                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                         June 1, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
EDGAR ABDON
CORRAL-ARMENDARIZ,

             Petitioner,

v.                                                         No. 14-9590
                                                       (Petition for Review)
LORETTA E. LYNCH,
United States Attorney General,*

             Respondent.


                           ORDER AND JUDGMENT**


Before BACHARACH, PORFILIO, and BALDOCK, Circuit Judges.


      Petitioner, a citizen of Mexico, seeks review of an order of the Board of

Immigration Appeals (BIA) upholding a decision of the Immigration Judge (IJ)

pretermitting his application for adjustment of status under 8 U.S.C. § 1255(i).

*
       In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
Loretta E. Lynch is substituted for Eric H. Holder, Jr., as the respondent in this
action.
**
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Because petitioner had reentered the U.S. without inspection after previously residing

in the country illegally for over a year, the IJ found him inadmissible under 8 U.S.C.

§ 1182(a)(9)(C)(i)(I), which in turn rendered him ineligible for adjustment of status

under § 1255(i)(2)(A), see Padilla-Caldera v. Holder, 637 F.3d 1140, 1148 (10th Cir.

2011). The BIA upheld this determination, rejecting petitioner’s objection that the IJ

had violated his due process rights by resolving his application without holding an

evidentiary hearing. Petitioner renews his due process objection in his petition for

review, which we deny for the reasons explained below.

      A short summary of the relevant undisputed facts recounted by the IJ will put

the BIA’s decision in context. Petitioner illegally entered the U.S. in 2000 (or

possibly 2001). Four years later, he was found removable but took advantage of an

alternative grant of voluntary departure. He illegally reentered the U.S. almost

immediately. He was arrested and removed in October 2004 by immigration officers

who erroneously invoked the prior alternative removal order as authority because

they thought he had never voluntarily departed. He again illegally reentered the U.S

in 2008 and later filed a motion to reopen, contending his removal by the

immigration officers had been invalid. The motion was granted, venue was changed

to Denver, and he filed an application for adjustment of status. At a hearing in

August 2011, he testified briefly about his initial entry into and departure from the

U.S., and his counsel argued in support of his application for adjustment of status.

The matter was continued until April 2012. At that time, without hearing further


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evidence (petitioner’s counsel was allowed to speak briefly), the IJ issued an oral

decision pretermitting the adjustment application due to petitioner’s inadmissibility

under § 1182(a)(9)(C)(i)(I).

      On appeal, petitioner raised only the due process objection alluded to earlier.

Noting that the operative facts were both undisputed and sufficient to demonstrate

petitioner’s statutory ineligibility for adjustment of status, the BIA concluded that

petitioner was not prejudiced by the IJ’s disposition of his application without

hearing additional evidence. We agree.

      Petitioner argues that had additional evidence and associated argument been

heard, the IJ would have realized that his summary removal by the immigration

officers in 2004 for failing to voluntarily depart was improper and thus did not count

as a prior removal for purposes of determining his subsequent admissibility. But that

is immaterial to his inadmissibility under § 1182(a)(9)(C)(i)(I), which requires only

prior illegal presence for more than a year and a subsequent illegal entry.1 As the IJ

explained, the undisputed facts satisfy these conditions. Petitioner further contends

that the grant of his motion to reopen revived his initial removal proceedings and

“placed [him] back in the same legal position he was at the beginning of [those]

proceedings.” Aplt. Br. at 16. But that does not erase the critical undisputed facts of

illegal presence and illegal reentry that trigger application of § 1182(a)(9)(C)(i)(I).
1
      Illegal reentry after an alien “has been ordered removed” is a separate basis for
inadmissibility (and consequent ineligibility for adjustment of status), specified in
§ 1182(a)(9)(C)(i)(II). The IJ did not rely on that provision.


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Regardless of whether he could have raised some defense to the reinstated 2004

removal charge—a charge he conceded in the 2004 proceedings—after the matter

was reopened, he had by that time undeniably resided illegally in the U.S. for over a

year and then reentered illegally in 2008.2

      “To prevail on a due process claim, an alien must establish not only error, but

prejudice.” Barrera-Quintero v. Holder, 699 F.3d 1239, 1249 (10th Cir. 2012)

(internal quotation marks omitted). No such showing has been made here.

      The petition for review is denied.

                                                 Entered for the Court


                                                 John C. Porfilio
                                                 Circuit Judge




2
       We note that the IJ expressly acknowledged both the problem with the 2004
removal by the immigration officers and the grant of the motion to reopen, but
correctly denied the application for adjustment of status under § 1182(a)(9)(C)(i)(I)
because neither the invalid removal nor the grant of the motion to reopen affected the
grounds for invoking that provision.


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