                                                                              FILED
                            NOT FOR PUBLICATION
                                                                              MAY 21 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SERGIO CASILLAS RAMIREZ,                         No. 17-73233

              Petitioner,                        Agency No. A200-158-006

 v.
                                                 MEMORANDUM*
WILLIAM P. BARR, Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted April 14, 2020**
                               Pasadena, California

Before: THOMAS, Chief Judge, and FERNANDEZ and W. FLETCHER, Circuit
Judges.

      Petitioner Sergio Casillas Ramirez (“Ramirez”) petitions for review of a

Board of Immigration Appeals (“BIA”) order affirming a denial of his request for a

continuance of his removal proceedings. In its order, the BIA also declined to


      *
             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).
review the government’s decision to initiate removal proceedings against Ramirez,

or to remand his case so that the government could further consider whether to

exercise prosecutorial discretion. Ramirez petitions for review of each of those

determinations. He also argues that he was deprived of due process because his

notice to appear (“NTA”) lacked a date and time, and that the appointment of

immigration judges (“IJs”) and members of the BIA violates the Appointments

Clause of the U.S. Constitution.1

      The parties are familiar with the facts and procedural history, so we need not

repeat them here. We have jurisdiction under 8 U.S.C. § 1252. Where, as here, the

BIA conducts “its own review of the evidence and law rather than simply adopting

the immigration judge’s decision,” our review is “limited to the BIA’s decision,

except to the extent the IJ’s opinion is expressly adopted.” Hosseini v. Gonzales,

471 F.3d 953, 957 (9th Cir. 2006) (internal quotation marks and citation omitted).

      1. During the proceedings, the IJ incorrectly stated that Ramirez was

ineligible for prosecutorial discretion. Ramirez now argues that his case should be

remanded to the IJ, who should “properly rule on the record” as to whether he is

entitled to prosecutorial discretion. However, we lack jurisdiction to review the


      1
         We GRANT the government’s motion to strike Ramirez’s supplemental
brief, and any arguments therein, that was filed without this court’s permission
[Dkt Entry No. 25]. See Fed. R. App. P. 28(c).
                                          2
government’s failure to exercise prosecutorial discretion because 8 U.S.C. §

1252(g) strips courts of jurisdiction “to hear any cause or claim by or on behalf of

any alien arising from the decision or action by the Attorney General to commence

proceedings, adjudicate cases, or execute removal orders against any alien under

this chapter.” Under this provision, decisions to “adjudicate cases or to refer them

to IJs for hearing are not reviewable.” Barahona-Gomez v. Reno, 236 F.3d 1115,

1120 (9th Cir. 2001). The IJ’s erroneous conclusion that Ramirez was ineligible

for prosecutorial discretion does not on its own warrant remand. The government

may reconsider its exercise of prosecutorial discretion at any time—“[r]emand is

obviously not necessary to permit the agency to exercise discretion of this kind.”

Morales de Soto v. Lynch, 824 F.3d 822, 826 (9th Cir. 2016).

      2. Ramirez next argues that the IJ abused her discretion when she denied his

request for a continuance, a decision the BIA affirmed. An IJ “may grant a motion

for continuance for good cause shown,” 8 C.F.R. § 1003.29, and a decision to deny

a continuance will not be overturned “except on a showing of clear abuse.” Ahmed

v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009) (internal quotation marks and

citation omitted). The BIA abuses its discretion “when it fails to . . . show proper

consideration of all factors when weighing equities and denying relief” and “when




                                          3
it makes an error of law.” Owino v. Holder, 771 F.3d 527, 532 (9th Cir. 2014)

(internal quotation marks and citation omitted).

      Ramirez argues that a continuance through the resolution of his civil rights

case against San Bernardino County would have allowed him to seek a U-visa

petition for a second time. See 8 U.S.C. § 1101(a)(15)(U)(i). However, the IJs that

presided over Ramirez’s case had already granted him at least five continuances,

three of which were related to his initial, failed attempt to obtain the certification

needed for a U-visa petition. See id. at § 1184(p)(1). Moreover, Ramirez had not

shown he was prima-facie eligible for the U visa, again because he had not yet

obtained the necessary certification. Accordingly, such relief was speculative.

Under the frameworks outlined in Owino, 771 F.3d at 532, and Matter of Sanchez

Sosa, 25 I. & N. Dec. 807, 812–13 (BIA 2012), the BIA did not abuse its discretion

in affirming the denial of the continuance.

      3. Ramirez next argues that because law enforcement arrested him without

probable cause, which in turn led to the initiation of immigration proceedings

against him, his NTA was invalid. Even assuming this is a challenge to the

circumstances of his arrest rather than the decision to issue the NTA (for which we

would lack jurisdiction to hear under 8 U.S.C. § 1252(g)), and further assuming we

have authority to review its legality, Ramirez’s challenge fails. Both reasonable


                                            4
suspicion and probable cause existed to stop and/or arrest Ramirez. See United

States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (describing the

standard for reasonable suspicion); United States v. Lopez, 482 F.3d 1067, 1072

(9th Cir. 2007) (describing the standard for probable cause); United States v.

Buckner, 179 F.3d 834, 837 (9th Cir. 1999) (same).

      4. Ramirez argues that he was deprived of due process because his NTA

lacked a date and time for his appearance before the IJ. He claims that the stop-

time rule for cancellation of removal has therefore not been triggered, allowing

him to show the required ten years of continuous presence. See 8 U.S.C. §

1229b(b)(1)(A). Ramirez bases this argument on Pereira v. Sessions, 138 S. Ct.

2105, 2110 (2018), which held that a document labeled “notice to appear” that fails

to specify either the time or place of the removal proceedings as required by 8

U.S.C. § 1229(a) does not trigger the stop-time rule.

      Ramirez did not raise this claim before the BIA, and he raised it before us

only in his reply brief. Accordingly, the argument is waived. See Szonyi v.

Whitaker, 915 F.3d 1228, 1233 (9th Cir. 2019) (“A petitioner’s failure to raise an

argument before the BIA generally constitutes a failure to exhaust, thus depriving

this court of jurisdiction to consider the issue.”), opinion amended on denial of

reh’g sub nom. Szonyi v. Barr, 942 F.3d 874 (9th Cir. 2019); United States v.


                                          5
Anderson, 472 F.3d 662, 668 (9th Cir. 2006) (“Issues raised for the first time in an

appellant’s reply brief are generally deemed waived.”). Assuming the argument

was not waived, it nonetheless fails. Seeing as Ramirez appeared before an IJ

multiple times, he was clearly served with a proper NTA at some point.

Accordingly, Ramirez cannot show that he was prejudiced by the defective notice.

See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (holding that to prevail on a

due process challenge to deportation proceedings, a petitioner “must show error

and substantial prejudice” (emphasis added)).

      In any event, there is no reason to believe that Ramirez could satisfy the

demanding standard for cancellation of removal. 8 U.S.C. § 1229b(b)(1)(D)

allows for cancellation of removal only if “removal would result in exceptional and

extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen

of the United States or an alien lawfully admitted for permanent residence.” The

“exceptional and extremely unusual hardship” standard “constitutes a high

threshold that is in keeping with Congress’ intent to substantially narrow the class

of aliens who would qualify for relief.” In re Gonzalez Recinas, 23 I. & N. Dec.

467, 470 (BIA 2002). Although the record shows that Ramirez has a U.S. citizen

child, it does not contain evidence of Ramirez’s ability to clear the high bar for

cancellation of removal. See In re Recinas, 23 I. & N. Dec. at 467, 471 (discussing


                                           6
factors relevant to assessing the hardship to the respondent’s children, including

the “heavy burden imposed on the respondent to provide the sole financial and

familial support” for her children, “the lack of any family in her native country, the

children’s unfamiliarity with the Spanish language, and the unavailability of an

alternative means of immigrating to this country”).

      5. Finally, Ramirez argues that the appointments of IJs and members of the

BIA do not satisfy the Appointments Clause of the U.S. Constitution, and that

these individuals therefore lacked jurisdiction to order and affirm his removal.

Ramirez also claims that the absence of a statutory provision permitting removal of

IJs and BIA members suggests they are not sufficiently subject to removal by the

President. Ramirez did not exhaust these arguments with the agency. However, 8

U.S.C. § 1252(a)(2)(D) allows courts of appeals to hear constitutional claims or

questions of law raised in a petition for review. See also Freytag v. Comm’r, 501

U.S. 868, 878–79 (1991) (noting that “Appointments Clause objections to judicial

officers” are “in the category of nonjurisdictional structural constitutional

objections,” and as such can “be considered on appeal whether or not they were

ruled upon below”).

      The Appointments Clause establishes three categories of federal-agency

personnel: principal officers, inferior officers, and non-officer employees. U.S.


                                           7
CONST. art. II, § 2, cl. 2; see also Silver v. U.S. Postal Serv., 951 F.2d 1033,

1036–37 (9th Cir. 1991) (discussing all three). “[T]he President must seek the

advice and consent of the Senate to appoint principal officers.” Stanley v.

Gonzales, 476 F.3d 653, 659 (9th Cir. 2007). For inferior officers, Congress can

diverge from this default and by law vest appointment in the President alone,

courts, or agency heads. Id. “Individuals who are merely employees of the United

States government do not implicate the Appointments Clause.” Silver, 951 F.2d at

1037.

        IJs and members of the BIA are inferior officers whose appointments do not

offend the Constitution. They are officers rather than mere employees because

they are adjudicative officials who exercise significant authority. See Lucia v.

SEC, 138 S. Ct. 2044, 2051–55 (2018) (distinguishing officers from non-officers);

Freytag, 501 U.S. at 881–82 (same). However, they are inferior rather than

principal officers because they are subject to both judicial and managerial

supervision. See Edmond v. United States, 520 U.S. 651, 662–66 (1997)

(distinguishing principal officers from inferior officers). Their appointments do

not violate the Appointments Clause because IJs and BIA members are both

appointed by the Attorney General through authority granted by Congress. See 8

U.S.C. § 1101(b)(4) (requiring appointment of IJs by the Attorney General); 8


                                           8
U.S.C. § 1103(g)(2) (granting the Attorney General power to “establish such

regulations” and “review . . . administrative determinations in immigration

proceedings”); 8 C.F.R. § 1003.1(a)(1) (providing that BIA “members shall be

attorneys appointed by the Attorney General to act as the Attorney General’s

delegates in the cases that come before them”).

      Nor is the lack of a statutory scheme regarding the removal of BIA members

and IJs unconstitutional. “[A]s a matter of statutory interpretation, . . . absent a

‘specific provision to the contrary, the power of removal from office is incident to

the power of appointment.’” Carlucci v. Doe, 488 U.S. 93, 95 (1988) (quoting

Keim v. United States, 177 U.S. 290, 293 (1900)). Ramirez identifies no restriction

on the Attorney General’s ability to remove the IJs and BIA members that it is

empowered to appoint. Accordingly, we do not agree with Ramirez’s contention

that IJs and BIA members are not sufficiently removable.

      The petition is DENIED.




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