In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-3228

ARTHUR G. BAKARIAN,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States,

Respondent.

____________

On Petition for Review of an Order

of the Board of Immigration Appeals.

No. A43 003 461

____________

ARGUED MAY 29, 2008—DECIDED SEPTEMBER 4, 2008

____________

Before FLAUM, MANION, and EVANS, Circuit Judges.

MANION, Circuit Judge. Arthur Bakarian, a native of

the former Soviet Union, was charged with being removable as having been convicted of two crimes involving

moral turpitude not arising out of a single scheme of

criminal misconduct under Section 237(a)(2)(A)(iii) of the

Immigration and Nationality Act (“INA”). Bakarian filed

for cancellation of removal and waiver of inadmissibility.
2 No. 06-3228

The Immigration Judge (“IJ”) denied Bakarian’s application, and the Board of Immigration Appeals (“BIA”)

affirmed. Bakarian petitions this court for review, and

we DENY his petition for review.

I.

On June 9, 2005, the Department of Homeland Security

(“DHS”) initiated removal proceedings against Bakarian by

filing a Notice to Appear in immigration court, charging

him with removability under 8 U.S.C. § 1227(a)(2)(A)(ii), as

an alien convicted of two or more crimes involving

moral turpitude not arising out of a single scheme of

criminal misconduct. The Notice alleged that Bakarian

was a native and citizen of Ukraine who was admitted to

the United States on or about May 25, 1993, as an immigrant. The Notice continued to list four separate convictions for forgery, intimidation of a victim, and two thefts

of property, noting that those “crimes did not arise out of

a single scheme of criminal misconduct.”

Bakarian appeared before the IJ on September 6, 2005,

and admitted, while under oath, the allegations set forth

in the Notice. Bakarian stated that he first came to the

United States in 1989, then went back to Moscow to study,

and received his permanent resident visa in 1993. The IJ

then went through each of the four convictions listed

on the notice. The first was a forgery conviction from a

Wisconsin state court on November 13, 2003, and Bakarian

explained that this offense involved a stolen check. The

second was a November 13, 2003, Wisconsin state court

conviction for the offense of “Intimidate Victim/Dissuade
No. 06-3228 3

Reporting,” which Bakarian stated occurred while he

was out on bond on the forgery charge. He violated one

of the conditions of his bond, which was not to have

contact with the victims. The third conviction was a

September 25, 1996, conviction from the municipal court

in Los Angeles County, California for theft on September 18, 1996. The final conviction was also a Los Angeles

County theft conviction for a theft on August 3, 1996.

Regarding the first of these thefts, Bakarian stated that

he had left his father’s house and was hungry so he stole

some meat, and the second theft he stole vodka. In an

attempt to ascertain whether Bakarian was eligible for

cancellation of removal as a permanent resident, the IJ

questioned Bakarian about when he entered the country.

The IJ gave Bakarian an application to file for cancellation

of removal and directed Bakarian to fill out the application

and bring it back to the IJ on September 14, 2005. The IJ

also requested from DHS a copy of Bakarian’s immigrant

visas, evidence showing that Bakarian was first here in

1989, and the government’s position on whether Bakarian

was eligible for cancellation of removal. The IJ continued the hearing until September 14, 2005.

On September 14, 2005, Bakarian again appeared

before the IJ, and this time he submitted an application for

cancellation of removal. According to his application for

cancellation of removal, Bakarian entered the United

States on November 15, 1987, as a B-2 visitor, and left

that same year to return to the Soviet Union. Bakarian

also stated on his application that he came back to the

United States on August 20, 1989, as a lawful permanent

resident. However, documentary evidence from DHS
4 No. 06-3228

established that he did not come back into this country

until March 5, 1990. In response to the IJ’s inquiry, the

government stated that it had no record of Bakarian

obtaining residency in 1989. Despite the 1990 date on his

immigrant visa and no documentation of an entry into

the United States in 1989, Bakarian insisted to the IJ that

his first entry into the United States as a lawful permanent

resident took place in 1989. At some point after attaining

lawful permanent residence status, Bakarian testified that

he returned to Moscow, where his passport had been

stolen. Bakarian testified that he got his replacement

green card in 1992 and returned to the United States in

1993. Towards the end of the hearing, Bakarian requested

that his case be transferred to Los Angeles, California,

where he stated his father was in the hospital, paralyzed

after a heart attack. The IJ responded:

Sir, here’s the difficulty you face. In order to be

eligible for cancellation of removal, you have to have

resided in the United States for seven years after a

lawful admission and prior to committing any

deportable offenses. Now, if you got your resident

status in 1989, you would have to show that you have

a clean record for seven years after that even to

apply for cancellation of removal. The Government

attorney is contending that you didn’t get your resident status until 1990, and your conviction records

show that you were convicted of theft in August of ‘96

and September of ‘06, and you would not have accumulated the seven years necessary to apply for cancellation of removal. So it’s very critical to try to come up

with some evidence to show whether you really got
No. 06-3228 5

your visa in 1989 or was it the year [1990], because the

Government records that they have submitted to the

Court today show that you got your residence in 1990.

The IJ had found that Bakarian was deportable because

of his criminal record, and told Bakarian that he “thought

you might be eligible to apply for cancellation of your

removal, and that’s why I provided you that application,

but if you don’t have seven years in the United States prior

to commission of your criminal offense, then you would

not be eligible for cancellation of removal, and the record

shows that you do not have seven years.” The IJ asked

Bakarian if he had an attorney, and Bakarian responded

that he did not and was not eligible for representation

from legal aid. The IJ then stated,

What I’m going to do is find that you’re not eligible to

apply for cancellation of removal, because you can’t

meet the requirements for that benefit. And what I’ll

do is I’ll just dictate a decision. I’m going to have the

officer fax your application to your Court. And then

you will decide whether or not you want to appeal

my decision or not. Now, you get to designate to

which country you would be deported to, but if that

country won’t accept you, then alternatively you

will be deported to the Ukraine.

The IJ then notified Bakarian of various options that he

might pursue to seek a waiver of removal. The IJ set the

next hearing for September 27, 2005, on Bakarian’s application to transfer his case to Los Angeles, his eligibility

for waiver of removal under Section 212(c) of the INA, and

whether his eligibility for cancellation of removal “is

going to be held.”
6 No. 06-3228

On September 27, 2005, the IJ reconvened Bakarian’s

hearing. The IJ noted that the government had presented

two immigrant visas for Bakarian: one dated March 5,

1990, and a second dated May 25, 1993. Bakarian stated

that he got a stamp in his passport from the United States

embassy in Moscow in August 1989 and that passport had

been stolen. In response to the IJ’s query, Bakarian stated

that he did not remember when he came into the United

States. Bakarian did acknowledge that the document

stating that the first time he entered the United States

in 1990 was right, but stated that he came as a visitor in

1987 staying for six or seven months. Bakarian testified

that he then went back to the Soviet Union to finish

some business there for two months and then returned

to the United States as a visitor for another six months.

(He had not testified to these departures at the prior

hearing nor listed them on his application for cancellation of removal.) Bakarian stated that he left the United

States again in 1989 to go back the Soviet Union for a

month and while he was there he got a permanent resident

visa after his father, who was living in the United States,

applied for one for him.

Bakarian stated that from 1990, he stayed in the United

States until 1992, at which time he returned to Russia

for his grandmother’s funeral. Bakarian then came back to

the United States in May 1993. The IJ noted that on his

application Bakarian did not list the various departures

about which he testified at the hearings. When the IJ

inquired about their absence from the form, Bakarian

stated that his English was not so good, and the IJ rescheduled the hearing for a time when a Russian interpreter

could be present to assist Bakarian.
No. 06-3228 7

Bakarian again appeared before the IJ on November 22,

2005, and this time an interpreter was present. The IJ

reviewed the documentary evidence with Bakarian, which

included documents relating to his four criminal convictions, two immigrant visas, his application for removal,

and an affidavit from his father. (Bakarian’s father’s

affidavit stated that Bakarian “is in fact a Permanent

Resident of the United States of America since 1989.”)

There was a visa issued on January 18, 1990, which was

stamped on March 3, 1990, designating that Bakarian

was a permanent resident. The IJ rejected Bakarian’s

contention that a separate faxed form indicated that

Bakarian entered the United States as a permanent

resident in 1989, particularly in light of the January 18,

1990 application date of immigrant visa. Bakarian stated

that he entered this country five to six times, including

in 2000 and in 2002; 2002 was the last time he entered the

United States before removal proceedings commenced.

Bakarian testified that he first came to the United States in

1987 and his later returns were in 1989, 1992 or 1993, and

1994. While he was in Russia in 1992 (when Bakarian

contends that his documents were stolen), his father

filed a document on April 10, 1992, which listed

Bakarian’s address as Odessa, Ukraine.

At the hearing, the IJ concluded that there was no

evidence to substantiate Bakarian’s claim that he had

entered the United States as permanent resident in 1989,

but found that Bakarian assumed that status in

1990. Moreover, the IJ noted that Bakarian had some

significant absences from the United States since 1990: a

year from 1992 to 1993, a month and a half in 1994, several
8 No. 06-3228

months in 2000, and several months in 2002. The IJ noted

that Bakarian had been a permanent resident for more

than five years and continued, “You also have to establish that you have been continuously physically present

in the United States for seven years after a lawful admission to the United States . . . and that date that that ends

would be the date that you committed an offense

which would subject you to being removed from the

United States.” After reviewing his Los Angeles convictions, the latest being September 18, 1996, the IJ determined

that was the cut-off date of his permanent residence

period. Because he found that Bakarian’s status as a

permanent resident did not commence until March 1990,

the IJ concluded that Bakarian could not “establish seven

years’ continuous physical presence, and therefore,

cannot establish that [he was] statutorily eligible for

cancellation of removal.”

 The IJ proceeded to explain other forms of relief that

might be available to Bakarian after he indicated that

his father was going to file a visa petition on his behalf.

The IJ scheduled another hearing which was held on

December 14, 2005. When Bakarian appeared for the

December 14 hearing, his father had not yet filed a subsequent visa petition, and the IJ closed the hearing.

On April 10, 2006, the IJ issued a written decision and

order. In his order, the IJ stated, “In the instant case, the

respondent would satisfy the continuous residence requirement [ ] if he establishes that he resided in the

United States continuously for 7 years after having been

admitted in any status.” The IJ noted that he previously
No. 06-3228 9

found that Bakarian’s three theft convictions in 1996

constituted crimes involving moral turpitude, thereby

ending Bakarian’s continuous residence on August 8,

1996, the date of the second theft. The IJ continued, “[i]f the

offense was committed within 7 years of respondent’s

admission to the United States, the respondent cannot

establish the required continuous residence.”

In his order, the IJ rejected Bakarian’s position that his

continuous residence began in 1987 when he first visited,

stating “[a]ccording to his testimony, respondent went

back and forth to the USSR several times for months at a

time and did not come to reside in the United States until

1990.” The IJ also rejected Bakarian’s contention that he

became a lawful permanent resident in 1989 because

the documentary evidence listed the date as March 5,

1990, and Bakarian’s father’s visa application for him

was dated November 1989. The IJ ultimately found that

Bakarian’s continuous residence did not begin until 1993

because Bakarian resided in Russia in 1992 and 1993.

However, even crediting Bakarian with his continuous

residence commencing in March 1990, the IJ concluded

that Bakarian failed to meet the seven-year continuous

residence requirement because the period ended on

August 8, 1996.

The IJ also concluded that Bakarian was not eligible for

a waiver of removal pursuant to Section 212(c) of the INA

because he had entered a guilty plea after Section 212(c)

had been repealed. The IJ also addressed Bakarian’s

application for waiver of removal pursuant to § 212(h) of

the INA as a son of a United States citizen “who can
10 No. 06-3228

establish that his removal would result in extreme hardship to [his father] and that the relief is warranted as a

matter of discretion.” The IJ denied the waiver because

Bakarian did not have the requisite approved visa petition, even after the IJ had granted Bakarian a continuance and gave him specific instructions on what he

needed to do in order to be eligible for a waiver under

§ 212(h).

Bakarian appealed to the BIA arguing that his 1996

convictions did not constitute crimes involving moral

turpitude, and that he had resided in the United States in

excess of seven years, thereby qualifying him for cancellation of his 2003 convictions as well as waiver of his 1996

convictions. The BIA rejected Bakarian’s arguments. It

found that his 1996 convictions were crimes involving

moral turpitude and agreed with the IJ that Bakarian had

failed to establish continual residence for seven years.

Bakarian also asserted that the IJ violated his right to due

process of law. In response, the BIA concluded that

Bakarian did not show that his hearing was not fairly

conducted. Accordingly, the BIA dismissed Bakarian’s

appeal, and Bakarian now petitions this court for review.

II.

On appeal, Bakarian contends that the IJ erred in applying the continuous physical presence standard to his case

and failing to consider Bakarian’s entry as a non-immigrant

in 1987 in calculating his period of continuous residence.

“When the BIA adopts and supplements the IJ’s reasoning,

we review the IJ’s decision as supplemented by the BIA.”
No. 06-3228 11

BinRashed v. Gonzales, 502 F.3d 666, 670 (7th Cir. 2007)

(citation omitted). We will affirm the BIA’s decision if it

is “supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Id. (citation

omitted). We may not reverse simply because we would

have decided the case differently. Margos v. Gonzales, 443

F.3d 593, 597 (7th Cir. 2006) (citations omitted). Instead,

we will reverse only if the evidence compels a contrary

conclusion. Youkhana v. Gonzales, 460 F.3d 927, 931 (7th

Cir. 2006) (citation omitted). This court “may review a

discretionary decision—such as the denial of a request for

an adjustment of status or a denial of a waiver of inadmissibility—only where the petition raises ‘constitutional

claims or questions of law.’” Khan v. Mukasey, 517 F.3d 513,

517 (7th Cir. 2008) (citation omitted).

Pursuant to 8 U.S.C. § 1229b(a), it is within the Attorney

General’s discretion to:

cancel removal in the case of an alien who is admissible

or deportable from the United States if the alien—

(1) has been an alien lawfully admitted for permanent

residence for not less than 5 years, (2) has resided in

the United States continuously for 7 years after having

been admitted in any status, and (3) has not been

convicted of any aggravated felony.

The BIA has interpreted “the plain meaning of the statutory language [to mean that] the respondent’s period of

residence after his admission as a nonimmigrant . . . may

be considered in calculating the period of continuous

residence for purposes of [this] section”. In re Blancas-Lara,

23 I. & N. Dec. 458, 459 (BIA 2002). A period of continuous
12 No. 06-3228

The IJ found that Bakarian’s California and Wisconsin 1

convictions were crimes of moral turpitude, and Bakarian

does not appeal that conclusion. Therefore, we need not consider it. 

residence is deemed to end either when the alien receives

notice to appear or commits an offense that would make

him inadmissible or removable under certain sections of

the immigration code. 8 U.S.C. § 1229b(d)(1). Offenses that

render an alien removable include crimes of moral turpitude. Id. & 8 U.S.C. § 1182. The Attorney General also has 1

discretion to cancel removal for a non-permanent resident,

but only if, among other things, that individual has been

“physically present in the United States for a continuous

period.” 8 U.S.C. § 1229b(b)(1)(A); see also 8 U.S.C.

§ 1229b(d)(2) (“An alien shall be considered to have failed

to maintain continual physical presence in the United

States . . . if the alien has departed from the United States

for any period in excess of 90 days or for any periods in

the aggregate exceeding 180 days.”). Because Bakarian

had permanent residence status as of 1990, which was

more than five years, it was his burden to establish that he

had continuously resided in the United States for seven

years after his first admission in order to establish eligibility for relief from removal. See 8 C.F.R. § 1240.8(d).

Bakarian notes, and the government concedes, that the IJ

in this case repeatedly stated during the hearing that

Bakarian had to establish that he had been “continuously

physically present in the United States for seven years after

a lawful admission to the United States.” That is not the
No. 06-3228 13

For instance, the IJ stated that Bakarian “would satisfy the 2

continuous residence requirement under section 240A(a)(2) of the

Act if he establishes that he has resided in the United States

continuously for 7 years after having been admitted in any

status.” (Emphasis added.) The IJ continued by stating that

Bakarian’s “continuous residence ended on August 8, 1996.”

(Emphasis added.) The IJ noted that “a great deal of testimony

was taken to determine exactly when respondent’s continuous residence began.” (Emphasis added.)

correct legal standard. However, in issuing his final,

written order, the IJ did not once mention continuous

physical presence. Rather, throughout his order, the IJ cited

and applied the proper standard: continuous residence.2

In determining the period of continuous residence, the IJ

also considered Bakarian’s admission into the United

States in 1987 as a visitor, but found that Bakarian went

back and forth to the Soviet Union several times for

extended periods of time between 1987 and March 5, 1990,

when he entered the United States as a permanent resident.

Bakarian’s own varied, and often confusing, testimony

supports the finding that he went back and forth between

the United States and the Soviet Union for extended

periods after his initial admittance to the United States in

1987, thereby supporting a conclusion that at the earliest,

Bakarian did not begin a period of continuous residence

until 1990. Bakarian presented no evidence showing that,

in light of his numerous trips back and forth to the

Soviet Union, he had established a residence here in the

United States upon his arrival as a visitor. The IJ ultimately

concluded that Bakarian did not commence his period of
14 No. 06-3228

continuous residence until 1993, but noted that even if he

were to credit Bakarian with starting the period of continuous residence on March 5, 1990, when he first became a

permanent resident, Bakarian “still failed to meet the seven

year continuous residence requirement.” Therefore,

considering the record as a whole, the IJ applied the proper

legal standard and considered Bakarian’s 1987 entrance as

a visitor when calculating Bakarian’s period of continuous

residence.

Bakarian also argues that the IJ erred in applying the

stop-time rule, i.e., stopping the time for continuous

residence at the time that he committed his theft offenses

in 1996, to his case. When the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (“IIRIRA”)

became effective on April 1, 1997, a lawful permanent

resident’s period of continuous residence ended at the time

the alien committed certain crimes for which he was

convicted or received a Notice to Appeal for removal

proceedings, whichever was first. See 8 U.S.C. § 1229b(a).

Bakarian asserts that the IJ impermissibly applied the stoptime rule, because he contends that the application of the

statutory change to him would have an impermissible

retroactive effect. In response, the government asserts that

this court does not have jurisdiction over this argument

because Bakarian failed to exhaust his administrative

remedies by not raising this before the BIA.

In order for this court to have jurisdiction over an issue,

the petitioner must first exhaust his administrative remedies by raising it before the BIA. See 8 U.S.C. § 1252(d)(1).

However, there is an exception to the exhaustion require-
No. 06-3228 15

ment in instances where “appealing through the administrative process would be futile because the agency is biased

or has predetermined the issue.” Didier v. INS, 301 F.3d

492, 498 (7th Cir. 2002).

Bakarian acknowledges that he did not raise this issue

before the BIA, but contends that to have done so would

have been futile because the BIA had already determined

that the stop-time rule applied retroactively, citing Matter

of Perez, 22 I. & N. Dec. 689, 691 (BIA 1999) and Matter of

Robles-Urrea, 24 I. & N. Dec. 22 (BIA 2006). In Perez, the BIA

concluded that the stop-time rule applied retroactively.

However, after the BIA issued its opinion in Perez, the

Supreme Court decided INS v. St. Cyr, 533 U.S. 289 (2001),

which held that the repeal of certain discretionary relief

from deportation for aliens convicted of aggravated

felonies did not apply retroactively, thereby presenting a

basis on which to challenge Perez. In Matter of Robles-Urrea,

the BIA addressed such a challenge to the stop-time rule,

but concluded that it could be applied to crimes that

predated the IIRIRA. While the BIA did determine the

issue of retroactivity of the stop-time rule in Robles-Urrea,

Bakarian’s citations do not support his position of futility.

Perez was decided before St. Cyr, and Robles-Urrea was not

issued by the BIA until September 27, 2006, which was two

months after the BIA issued its opinion in Bakarian’s case

on July 21, 2006. The BIA had not decided this issue prior

to Bakarian’s appeal to the BIA; thus it would not have

been futile for Bakarian to raise it before the BIA. Therefore, Bakarian is not excused from the exhaustion requirement, and because he failed to exhaust this issue, we

do not have jurisdiction to review this claim.
16 No. 06-3228

Bakarian also asserts that even if 1996 is established as

the end period for his continuous residence, he can establish a second period of continuous residence after that

date. We need not decide whether the stop-time rule

allows for the accrual of a new period of residence because

even if the clock was reset in 1996, Bakarian cannot establish a second period of seven years of continuous residence. Bakarian testified that he re-entered the United

States in 2000 after committing the 1996 crimes. Because

Bakarian was a permanent lawful resident who committed

an offense listed in 8 U.S.C. § 1182(a)(2) and had not been

granted a waiver of inadmissibility or cancellation of

removal, his admission in 2000 would be the start date for

a new period of continuous residence. See 8 U.S.C.

§§ 1101(a)(13)(A), (C), & (C)(v) and 1229b(a)(2) (providing

that periods of continuous residence begin after “having

been admitted in any status.”). This new period of residence would end either on September 5, 2003, when

Bakarian committed forgery and his fourth crime of moral

turpitude or on June 9, 2004, when he was served with a

Notice to Appear before the IJ. Therefore, even if we

were to decide whether Bakarian is entitled to a second

period of continuous residence, Bakarian could not establish the requisite seven years of continuous residence to

be eligible for cancellation of removal.

Bakarian argues that he is entitled to waiver of inadmissibility under the former § 212(c) of the Immigration and

Nationality Act because he pleaded guilty to the 1996

crimes prior to the effective date of the INA’s amendment.

Specifically, Bakarian contends that a § 212(c) waiver

would nullify his 1996 convictions, leaving him with
No. 06-3228 17

only one crime of moral turpitude for purposes of

removability in 2003. Former Section 212(c) of the INA

afforded the Attorney General with discretion to waive

certain grounds of inadmissibility for lawful permanent

residents, who temporarily proceed abroad voluntarily

and not under a deportation order, and who are returning to a lawful, unrelinquished domicile of seven

consecutive years. Bakarian is correct in asserting that a

alien who pleaded guilty prior to the amendment of the

INA is entitled to seek waiver of inadmissibility pursuant

to the former § 212(c) of the INA, and, therefore, he could

have sought a § 212(c) waiver for his 1996 convictions. INS

v. St. Cyr, 533 U.S. 289, 326 (2001). However, Bakarian’s

2003 guilty plea fell outside of the time frame in which

he could seek a waiver of inadmissibility afforded in

§ 212(c) of the INA, and this conviction could be used in

conjunction with one of his 1996 convictions as a basis for

removability under 8 U.S.C. § 1227. See Matter of Balderas,

20 I. & N. Dec. 389, 391-93 (BIA 1991) (holding that a

conviction which has previously been relied upon in a

charge of deportability, but terminated by a grant of relief

under § 212(c), is not expunged or pardoned and may be

later alleged as one of the two crimes involving moral

turpitude in a second proceeding). Furthermore, the IJ

properly concluded, Bakarian “could not have had any

reliance on 212(c) eligibility in 2003 [when he pleaded

guilty to forgery] as that section had already been repealed.” Therefore, the IJ did not err in denying Bakarian

relief under the former § 212(c) of the INA.

Finally, Bakarian also contends that his due process

rights were violated. Specifically, Bakarian asserts that he
18 No. 06-3228

was not allowed an adequate opportunity to apply for

adjustment of status and waiver and precluded from

having a reasonable opportunity for his father to testify at

his hearing. An alien must have a liberty or property

interest in the proceeding to raise a due process claim, and

“a petitioner has no liberty or property interest in obtaining purely discretionary relief.” Hamdan v. Gonzales, 425

F.3d 1051, 1061 (7th Cir. 2005) (quoting Dave v. Ashcroft, 363

F.3d 649, 653 (7th Cir. 2004)). The relief Bakarian sought,

cancellation of removal or a waiver of inadmissability, was

discretionary. Therefore, Bakarian did not have a due

process interest in his proceedings and cannot raise a

due process claim.

Even if Bakarian had a due process interest, due process

requires that an alien have a meaningful opportunity to

present evidence at his hearing before the IJ. However,

“[w]e have cautioned against leading with an openended due process argument and advised that aliens

should stick with claims based on the statutes and regulations unless they believe that one of these rules violated

the Constitution or that lacunae in the rules have been

filled with defective procedures.” Pronsivakulchai v. Gonzales, 461 F.3d 903, 907 (7th Cir. 2006) (internal citation and

quotations omitted). “Aliens have a statutory and regulatory right to a reasonable opportunity to present evidence.”

Id. (citation omitted).

In this case, the IJ granted Bakarian a continuance

specifically to provide Bakarian with the opportunity to

apply for a waiver and adjustment of status. Bakarian

only presented a one-page amendment to his application
No. 06-3228 19

for cancellation of removal, but did not file the appropriate

application. By granting Bakarian a continuance, the IJ

provided Bakarian more than the required statutory

protections and did not violate the due process clause.

Bakarian also contends that he was deprived of his ability

to present his only witness, his father who was paralyzed

in California and unable to travel, by the IJ’s refusal to

transfer the hearing to Los Angeles. Bakarian, though,

does not assert what evidence, if any, that his father

would have provided beyond what was presented in his

father’s affidavit, which the IJ accepted as evidence.

Without prejudice, there is no due process violation.

Firmansjah v. Gonzales, 424 F.3d 598, 604 (7th Cir. 2005).

Accordingly, the IJ did not violate Bakarian’s due process

rights.

III.

The IJ applied the proper standard and considered

Bakarian’s admittance in 1987 as a visitor in denying

Bakarian’s application for cancellation of removal, and

we do not have jurisdiction over Bakarian’s claim that

application of the stop-time rule to his case has an impermissible retroactive effect. Bakarian also is not entitled to

relief under § 212(c) of the INA. Finally, the IJ did not

violate Bakarian’s due process rights. We DENY the

petition for review.

9-4-08