2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

5-25-2012 

# O v idio H e r n a nde z v

. Att y Ge n U S A

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al

D ock e t N o . 11-2714

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w
. v i l l a no v a

. e du/thir dc ir c uit_2012

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2012 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w
. v i l l a no v a

. e du

. R e c omme nde d C it a t ion

" O v id io H e r n a ndez v

. Att y Ge n U SA" (2012). 2012 D e cisio n s

. P a pe r 937. h tt p://d i g it alc ommon s .l a

w
. v i l l a no v a

. e du/thir dc ir c uit_2012/937NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 2714

___________ OVIDIO ISAAC HERNANDEZ ,
Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petit ion for Review of an Order of the Board of Immigration Appeals ( A0 44

- 465

- 780 ) Immigration Judge: Honorable Dorothy A. Harbeck

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) May 23, 2012

Before: SCIRICA, CHAGARES and GREENBERG
, Circuit Judges
(Opinion filed : May 25, 2012 )

___________

OPINION

___________ PER CURIAM

Ovidio Isaac Hernande z, a native and citizen of El Salvador, seeks review of a

final removal order entered by the Board of Immigration Appeals (“BIA”)

. F or the

reasons that follow, w e will deny the petition for review.2 The relevant background can be summarized briefly

. In 1982, at the age of six,

Hernandez entered the United States without inspection

. In 1992, while still a minor, he
was adjudicated del inquent in New Jersey on a charge of sexual assault and ordered to
comply with the registration requirements of “Megan’s Law.” In 1996, Hernandez
adjusted status to lawful permanent resident. Thereafter, Hernandez had various

encounters with the criminal justice system in New Jersey
, including , as relevant here, a
1997 conviction for possession of 1.5 grams of marijuana
, a 1999 conviction for urinating
in public , and convictions in 2005 and 2008 for failure to register as a sex offender.

In 2002 and 20 03 , Hernandez took brief trip s abroad and
, upon return, was

re admitted to the United States

. In 2009, Hernandez was served a Notice to Appear
charging removab ility under 8 U.S.C. § 1227(a)(2)(A)(ii) on the ground that the 2005 and

2008 convictions for fai lure to register as a sex offender constitute two crimes involving
moral turpitude not arising out of a single scheme of criminal misconduct

. Appearing with counsel before an Immigration Judge (“IJ”) , Hernandez conceded

his removability as charged , and the IJ rendered a determination that Hernandez is

removable based on clear and convincing evidence

. 1

1 In addition, Hernandez did not contest his removability before the BIA, and he does not contest it before this Court. Consequently, we do not review the IJ’s determination that Hernandez is removable on the grounds charged. Hernandez further conceded that he

i s in eligible for cancellation of removal, and he did not apply for asylum or other relief

based on a fear of returning to El Salvador . Instead, Hernandez submitted an application3 for a nunc pro tunc waiver of inadmissibility under INA § 212(h), 8 U.S.C. § 1182(h)

. 2

After a lengthy course of proceedings, the IJ denied relief . The IJ explain ed that
,
while Hernan dez was inadmissible when he return ed from abroad in 2003 due to his 1997
marijuana conviction
, h e is eligible for a nunc pro tunc § 212(h) waiver of his
inadmissibility. However, with regard to his inadmissibility for the subsequent 2005 and

2008 convictions, t he IJ held that Hernandez can not pursue a § 212(h) waiver because he

did not file a n application for adjust ment of his status.
Hernandez appealed to the BIA , arguing that
, because the IJ h eld that he i s eligible

for § 212(h) relief on the 1997 conviction, he should be permitted to use th at waiver to

overcome his inadmissibility for the 2005 and 2008 convictions. Hernandez also filed

m otion s to reopen and to remand the case , arguing that he now should be permitted to
apply for c ancellation of removal on th e 2005 and 2008 convictions in light of the IJ
having determin ed that a § 212(h) waiver is available for the 1997 conviction.
The BIA dismissed the appeal and denied the motion to remand. It agreed with

the IJ that a nunc pro tunc waiver of inadmissib ility for the 1997 conviction does n ot

extend to the two convictions that provide the grounds for removal, both of which arose
after Hernandez’s last entry into the United States in 2003

. In addition , Hernandez c ould

seek to waive inadmissibility for the 2005 and 2008 convictions only if he appli ed to

2 See 8 U.S.C. § 1182(h) (providing, inter alia, that “[t]he Attorney General may, in his discretion, waive” inadmissibility “insofar as it relates to a single of fense of simple possession of 30 grams or less of marijuana”).4 adjust status, which Hernandez failed to do. Finally, t he BIA declined to remand the

case , rejecting Hernandez ’s “belated” request to apply for cancellation of removal.
Hernandez timely filed a petition for review.

In his brief before this Court, Hernandez does not c hallenge the BIA’s holding that

a § 212(h) waiver is un available f or the 2005 and 2008 convictions. Rather, Hernandez’s

sole argument is that , in rejecting his motion to remand/ reopen the cas e, the BIA deprived

him of an opportunity to make a case that he is eligibl e for cancellation of removal as to

those convictions

. We discern no error in the BIA’s decision

. 3

Hernandez suggests that he was unable to apply for cancellation of removal prio r

to the IJ issuing her decision holding that he is eligible for a § 212(h) waiver on the 1997

conviction. By Hernandez’s reckoning, he was “barred” earlier in the proceedings from
seeking cancellation of removal due to the “stop

- time rule,” 8 U.S.C. § 12 29b(d)(1), and

this bar , Hernandez contends, was lifted only when the IJ held that relief from the 1997

conviction was available. Hernandez maintains that the IJ’s ruling regarding his § 212(h)
eligibility wa s a “ new fact” that warrant ed reopening the cas e

. The record reflects that Hernandez, through c ounsel, willingly concede d before the

IJ , on more than one occasion, that he was in eligibl e for cancell ation of removal

. S ee

3 We reject the government’s challenge to our jurisdiction over the petition for review. Even accepting, as the government contends, that the bar to review under 8 U.S.C. § 1252(a)(2)(C) is triggered by Hernandez’s 2005 and 2008 convictions, Hernandez’s argument before this Court

– essentially, that he was denied the right to apply for cancellation of removal

– presents a colorable “constitutional claim or question of law,” which we retain ju risdiction to review. See 8 U.S.C. § 1252(a)(2)(D).5 A.R. at 196 , 261 . Furthermore , Hernandez never raised or preserve d an argument t hat he
would become eligible for cancellation of removal , and that he would pursue an
application for that relief, should the IJ hold that a § 212(h) waiver is available for the

1997 conviction. Given this record, Hernandez was not de nied a meaningful opp ortunity
to present a case for cancellation of removal ; he simply failed to make th e argument
when he should have, and then sought to raise it only belatedly , after the IJ had issued a

final decision order ing his removal

. T he BIA’s reasons for refusing to remand / reopen

th is case are sound and fully supported :

T o embrace [Hernandez]’s reasoning would invite repeated piecemeal reopening (or remand of the record to the Immigration Judge) each time an Immigration Judge were to issue a legal decision, and would render immigration litigation virtually interminable, contrary to the strong public interest in finality of immigration litigation once the parties have had an opportunity to develop their cases.
[Hernandez] had the opportunity to present his argument

r egarding his potential eligibility for cancellation of removal during the course of his removal proceedings, but failed to do

so. His belated request to apply for cancellation of removal does not warrant remand of the record for further proceedings before the Immigration Judge.
A.R. at 4 (citations omitted).
For the foregoing reasons , we will deny the petition for review

.