                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 02 2015

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GUGLIELMO PASQUALE,                               No. 11-73120

              Petitioner,                         Agency No. A030-954-386

  v.
                                                  MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                      Argued and Submitted February 11, 2015
                             San Francisco, California

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

       Guglielmo Pasquale, a native and citizen of Italy, petitions for review of the

Board of Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s

(I.J.) denial of his application for cancellation of removal. We have jurisdiction




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
pursuant to 8 U.S.C. § 1252, and we deny in part and dismiss in part the petition

for review.

      Pasquale, a lawful permanent resident of the United States, was placed into

removal proceedings in 2003. Despite an extensive criminal record, he was

granted cancellation of removal in 2006. The Department of Homeland Security

(DHS) appealed, and while its appeal was pending, Pasquale was convicted of

additional crimes. The BIA granted DHS’s motion to remand the case to the I.J.,

who found Pasquale ineligible for cancellation of removal on the basis of one of

the new convictions, which she concluded was an aggravated felony. The BIA

disagreed, holding that the crime was not an aggravated felony, but remanded

Pasquale’s case to the I.J. in 2010 to determine whether he remained entitled to

cancellation of removal as a matter of discretion. The I.J. concluded that he did not

and ordered him removed. The BIA affirmed.

      Pasquale argues that the BIA’s 2010 remand order was improper. First, he

argues that the BIA violated his Fifth Amendment due process rights by remanding

to the I.J. in 2010. “A due process violation occurs where (1) the proceeding was

so fundamentally unfair that the alien was prevented from reasonably presenting

his case, and (2) the alien demonstrates prejudice, which means that the outcome of

the proceeding may have been affected by the alleged violation.” Vilchez v.


                                          2
Holder, 682 F.3d 1195, 1199 (9th Cir. 2012) (internal quotation marks omitted).

Here, Pasquale was afforded the opportunity to “reasonably present[] his case”: he

was able to put on evidence and argue before the I.J. that he merited cancellation of

removal in spite of his criminal record. There was no due process violation.

      Pasquale next argues that the BIA erred by remanding his case without being

asked to do so. But Pasquale can identify no regulation that prevents the BIA from

issuing a sua sponte remand. Even if the BIA is limited to adjudicating “questions

before it,” 8 C.F.R. § 1003.1(d)(1), a question we need not decide, the BIA could

reasonably have concluded in this case that Pasquale’s eligibility for cancellation

of removal — as a matter of law and as a matter of discretion — was “before it” in

2010. Construed as an argument that the BIA erred by reaching an issue that DHS

had waived, Pasquale’s claim likewise fails. Even in the federal courts, questions

of waiver are “left primarily to the discretion of the courts of appeals, to be

exercised on the facts of individual cases.” Singleton v. Wulff, 428 U.S. 106, 121

(1976) (plurality opinion). Therefore, even if we could review the BIA’s decision

for abuse of discretion, we would find no abuse of discretion on these facts.

      Pasquale argues, in the alternative, that the I.J. and BIA erred by ignoring

evidence of his community service in denying his application for cancellation of

removal. We disagree. The I.J. did not err by not explicitly referring to the fact


                                           3
that Pasquale once testified as a state’s witness. See Vilchez, 682 F.3d at 1201

(“An IJ does not have to write an exegesis on every contention.” (internal quotation

marks omitted)). We lack jurisdiction to review the I.J.’s discretionary decision to

deny cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i).

      PETITION DENIED IN PART, DISMISSED IN PART.




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