, 2017. Her motion to reopen was thus

untimely and properly rejected by the Board. But her adjustment-of-status claim under

VAWA was not untimely because the ninety-day filing deadline does not apply to aliens

who self-petitioned with U.S. Citizenship and Immigration Services. 8 U.S.C.

§ 1229a(c)(7)(C)(iv).

B

The Board properly rejected Candelario Salazar’s motion to reopen because she

was not (and is not) eligible for adjustment of status under VAWA. Because she is not

currently the spouse of a U.S. citizen, the only way for her to be eligible for adjustment of

status under VAWA is by proving that she was “a bona fide spouse of a United States

citizen within the past 2 years.”

(a)(1)(A)(iii)(II)(aa)(CC). She argues that

6 she should be eligible for adjustment of status under VAWA because her common-law

marriage to Douglas Roche—a U.S. citizen—made her a bona fide spouse under the

statute. But regardless of whether her alleged common-law marriage to Roche made her a

bona fide spouse, she is ineligible for adjustment of status because her common-law

marriage did not exist “within the past 2 years.”

She testified that she lived with Roche in a common-law relationship from early

2007 to February 5, 2011. Then, on May 1, 2013, a Canadian court ordered Roche to pay

alimony and child support to Candelario Salazar. She left Canada for the United States

later that May. So when she filed her adjustment-of-status application in September 2017,

she was not a bona fide spouse of a U.S. citizen “within the past two years.”

Any

spousal relationship with Roche ended on or before May 1, 2013. Thus, the Board did not

abuse its discretion in denying her motion to reopen.

* * *

We will deny both petitions for review.

7