Veronica Canar Yanez v. Eric Holder, Jr.

U.S. Court of Appeals for the Ninth Circuit
Veronica Canar Yanez v. Eric Holder, Jr., 586 F. App'x 364 (9th Cir. 2014)

Veronica Canar Yanez v. Eric Holder, Jr.

Opinion

MEMORANDUM **

veronica Cañar Yanez, a native and citizen of Ecuador, petitions for review of an order from the Board of Immigration Appeals (BIA) denying her application for adjustment of status, and an Immigration *365 Judge’s denial of her request for voluntary departure. We have jurisdiction under 8 U.S.C. § 1252(d) to consider Cañar Ya-nez’s administratively exhausted claims. We dismiss in part and deny in part Cañar Yanez’s petition. 1

1. To establish eligibility for adjustment of status an alien must prove she “is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.” .8 U.S.C. § 1255(a)(2) (eligibility); see also 8 U.S.C. § 1229a(e)(4)(A)(i) (burden of proof). Here, evidence indicates that Cañar Yanez is permanently inadmissible for having “falsely represented ... herself to be a citizen of the United States.” 8 U.S.C. § 1182(a)(6)(C)(ii)(I). Cañar Yanez argues she did not falsely represent herself to be a citizen because she could have been claiming to be a non-citizen national by applying for a passport using a Puerto Rican birth certificate. This argument im-permissibly shifts the burden of proof. See 8 C.F.R. § 1240.8(d) (“If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.”). Further, persons born in Puerto Rico are United States citizens. 8 U.S.C. § 1402. By claiming that she and both her parents were born in Puerto Rico, Cañar Yanez could not have been claiming to be a non-citizen national. Cañar Yanez has not met her burden of proving that' she is admissible to the United States, and she is therefore ineligible for adjustment of status.

2. Cañar Yanez claims the BIA violated her right to due process by failing to consider her argument that she did not sign the passport application. This claim fails because Cañar Yanez has not shown that she did not sign the application, or that she was denied due process or prejudiced by any such denial. See Ram v. Mukasey, 529 F.3d 1238, 1241 (9th Cir. 2008). The BIA adequately explained that Cañar Yanez had the burden of proving her passport application did not include a claim to United States citizenship and that she failed to meet her burden. Even assuming Cañar Yanez did not sign the passport application, she admitted to completing a passport application indicating she was born in Puerto Rico, and to purchasing a counterfeit Puerto Rican birth certificate. These admissions are sufficient to show that she falsely represented herself to be a citizen whether or not she signed the passport application.

3. Because Cañar Yanez did not argue before the BIA that her passport application should not be considered as evidence, we lack jurisdiction to consider that claim. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (concluding that administrative exhaustion applies to due process claims based on correctable procedural errors).

4. We also lack jurisdiction to review denial of Cañar Yanez’s application for voluntary departure because she failed to exhaust this claim by raising it before the BIA. See 8 U.S.C. § 1252(d)(1).

PETITION DISMISSED IN PART AND DENIED IN PART.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

1

. The parties are familiar with the facts, so we will not recount them here.

Reference

Full Case Name
Veronica Paulina CANAR YANEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent
Status
Unpublished