NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEMYAN AGUIAR, AKA Aguiar Demyan, 

AKA Demyan Unknown, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 19-70888 

Agency No. A073-173-921 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted July 15, 2022**

Pasadena, California

Before: BENNETT and COLLINS, Circuit Judges, and FOOTE,*** District Judge.

Petitioner Demyan Aguiar, a Brazilian citizen, petitions for review of the 

order of the Board of Immigration Appeals (“BIA”) denying his request for 

remand to pursue adjustment of status and upholding the decision of the 

Immigration Judge (“IJ”) that found him ineligible for cancellation of removal and 

* This disposition is not appropriate for publication and is not precedent except as 

provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes that this case is suitable for decision without 

oral argument. See FED. R. APP. P. 34(a)(2)(C).

*** The Honorable Elizabeth E. Foote, United States District Judge for the Western 

District of Louisiana, sitting by designation.

FILED

MAR 15 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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that ordered him removed to Brazil. We have jurisdiction under § 242 of the 

Immigration and Nationality Act, 8 U.S.C. § 1252, and we deny in part and dismiss 

in part the petition.

1. During his removal proceedings, Aguiar took the first step towards 

attempting to adjust his status to that of a lawful permanent resident by having his 

U.S. citizen wife file an I-130 petition with U.S. Citizenship and Immigration 

Services (“USCIS”). After granting Aguiar several continuances while awaiting 

USCIS’s decision on the I-130 petition, the IJ ultimately declined to wait any 

further, proceeded with a removal hearing in January 2018, and ordered Aguiar to 

be removed. The IJ did so after concluding that, even if the I-130 petition was 

granted, Aguiar had made an insufficient showing that he would merit a favorable 

exercise of discretion so as to be granted adjustment of status. After Aguiar 

appealed to the BIA, the I-130 petition was granted, and Aguiar then moved to 

remand the matter to the IJ. However, the BIA concluded that Aguiar had “not 

demonstrated eligibility for adjustment of status in the exercise of discretion,” and 

it therefore both denied the motion for remand and upheld the IJ’s denial of a 

continuance of the removal proceedings.

The standards governing a motion to remand “are for all practical purposes 

the same” as for a motion to reopen, see Rodriguez v. INS, 841 F.2d 865, 867 (9th 

Cir. 1987), and the BIA may properly deny such a motion if, inter alia, “the 
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movant would not be entitled to the discretionary grant of relief which he sought.” 

Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (citation omitted). Even

assuming Aguiar would be eligible for discretionary adjustment of status, 8 U.S.C. 

§ 1255(a),1 we find no basis to set aside the BIA’s determination that Aguiar failed 

to show that he merited a favorable exercise of discretion. The BIA applied the 

correct legal standard in exercising that discretion, and it considered the relevant 

factors. Specifically, the BIA concluded that Aguiar’s criminal history, coupled 

with his failure to take advantage of rehabilitative opportunities, ultimately 

weighed against a favorable exercise of discretion. Aguiar contends that the BIA 

failed adequately to consider the positive factors supporting adjustment of status, 

but we disagree. The BIA expressly considered Aguiar’s claims of remorse, his 

explanations of his criminal history, and the documents submitted with his

appellate brief and motion to remand, which detailed the positive factors on which 

Aguiar relied. The BIA’s explanation was sufficient. See Agonafer v. Sessions, 

859 F.3d 1198, 1206 (9th Cir. 2017) (noting that the agency is not required to 

“write an exegesis on every contention” (citation omitted)).

For similar reasons, the BIA properly upheld the IJ’s denial of a continuance 

to await a decision on the I-130 application. An IJ may properly deny a 

1 We therefore do not address the parties’ dispute over whether the BIA and the IJ 

correctly concluded, in the alternative, that Aguiar had accrued unlawful presence 

in the U.S. that would render him ineligible for adjustment of status. 
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continuance to await a decision on an application if the IJ determines that, even if 

the application is granted and the alien is therefore eligible for discretionary relief, 

the relevant factors do not support a favorable exercise of that discretion. Matter 

of Hashmi, 24 I. & N. Dec. 785, 790, 793 (BIA 2009). As the BIA recognized, the 

IJ noted many of the same negative factors that had been identified by the BIA. 

The IJ also considered relevant positive discretionary factors, including Aguiar’s 

marriage to a U.S. citizen, the fact that Aguiar attended school in the U.S., and the 

time Aguiar spent in this country. The BIA properly upheld the IJ’s denial of a 

continuance on this basis. 

2. The agency properly concluded that Aguilar was not eligible for 

cancellation of removal. To be eligible for that relief, an alien must be “physically 

present in the United States for a continuous period of not less than 10 years 

immediately preceding the date of such application.” 8 U.S.C. § 1229b(b)(1)(A). 

Because Aguiar applied for cancellation of removal on January 12, 2018, he had to 

show his continuous presence in the U.S. since January 2008. But Aguiar 

informed the IJ that he had left the U.S. for Brazil “before 2010” and did not return 

to the U.S. until “May 2010.” Because he was outside the U.S. for a “period in 

excess of 90 days” within the relevant 10-year timeframe, the agency properly 

concluded that he was ineligible for cancellation of removal. See 8 U.S.C. 

§ 1229b(d)(2). 
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3. We lack jurisdiction to consider Aguiar’s claims that the IJ violated his 

due process rights by failing adequately to develop the record and to advise him of 

the relevant procedural and substantive requirements for various forms of relief,

because Aguiar did not raise them before the BIA. Had these claims been raised, 

the BIA would not have been “powerless to grant the relief requested,” Carr v. 

Saul, 141 S. Ct. 1352, 1361 (2021), and therefore Aguiar was required to present 

those claims to the BIA before raising them here. See 8 U.S.C. § 1252(d)(1) 

(stating that we may review a challenge to a final order of removal only if “the 

alien has exhausted all administrative remedies available to the alien as of right”). 

Even construing liberally his pro se papers before the BIA, see Agyeman v. INS, 

296 F.3d 871, 878 (9th Cir. 2002), Aguiar failed to raise these due process claims 

before the BIA. We therefore lack jurisdiction to consider them. See Barron v. 

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). 

The petition for review is DENIED IN PART AND DISMISSED IN 

PART.