FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA LETICIA VALENCIA, 

Petitioner, No. 04-76571

v. Agency No. 

M A078-009-078 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

September 12, 2008—Pasadena, California

Filed December 4, 2008

Before: Mary M. Schroeder and Johnnie B. Rawlinson,

Circuit Judges, and Brian E. Sandoval,* District Judge.

Opinion by Judge Schroeder

*The Honorable Brian E. Sandoval, United States District Judge for the

District of Nevada, sitting by designation. 

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COUNSEL

Sassoun Nalbandian, Valley Village, California, for petitioner

Maria Leticia Valencia. 

Michele Y. F. Sarko, Washington, DC, for respondent

Michael B. Mukasey. 

OPINION

SCHROEDER, Circuit Judge: 

Maria Leticia Valencia appeals the Board of Immigration

Appeals’ decision affirming her order of removal on the basis

of a 1984 California conviction for transporting heroin. The

only issue raised in her petition is whether the IJ was required

as a matter of due process to advise her of a “right” to apply

for asylum, even though, on the basis of the evidence presented in the record, there was no plausible basis for such an

application. We deny the petition and join the Fifth Circuit in

holding that there is no requirement that an alien be advised

of the availability of relief from deportation where there is no

apparent eligibility to receive it. Ramirez-Osorio v. INS, 745

F.2d 937, 938 (5th Cir. 1984). 

In this case, petitioner was paroled into the United States

in 1989 in order to complete an application for adjustment of

status, but when her application for adjustment was denied in

2002, she was placed in these proceedings leading to the order

for her removal. Although she was advised of her right to

retain an attorney, and the hearing was continued more than

once in order to allow her to find one, she could not afford to

retain one, and no local legal aid attorney agreed to represent

her. 

The hearing eventually went forward with Valencia representing herself. Petitioner was advised of her right to cross

VALENCIA v. MUKASEY 15929
examine witnesses, and submit evidence, as well as her right

to be represented at no cost to the government. She submitted

a packet of documents attesting to her good character and

employment during the time she was in the United States. She

indicated to the IJ that she chose Mexico as the country to

which she would be sent if ordered removed, and she was also

given an opportunity during the hearing to ask any questions

about the conduct of the proceeding. She did not at any time

indicate she did not understand the hearing procedures. Neither did she indicate she feared a return to Mexico, nor did

she suggest a basis for any such fear. Both orally at the conclusion of the hearing and in the written order of removal, the

IJ expressly found that Valencia did not appear to be eligible

for any relief from removal. 

On appeal to the BIA, petitioner was represented by counsel. The BIA affirmed the order of removal on the basis of her

California conviction for the offense of transportation or sale

of heroin and, in accordance with our caselaw, ruled that subsequent expungement of the offense had no consequence for

immigration purposes. See Ramirez-Castro v. INS, 287 F.3d

1172, 1174-76 (9th Cir. 2002); Murillo-Espinoza v. INS, 261

F.3d 771, 774 (9th Cir. 2001). 

In the appeal to the BIA, Valencia also argued that the IJ

should have advised her that she could apply for asylum,

withholding, or relief under the Convention Against Torture.

The BIA rejected this argument because under controlling

regulations, the IJ has a duty to inform an alien of the availability of relief in removal proceedings only where the circumstances of the case reasonably reflect the alien’s

“apparent eligibility” for the particular form of relief at issue,

8 C.F.R. § 1240.11(a)(2), or where the alien expresses a fear

of persecution or harm upon return to any of the countries to

which the alien may be removed, id. § 1240.11(c)(1). At a

minimum, the BIA said, the alien must express a fear of persecution or torture in the country to which the alien would be

returned or articulate some theory that might support a claim.

15930 VALENCIA v. MUKASEY
Our court has agreed with this interpretation of the regulations. See United States v. Barraza-Leon, 575 F.2d 218, 222

(9th Cir. 1978) (construing 8 C.F.R. § 242.17(a), the substance of which can now be found in 8 C.F.R.

§ 1240.11(a)(2)). 

Petitioner brings a similar argument to this court, contending that due process required the IJ to give her blanket notice

of a right to apply for removal, withholding, or protection

under the Convention Against Torture. She does not suggest

that any change of circumstance or newly available evidence

would support an application for relief at this time. She did

not seek a reopening of her case by the BIA. 8 U.S.C.

§ 1229a(c)(7). Thus, neither in her appeal to the BIA nor in

her brief to us does petitioner suggest there is any plausible

basis for relief from removal. 

[1] In rejecting a similar contention that aliens in removal

proceedings are entitled to be advised of avenues for seeking

relief from removal, even if there appear to be none available,

the Fifth Circuit in Ramirez-Osorio pointed out that an alien

in civil removal proceedings is not entitled to the same bundle

of constitutional rights afforded defendants in criminal proceedings. 745 F.2d at 944 (“Consistent with the civil nature

of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing.”

(quoting INS v. Lopez-Mendoza, 468 U.S. 1032, 1038

(1984))). Due process in any ordinary civil removal proceeding does not require an alien to make a “knowing and intelligent” waiver of any right to apply for relief from removal. Id.

at 945. This court in Orantes-Hernandez v. Thornburgh, 919

F.2d 549, 551, 567 (9th Cir. 1990), affirmed an injunction that

required the Immigration and Naturalization Service (“INS”)

to give a written advisal of rights to the members of a class

of Salvadoran citizens, but we did so on the basis of a demonstrated pattern and practice of abuses by the INS against

members of the class. No such pattern has been suggested

here. The record in this case demonstrates that the petitioner

VALENCIA v. MUKASEY 15931
was able to present evidence on her own behalf, to have an

interpreter to assist her, and to seek legal counsel. There is no

challenge to any aspect of her administrative proceedings

other than the claimed failure to advise her of relief for which

she was and still is apparently ineligible. There was no basis

for an application for relief from removal and no due process

right to be told about the possibility of filing one. 

[2] There is one additional point we should consider. The

alien in this case had been denied an adjustment of status after

being paroled into this country. As the BIA explained, her status on such denial reverted by operation of law to that of an

applicant for admission. 8 U.S.C. § 1182(d)(5)(A). The government in its brief points out that applicants for admission

are unlike admitted aliens or aliens who are not subject to the

“entry fiction,” and therefore applicants for admission have

virtually no constitutional rights regarding their applications.

See Landon v. Plasencia, 459 U.S. 21, 33-34 (1982). The government understandably does not urge us to rest on that

ground in rejecting petitioner’s argument, however. There is

no reason to limit our holding to applicants for admission and

thus suggest that due process might require a different result

in a case involving an alien who has effected an entry into the

United States rather than one who is seeking admission in the

first instance. An alien has no blanket right to be advised of

the possibility of asylum or other relief in either case. 

[3] We agree with the Fifth Circuit that requiring the IJ to

advise an alien of the availability of relief for which there is

no apparent eligibility would invite the filing of meritless

applications. Ramirez-Osorio, 745 F.2d at 946. Applications

for relief require often protracted evidentiary proceedings,

including documents, witnesses, and evaluation of social and

political conditions in a country outside of the United States.

Such applications should not be encouraged where there is no

reason to believe they would be anything but futile. As the

Fifth Circuit observed, “[o]nce an alien is given notice of the

right to petition for asylum there is considerable incentive for

15932 VALENCIA v. MUKASEY
him to do so, no matter how slim the chances of success, since

an application may well extend deportation proceedings for

years.” Id.

The resources of the agencies charged with administration

of our immigration laws are limited and severely taxed.

Indeed, Congress has acted to deter the filing of applications

that lack merit. If an application is deemed to be so meritless

as to be “frivolous,” an alien may be permanently ineligible

for benefits under the Immigration and Nationality Act. 8

U.S.C. § 1158(d)(6). Thus, if an IJ were required to advise of

all possible ways of obtaining relief from deportation, and if

an alien, acting upon such notice, were to file a frivolous

application, the application could not only add needless

administrative burdens on the immigration system, but also

result in a frivolousness determination that would leave the

alien in a worse position than if there had been no notice.

Surely due process, which at its core means fairness, cannot

require such a result. 

Petition DENIED. 

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