NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELANIT AVIDAN, 

 Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

 Respondent.

No. 21-70146 

Agency No. A095-710-920 

MEMORANDUM* 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted March 8, 2023**

 

Pasadena, California

Before: KLEINFELD, WATFORD, and COLLINS, Circuit Judges.

Elanit Avidan petitions for review of an order of the Board of Immigration 

Appeals (BIA) dismissing her appeal from the decision of an immigration judge 

denying her application for a waiver of removal under 8 U.S.C. § 1227(a)(1)(H). 

 * 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).

FILED

MAR 22 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

We dismiss in part and deny in part the petition.

1. Our review of the BIA’s denial of a waiver of removal under 8 U.S.C. 

§ 1227(a)(1)(H) is limited to colorable “constitutional claims [and] questions of 

law.” § 1252(a)(2)(D); see also § 1252(a)(2)(B)(ii); Mendez-Castro v. Mukasey, 

552 F.3d 975, 978 (9th Cir. 2009); San Pedro v. Ashcroft, 395 F.3d 1156, 1157–58 

(9th Cir. 2005). Here, the BIA applied the correct standard from In re Tijam, 22 I. 

& N. Dec. 408, 412–13 (BIA 1998) (en banc), and properly considered each 

relevant factor de novo. Avidan’s argument that the BIA abused its discretion by 

not giving sufficient weight to the positive equities in her case does not raise a 

colorable question of law. It instead challenges how the agency balanced the 

relevant considerations—a matter over which we lack jurisdiction. See Vasquez v. 

Holder, 602 F.3d 1003, 1017 (9th Cir. 2010) (noting that “we do not have 

jurisdiction to review the discretionary denial of a fraud waiver”).

Avidan also argues that it was legal error for the BIA to consider the 

misrepresentations she made in applying for naturalization and petitioning for a 

visa on behalf of her second husband because those acts were extensions of her 

initial entry fraud. As decisions from the Supreme Court and the BIA have made 

clear, however, the BIA can consider a petitioner’s initial entry fraud as an adverse 

factor when making a discretionary decision under 8 U.S.C. § 1227(a)(1)(H). See 

INS v. Yueh-Shaio Yang, 519 U.S. 26, 31 (1996); Tijam, 22 I. & N. Dec. at 416–17.
3

Accordingly, we lack jurisdiction to review the BIA’s decision because 

Avidan’s contentions, namely that the agency failed to properly weigh the positive 

equities in her case and improperly considered subsequent misrepresentations 

made to immigration authorities, do not state colorable questions of law.

2. Avidan contends that the immigration court lacked jurisdiction because 

the notice to appear (NTA) she received was defective under Niz-Chavez v. 

Garland, 141 S. Ct. 1474 (2021), and Pereira v. Sessions, 138 S. Ct. 2105 (2018). 

That argument is foreclosed by our recent decision in United States v. BastideHernandez, 39 F.4th 1187 (9th Cir. 2022) (en banc), which held that “the failure of 

an NTA to include time and date information does not deprive the immigration 

court of subject matter jurisdiction.” Id. at 1188. We therefore deny the petition as 

to this claim.

PETITION FOR REVIEW DISMISSED IN AND DENIED IN PART.