                   Case: 12-11062            Date Filed: 10/31/2012   Page: 1 of 10

                                                                       [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-11062
                                        Non-Argument Calendar
                                      ________________________

                                           Agency No. A077-912-931




MIGUEL EDUARDO LARREA,

llllllllllllllllllllllllllllllllllllllll                                              Petitioner,

                                                   versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                              Respondent.

                                     ________________________

                               Petition for Review of a Decision of the
                                    Board of Immigration Appeals
                                    ________________________

                                              (October 31, 2012)

Before HULL, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

         Miguel Eduardo Larrea seeks review of the Board of Immigration Appeals’
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(BIA’s) dismissal of his appeal from an Immigration Judge’s (IJ’s) denial of his

adjustment-of-status application and order of removal. We dismiss the petition in

part and deny it in part.

                                         I.

      Larrea, a native and citizen of Ecuador, entered the United States on May

23, 1999, as a non-immigrant visitor with authorization to remain in the country

until November 22 of that year. On November 11, Larrea filed an I-485

Application to Register Permanent Resident or Adjust Status. Also that day, Zoila

Maria Villavicencio, who was then Larrea’s wife, filed an I-130 Petition for Alien

Relative — a visa petition — on Larrea’s behalf.

      The former Immigration and Naturalization Service (INS) interviewed

Larrea and Villavicencio about these submissions in July 2000. Then, in April

2001, the INS issued a Notice of Intent to Deny the visa petition based on Larrea

and Villavicencio’s failure to provide clear and convincing evidence that their

marriage was bona fide. The INS gave Villavicencio an opportunity to rebut this

finding. Instead, Villavicencio told the INS that she and Larrea were separated

and that she intended to divorce him. Consequently, in August and September

2001, the INS denied Larrea’s I-485 application and the I-130 petition

Villavicencio filed on his behalf. Larrea and Villavicencio divorced in 2002.

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       In March 2009, Larrea filed a second I-485 application. This time, his

daughter, a United States citizen, filed an I-130 petition on his behalf. In June

2009, the Department of Homeland Security’s (DHS’s) Citizenship and

Immigration Service (CIS), which replaced INS, sent Larrea a notification that his

I-485 application had been approved.1 Just two days later, however, CIS issued a

Notice of Intent to Deny the I-130 petition based upon the CIS District Director’s

determination that the Immigration and Nationality Act (INA) § 204(c), 8 U.S.C.

§ 1154(c), applied to Larrea’s case. That section provides:

       [N]o petition shall be approved if . . . the alien has previously been
       accorded, or has sought to be accorded, an immediate relative or
       preference status as the spouse of a citizen of the United States . . . ,
       by reason of a marriage determined by the Attorney General to have
       been entered into for the purpose of evading the immigration laws.

INA § 204(c), 8 U.S.C. § 1154(c). CIS indicated that, based on INS’s findings in

connection with the 1999 visa petition, Larrea married Villavicencio solely for the

purpose of obtaining immigration benefits. CIS gave Larrea’s daughter an

opportunity to respond to the notice. Although Larrea’s daughter responded with

a statement from Villavicencio that her marriage to Larrea was sincere, CIS denied



       1
         Larrea argued before the IJ and BIA that this notification constituted an approval, and
both rejected his contention. Larrea does not, however, assert this argument in his petition before
this court. He has therefore abandoned the issue. See Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005).

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the I-130 petition on August 25, 2009, based on INA § 204(c). CIS then denied

Larrea’s I-485 application based on the denial of his I-130 petition. The record

does not indicate that Larrea or his daughter appealed either of these decisions.

       The next day, DHS served Larrea with a Notice to Appear, charging him

with removability under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for

remaining in the United States longer than permitted.2 At a hearing before an IJ,

Larrea, through counsel, conceded removability under INA § 237(a)(1)(B). But he

argued that he was entitled to relief from removal based on his application for

adjustment of status. He denied the factual findings made in connection with the

denial of the first I-130 visa petition filed on his behalf and, as a result, argued that

he did not fall within the purview of INA § 204(c) for purposes of the second

petition. Larrea’s counsel stated that Larrea sought only adjustment of status

based on the I-130 petition his daughter filed and no other form of relief from

removal. The IJ warned that Larrea was probably not entitled to adjustment of

status, but he took the matter under advisement.

       After the hearing, the IJ issued a written decision finding Larrea removable,



       2
         DHS also charged Larrea with removability under INA § 237(a)(1)(G)(ii), 8 U.S.C. §
1227(a)(1)(G)(ii), for committing marriage fraud. And, although the IJ found Larrea removable
under this section, on appeal the BIA reversed this finding. It is therefore immaterial to Larrea’s
instant petition.

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denying adjustment of status based on INA § 204(c), and ordering his removal to

Ecuador. The IJ found that Larrea was ineligible for adjustment of status because

the I-130 petition had not been approved and an approved I-130 petition is a

precondition for approval of an I-485 application for adjustment of status. The IJ

relied on the District Director’s determination that INA § 204(c) barred approval

of Larrea’s I-130 petition.

       Larrea appealed to the BIA, arguing that the IJ erred in declining to give

him an opportunity to rebut DHS’s evidence and to apply for any other relief

available. The BIA sustained Larrea’s removability under INA § 237(a)(1)(B),

which Larrea did not contest.3 And the BIA confirmed that Larrea was ineligible

for adjustment of status because the District Director’s INA § 204(c)

determination barred approval of the I-130 visa petition and, without an immigrant

visa, CIS could not approve Larrea’s I-485 application. Finally, the BIA

concluded that Larrea received ample opportunity to present evidence and had

affirmatively waived other available forms of relief during his hearing before the

IJ.



       3
         Larrea contests the IJ’s removability finding under INA § 237(a)(1)(B) for the first time
on appeal. Because he never contested the finding before the BIA, we lack jurisdiction to review
the claim, and we dismiss this portion of Larrea’s petition. See Amaya-Artunduaga v. U.S. Att’y
Gen., 463 F.3d 1247, 1251 (11th Cir. 2006).

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      This is Larrea’s petition for review of the BIA’s decision dismissing his

appeal.

                                         II.

      When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA did not expressly adopt the IJ’s

decision. We review the BIA’s legal determinations de novo, and review

“administrative fact findings under the highly deferential substantial evidence

test.” Rivera v. U.S. Att’y Gen., 487 F.3d 815, 820 (11th Cir. 2007) (internal

quotation marks omitted). We must affirm the BIA’s decision if it is “supported

by reasonable, substantial, and probative evidence on the record considered as a

whole.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (internal

quotation marks omitted). To reverse a factual finding by the BIA, we must find

that “the record compels a reversal; the mere fact that the record may support a

contrary conclusion is not enough to justify a reversal of the administrative

findings.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).

                                         III.

A.    The BIA’s removability finding

      Larrea contends that the BIA erred in finding him removable. He first

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argues that the BIA’s “policy in deportation cases” is arbitrary and capricious

under the Supreme Court’s decision in Judulang v. Holder, 132 S. Ct. 476 (2011).

But Larrea points to no policy in particular that he claims is arbitrary and

capricious. Instead, he seems to argue that the BIA’s reliance in this case on CIS’s

earlier findings was erroneous. Thus, Judulang is inapposite. And, as Larrea

conceded before the BIA and again in his appellate brief, he remained in the

United States beyond his authorization to do so, which makes him removable

under INA § 237(a)(1)(B). Larrea accordingly has not shown that the BIA erred in

finding him removable. Adefemi, 386 F.3d at 1027.

B.    Larrea’s application for adjustment of status

      Larrea next argues that the BIA should have remanded his case to the IJ to

review the CIS District Director’s determination that the second I-130 petition fell

within the purview of INA § 204(c) and should therefore be denied. He contends

that, because this is a removal proceeding, the IJ should have not given conclusive

effect to the prior visa and adjustment-of-status proceedings.

      The Attorney General may, at his discretion, adjust the status of an alien to

that of a lawful permanent resident, and thereby permit relief from removal, if the

alien (1) applies for adjustment of status, including by filing an I-485 application,

(2) is eligible to receive an immigrant visa and is admissible to the United States

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for permanent residence, and (3) has an immigrant visa immediately available to

him at the time the I-485 application is filed. INA § 245(a), 8 U.S.C. § 1255(a).4

But, if the Attorney General determines that the alien entered into a marriage “for

the purpose of evading immigration laws,” the Attorney General cannot issue an

immigrant visa, which would render an applicant ineligible for adjustment of

status. INA § 204(c), 8 U.S.C. § 1154(c).

       The CIS District Director is tasked with determining, on the Attorney

General’s behalf, whether INA § 204(c) prevents the approval of an alien’s I-130

visa petition. Matter of Samsen, 15 I. & N. Dec. 28, 29 (BIA 1974). Although

that decision is directly appealable to the BIA, it is not reviewable by either an IJ

or the BIA in a later removal proceeding. Matter of Aurelio, 19 I. & N. Dec. 458,

460-61 (BIA 1987). Larrea never directly appealed the District Director’s

determination that he was ineligible for an immigrant visa based on § 204(c)

because he married Villavicencio to evade immigration laws to the BIA. And he

cannot argue the merits of the determination now, in his removal proceedings.

Accordingly, Larrea was not entitled to remand to the IJ, and we do not disturb the


       4
        Although we generally lack jurisdiction to review any claim by an alien “regarding the
granting of relief” under INA § 245(a), we retain jurisdiction over constitutional claims and
questions of law raised in a petition for review. INA § 242(a)(2)(B)(i), (D); 8 U.S.C.
§ 1252(a)(2)(B)(i), (D). Because Larrea challenges the BIA’s legal determinations and alleges a
due-process violation, we have jurisdiction to entertain these claims.

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District Director’s determination that Larrea was ineligible for an immigrant visa

based on INA § 204(c). Therefore, because Larrea did not have a valid immigrant

visa when he filed his I-485 application, the BIA correctly determined as a matter

of law that Larrea was ineligible for adjustment of status.

C.    Larrea’s due process claim

      Finally, Larrea argues that he was not given an adequate opportunity to

defend his case before the IJ. He claims that he deserved an additional

opportunity to be heard after the IJ’s hearing, and that, by issuing a written

decision instead of holding further proceedings, the IJ denied Larrea an

opportunity to be heard and to apply for additional forms of relief. “To establish

due process violations in removal proceedings, aliens must show that they were

deprived of liberty without due process of law, and that the asserted errors caused

them substantial prejudice.” Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th

Cir. 2009) (internal quotation marks omitted). The record in this case establishes

that Larrea was afforded ample opportunity to present affirmative and rebuttal

evidence to the IJ. And his counsel conceded that Larrea only sought adjustment

of status, even when the IJ warned Larrea that he was probably not eligible for this

form of relief. Accordingly, he has not demonstrated a due-process violation.

      For these reasons, we conclude that the BIA correctly determined Larrea’s

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removability and denied adjustment of status; therefore, we dismiss his petition in

part and deny it in part.

      PETITION DISMISSED IN PART and DENIED IN PART.




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