Robleto-Pastora v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JORGE FILADELFO ROBLETO-PASTORA, 

Petitioner,

No. 07-71492

v.

 Agency No.

ERIC H. HOLDER JR., Attorney A027-447-476

General,

Respondent.



JORGE FILADELFO ROBLETO-PASTORA,  No. 07-72091

Petitioner, Agency No.

v.

 A027-447-476

ERIC H. HOLDER JR., Attorney ORDER AND

General, AMENDED

Respondent.

 OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

December 10, 2008—Seattle, Washington

Filed May 27, 2009

Amended January 11, 2010

Before: Robert R. Beezer, Ronald M. Gould and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

783

ROBLETO-PASTORA v. HOLDER 787

COUNSEL

Philip James Smith, Nelson Smith, LLP, Portland, Oregon,

for the petitioner.

788 ROBLETO-PASTORA v. HOLDER

Gregory G. Katsas, Richard M. Evans, and Paul Fiorino,

United States Department of Justice, Washington, D.C., for

the respondent.

ORDER

The opinion filed May 27, 2009, and published at 567 F.3d

437, is hereby amended. The amended opinion is filed con-

currently with this order. With the amendments, the panel

votes to deny the petition for rehearing. Judge Gould and

Judge Callahan vote to deny the petition for rehearing en

banc, and Judge Beezer so recommends.

The full court was advised of the suggestion for rehearing

en banc and no judge requested a vote on whether to rehear

the matter en banc. Fed. R. App. P. 35. The petition for

rehearing and petition for rehearing en banc are hereby

DENIED. The panel will entertain any additional petitions for

rehearing or rehearing en banc that are filed in accordance

with the applicable rules.

SO ORDERED.

OPINION

CALLAHAN, Circuit Judge:

Jorge Filadelfo Robleto-Pastora (“Robleto” or “petitioner”),

born June 5, 1960, is a native and citizen of Nicaragua who

entered the United States in 1984, was granted asylum, then

adjusted status to that of lawful permanent resident (some-

times referred to herein as “LPR”) in 1988. Following his

2005 forgery conviction in Oregon state court, petitioner was

ordered removed as an aggravated felon pursuant to sections

237(a)(2)(A)(iii) and 101(a)(43)(R) of the Immigration and

ROBLETO-PASTORA v. HOLDER 789

Nationality Act (“INA”). 8 U.S.C. §§ 1227(a)(2)(A)(iii),

1101(a)(43)(R). He petitions for review of the removal order,

and the denial of his motion to reconsider that order. We deny

both petitions.

I.

A. Factual Background

Robleto and several of his family members left Nicaragua

in the mid-1980s when the Sandinistas rose to power. In 1986,

he and other family members were granted asylum pursuant

to section 208 of the INA. See 8 U.S.C. § 1158. On October

2, 1988, he adjusted his status to lawful permanent resident

pursuant to section 209(b). 8 U.S.C. § 1159(b).

In October 2004, Robleto was arrested and charged in Ore-

gon state court with forgery-related offenses involving the

distribution of false identifications. On July 29, 2005, he pled

no contest to six counts of first degree forgery, and was sen-

tenced to thirteen months in prison. He was released from

prison after eleven months, and then charged with removabil-

ity under section 237(a)(2)(A)(iii) of the INA. See 8 U.S.C.

§ 1227(a)(2)(A)(iii).

During the removal proceedings, Robleto sought relief

from removal by (1) submitting a new application for asylum,

(2) applying for withholding of removal under section

241(b)(3) of the INA and the Convention Against Torture

(“CAT”), and (3) seeking to adjust his status under section

209(b) of the INA in connection with a waiver of inadmissi-

bility under section 209(c). 8 U.S.C. § 1159(b)-(c).

On August 23, 2006, an Immigration Judge (“IJ”) ruled that

Robleto was ineligible to apply for adjustment of status under

section 209(b) because that section was available only to

asylees, and not lawful permanent residents such as Robleto.

790 ROBLETO-PASTORA v. HOLDER

Following several continuances, Robleto appeared before

an IJ on December 5, 2006. He testified that his father and

brother were employees in the Somoza government, and that

he worked as a mechanic in the government’s “General Cus-

toms” division. All three of them lost their jobs when the

Sandinistas took control of the government. Robleto testified

that he was unable to find gainful employment after he was

fired, but admitted that he did not look for work in the private

sector.

Other than losing his job, Robleto did not allege that he suf-

fered actual persecution by the Sandinistas. Robleto’s mother

testified generally that the Sandinistas harassed the entire

family due to their association with the Somoza government,

but she failed to identify any specific persecution suffered by

Robleto. Robleto’s brother, Sergio, however, was detained by

the Sandinistas for several hours in 1981 based on suspicions

that he was involved with a school bombing. Another brother,

Alvaro, was also detained by the Sandinistas in 1982, and was

beaten and tortured. Robleto further testified that he is related

to Eden Pastora, a famous anti-Sandinista leader.

Noting the 2006 reelection of Sandinista leader, Daniel

Ortega, Robleto testified that he feared returning to Nicara-

gua. He alleged that the government would think he was an

American spy, but cited no basis for this fear. He also failed

to produce evidence that the current democratically-elected

administration was persecuting former Somoza-government

employees or members of his family. In fact, he testified that

several aunts and uncles from both sides of his family, and at

least one grandparent, still live in Nicaragua, and his mother

testified that she and her husband had gone back to visit since

leaving in the 1980s.

Citing, among other things, Robleto’s aggravated felony,

the IJ denied Robleto’s application for asylum.1 The IJ also

1

The IJ concluded that Robleto had obtained asylum derivatively

through his father. While it is unclear from the record whether his grant

ROBLETO-PASTORA v. HOLDER 791

denied his application for withholding based on his failure to

establish past persecution or a well-founded fear of persecu-

tion, and ordered him removed to Nicaragua.

B. BIA Decision

On March 27, 2007, the BIA dismissed Robleto’s appeal

from the IJ’s decision finding him removable as charged and

denying his applications for relief. The BIA held that the IJ

properly pretermitted Robleto’s new asylum application based

on his aggravated felony conviction, and concluded that

Robleto failed to establish that he was entitled to withholding

of removal. The BIA rejected Robleto’s contentions that he

retained the status of an asylee, and that such status entitled

him to a presumption of a well-founded fear of persecution.

Noting that his original asylum application contained no alle-

gation of past persecution, the BIA held that a prior grant of

asylum was insufficient to establish the presumption. The

BIA noted that Robleto presented no evidence that he would

be of any interest to the current administration, or that it oth-

erwise persecuted former Somoza-government employees or

relatives of former government employees. Accordingly, the

BIA concluded that Robleto failed to establish a likelihood of

future persecution in Nicaragua.

The BIA also concluded that Robleto’s status was that of

a lawful permanent resident, not an asylee, and that he

retained that status until a final order of removal. Thus, it con-

cluded that Robleto’s request to apply for adjustment of status

under section 209(b) in connection with a waiver of inadmis-

sibility under section 209(c) “made no sense.” Finally, the

BIA concluded that Robleto’s due process rights were not

violated when the IJ denied his request for a continuance to

of asylum was primary or derivative, it was nonetheless his burden to

establish past persecution or a well-founded fear of future persecution. See

Unuakhaulu v. Gonzales, 416 F.3d 931, 937-39 (9th Cir. 2005).

792 ROBLETO-PASTORA v. HOLDER

obtain his immigration records because he failed to establish

prejudice resulting from the denial.

On April 20, 2007, Robleto filed a motion for reconsidera-

tion with respect to the BIA’s determination that he was ineli-

gible to apply for adjustment of status under section 209(b).

On May 3, 2007, the BIA denied Robleto’s motion to recon-

sider. Robleto filed timely petitions for review of that order

and the March 27, 2007, order dismissing his appeal.2

II.

A. Jurisdiction and Standards of Review

We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to

review final orders of removal involving “constitutional

claims or questions of law,” such as the ones presented in

Robleto’s petitions. See Morales-Alegria v. Gonzales, 449

F.3d 1051, 1053 (9th Cir. 2006). Where the BIA conducts its

own review of the evidence and law, “our review is limited

to the BIA’s decision, except to the extent the IJ’s opinion is

expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957

(9th Cir. 2006) (citation and internal quotation marks omit-

ted).

We review the BIA’s determination of purely legal ques-

tions de novo. Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th

Cir. 2004). We may reverse the BIA’s determination that an

applicant is ineligible for asylum or withholding of removal

“only if the evidence presented by [the applicant] is such that

a reasonable fact-finder would be compelled to conclude that

the requisite fear of persecution existed.” Khourassany v. INS,

208 F.3d 1096, 1100 (9th Cir. 2000); see also INS v. Elias-

Zacarias, 502 U.S. 478, 481 n.1 (1992) (noting that “[t]o

2

Petitioner presents no independent grounds challenging the order deny-

ing his motion to reconsider. Accordingly, we deny his petition for review

of that order for the reasons set forth herein.

ROBLETO-PASTORA v. HOLDER 793

reverse the BIA finding we must find that the evidence not

only supports that conclusion, but compels it”) (emphasis in

original).

B. Application for Asylum and Withholding of Removal

We begin with the most straightforward of petitioner’s

claims for relief: his applications for asylum and withholding

of removal under the INA and the CAT. “An application for

asylum under 8 U.S.C. § 1158 is generally considered an

application for withholding of removal under 8 U.S.C.

§ 1231(b)(3).” Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th

Cir. 2006) (citing 8 C.F.R. § 1208.3(b)). For asylum applica-

tions filed after April 1, 1997, an applicant is also considered

for eligibility for withholding of removal under the CAT. See

8 C.F.R. § 208.13(c)(1).

[1] “An alien is eligible for asylum relief if she can prove

that she is a refugee, which she can establish by proving either

actual past persecution or a well-founded fear of future perse-

cution” on account of race, religion, nationality, membership

in a particular social group, or political opinion. Lolong v.

Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007); 8 U.S.C.

§ 1101(a)(42)(A). The agent(s) of persecution must be “the

government or . . . persons or organizations which the govern-

ment is unable or unwilling to control.” Reyes-Reyes v. Ash-

croft, 384 F.3d 782, 788 (9th Cir. 2004) (internal quotation

marks omitted). “Once an applicant demonstrates past perse-

cution, there is a presumption of a well-founded fear of future

persecution.” Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th

Cir. 2000).

[2] Robleto argues that he is eligible for asylum and with-

holding based on his previous grant of asylum, which he

asserts entitles him to a presumption of a well-founded fear of

future persecution. However, even assuming that Robleto’s

previous grant of asylum was based on actual past persecu-

tion, the BIA correctly determined that he is currently ineligi-

794 ROBLETO-PASTORA v. HOLDER

ble for asylum due to his aggravated felony conviction.3

Rendon v. Mukasey, 520 F.3d 967, 973 (9th Cir. 2008) (recog-

nizing that an alien convicted of an aggravated felony is ineli-

gible for asylum) (citing U.S.C. §§ 1158(b)(2)(A)(ii),

(b)(2)(B)(I)); see also 8 C.F.R. § 1208.13(c)(1) (providing

that for applications filed after April 1, 1997, an applicant

“shall not qualify for asylum” if he has been convicted of an

aggravated felony) (emphasis added).

[3] While Robleto’s conviction precludes his current asy-

lum application, it does not preclude his application for with-

holding of removal under section 241(b)(3) of the INA. 8

U.S.C. § 1231(b)(3).4 “ ‘To qualify for withholding of

removal, an alien must demonstrate that it is more likely than

not that he would be subject to persecution on one of the spec-

ified grounds.’ ” Zehatye, 453 F.3d at 1190 (quoting Al-Harbi

v. INS, 242 F.3d 882, 888 (9th Cir. 2001)). The “standard for

withholding of removal is more stringent than the well-

founded fear standard governing asylum,” and “requires

objective evidence that it is more likely than not that the alien

will be subject to persecution upon deportation.” Id. (citations

and quotation marks omitted). While a showing of past perse-

cution entitles an alien to a presumption of eligibility for with-

holding of removal, it is the alien’s burden to establish such

persecution. Fedunyak v. Gonzales, 477 F.3d 1126, 1130 (9th

Cir. 2007); Unuakhaulu, 416 F.3d at 938-39.

3

Robleto does not contest that his conviction is an aggravated felony.

4

Robleto’s aggravated felony does not bar him from applying for with-

holding of removal under 8 U.S.C. § 1231(b)(3). Subsection (b)(3)(B)(ii)

provides that an alien convicted of a “particularly serious crime” is ineligi-

ble for withholding of removal. The statute authorizes the Attorney Gen-

eral to designate a crime “particularly serious” and provides that any

aggravated felony resulting in a sentence of five years or more “shall be

considered . . . a particularly serious crime.” 8 U.S.C. § 1231(b)(3)(B).

Here, Robleto’s conviction did not result in a sentence of five or more

years, and the Attorney General has not otherwise determined that his

crime is “particularly serious.”

ROBLETO-PASTORA v. HOLDER 795

The BIA determined that Robleto’s prior grant of asylum

was insufficient to establish a presumption of a well-founded

fear of future persecution based on past persecution. We

agree.

[4] Here, neither the record nor Robleto’s own testimony

establishes past persecution. While Robleto’s original asylum

application identifies incidents from the early 1980s involving

his brothers, Sergio and Alvaro, it contains no allegation that

Robleto himself was persecuted. See Prasad v. INS, 47 F.3d

336, 340 (9th Cir. 1995) (concluding that “attacks on family

members do not necessarily establish a well-founded fear of

persecution absent a pattern of persecution tied to the petition-

er[ ]”). Moreover, Robleto acknowledged during the immigra-

tion proceedings that, other than losing his job, he was not

personally targeted by the Sandinistas. Even in his 2006 appli-

cation for asylum and withholding of removal, Robleto identi-

fied no instances of persecution involving himself. Based on

Robleto’s failure to establish that his prior grant of asylum

was based on past persecution, we conclude that the BIA cor-

rectly determined that he was not entitled to a presumption of

a well-founded fear of persecution.

Furthermore, we find that the record supports the BIA’s

determination that Robleto failed to show a likelihood of

future persecution in Nicaragua. Robleto presented no evi-

dence indicating that the current administration persecutes

former employees of the Somoza government or family mem-

bers of those who opposed the Sandinistas more than twenty

years ago. Moreover, Robleto failed to present a plausible

basis for his alleged fear of returning to Nicaragua. Rather, he

testified that he thought that the current Nicaraguan adminis-

tration would think he was an American spy because he had

unsuccessfully tried to enlist in the United States Army in the

early 1990s. He did not indicate how the administration would

know this fact, or why it would lead the government to

believe he was a spy, or even that the government actually

persecutes American “spies.” Finally, he offered no evidence

796 ROBLETO-PASTORA v. HOLDER

that any family member or former government employee is

persecuted by the current Nicaraguan administration, and

indicated that several of his aunts and uncles from both sides

of his family, and at least one grandparent, still live in Nicara-

gua.

[5] Based on this record, we are not compelled to reach a

conclusion contrary to the BIA’s. See Khourassany, 208 F.3d

at 1100. Neither can we conclude that petitioner is entitled to

relief under the CAT, as there was no evidence regarding a

likelihood that Robleto would be tortured upon his return. See

Hamoui v. Ashcroft, 389 F.3d 821, 826-27 (9th Cir. 2004)

(noting that to be eligible for withholding under the CAT, the

applicant must establish that he is “more likely than not” to

be tortured upon removal). Based on the foregoing, we con-

clude that the BIA’s determination is supported by the record,

and that Robleto is not entitled to withholding from removal

under the INA or the CAT.

C. Relief under Section 209(b) and (c)

[6] Robleto asserts that he can avoid removal by “re-

adjusting” his status to that of a lawful permanent resident

under section 209(b) in connection with a waiver of inadmis-

sibility under 209(c). Section 209(b) allows an asylee to

adjust status to that of LPR, but requires that the asylee be

otherwise admissible. 8 U.S.C. § 1159(b)(5). Petitioner con-

cedes inadmissibility based on his aggravated felony convic-

tion, and seeks to overcome this barrier to adjustment through

a waiver of inadmissibility pursuant to section 209(c). Section

209(c) provides the Secretary of Homeland Security or the

Attorney General with discretion to waive inadmissibility “for

humanitarian purposes, to assure family unity, or when it is

otherwise in the public interest.” 8 U.S.C. § 1159(c).

[7] Despite having already obtained LPR status in 1988,

petitioner contends that he is eligible for relief under section

209 because his asylee status was never terminated, and that

ROBLETO-PASTORA v. HOLDER 797

he therefore holds asylee status and LPR status simultaneously.5

Without deciding and regardless of whether Robleto simulta-

neously holds asylee and LPR status, we conclude that he is

ineligible for relief from removal under section 209 of the

INA, 8 U.S.C. § 1159, and that his petition must therefore be

denied.

Section 209(b) provides as follows:

The Secretary of Homeland Security or the Attorney

General . . . may adjust to the status of an alien law-

fully admitted for permanent residence the status of

any alien granted asylum who—

(1) applies for such adjustment,

(2) has been physically present in the

United States for at least one year after

being granted asylum,

(3) continues to be a refugee within the

meaning of section 1101(a)(42)(A) of this

title or a spouse or child of such a refugee,

5

Petitioner premises his argument for relief under § 209 on the fact that

his asylum status was never formally terminated. He asserts that section

208(c)(3) of the INA and its attendant regulations require formal termina-

tion of asylum status prior to removal. Section 208(c)(3), however, simply

provides that asylum may be terminated under specific circumstances and

says nothing about formal termination proceedings. 8 U.S.C. § 1158(c)(3).

Further, in the analogous context of refugees who have obtained LPR sta-

tus, we have held that formal termination of refugee status is not a precon-

dition to removal. Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir.

2006) (noting that “regardless of whether a refugee loses refugee status

upon adjusting status to lawful permanent resident . . . the refugee may be

removed”) (citing In re Smriko, 23 I & N Dec. 836, 842 (BIA 2005)); see

also Stolaj v. Holder, 577 F.3d 651, 657 (6th Cir. 2009) (holding that for-

mal termination of asylum status was not a precondition to removing a

lawful permanent resident).

798 ROBLETO-PASTORA v. HOLDER

(4) is not firmly resettled in any foreign

country, and

(5) is admissible . . . .

8 U.S.C. § 1159(b) (emphasis added). By its own terms, sec-

tion 209(b) applies to asylees seeking to adjust status to that

of LPR, a process petitioner completed in 1988. It says noth-

ing about a lawful permanent resident “re-adjusting” his status

to that of lawful permanent resident. Nor does section 209

provide that such adjustment of status is a means to avoid

removal. Cf. Abebe v. Mukasey, 554 F.3d 1203, 1205 (9th Cir.

2009) (en banc) (construing former section 212(c) of the INA

in accordance with its plain language as only providing dis-

cretionary relief from inadmissibility — not deportation).

Petitioner cites no authority, nor could we find any, providing

that an asylee who acquires LPR status is eligible for relief

from removal under section 209.6 Morever, relevant authority

indicates that aliens retain their LPR status until a final order

of removal. See 8 C.F.R. § 1001.1(p).7 Thus, regardless of

6

Petitioner cites several BIA cases in which lawful permanent residents

were permitted to seek relief from removal by “re-adjusting” status to that

of LPR pursuant to section 245(a) of the INA in connection with section

212’s various waiver provisions. Those cases are inapposite as they con-

cern distinct statutes which apply to broad classes of aliens who have

immigrant visas immediately available. See In re Mendez-Moralez, 21 I.

& N. Dec. 296 (BIA 1996); Matter of Gabryelsky, 20 I. & N. Dec. 750

(BIA 1993). By contrast, section 209(b) is specific to asylees, and it has

never been construed to apply to asylees who have already obtained LPR

status and who merely seek to avoid removal. See In re K-A-, 23 I. & N.

Dec. 661 (BIA 2004) (concluding that an asylee could apply for relief

from removal under section 209(b) and (c) where she had not previously

acquired LPR status).

7

That section defines “[t]he term lawfully admitted for permanent resi-

dence” as “the status of having been lawfully accorded the privilege of

residing permanently in the United States as an immigrant in accordance

with the immigration laws, such status not having changed. Such status

terminates upon entry of a final administrative order of exclusion, depor-

tation, removal, or rescission.” (emphasis added).

ROBLETO-PASTORA v. HOLDER 799

whether petitioner retained his asylee status simultaneously

with his LPR status, there is no dispute that he remained an

LPR until a final order of removal. Accordingly, as an asylee

who already acquired LPR status, section 209(b) does not

apply to him, and by extension, the waiver of inadmissibility

under section 209(c) is also foreclosed. We therefore affirm

the BIA’s decision and hold that an alien who has previously

adjusted status to that of LPR retains that status until a final

order of removal and cannot “re-adjust” status to that of an

LPR under section 209(b) in order to avoid removal.

[8] We find support for our perspective in cases from our

sister circuits, which have held that refugees who adjust status

to lawful permanent resident are ineligible for relief from

removal under section 209(a) in connection with a waiver of

inadmissibility under section 209(c). Gutnik v. Gonzales, 469

F.3d 683, 692 (7th Cir. 2006) (holding that an alien who

adjusted status from refugee to LPR was no longer eligible to

apply for a waiver of inadmissibility in connection with an

adjustment of status under section 209); Saintha v. Mukasey,

516 F.3d 243, 252-53 (4th Cir. 2008) (applying Chevron def-

erence to the BIA’s determination that a refugee who had

already acquired LPR status was precluded from subsequently

re-adjusting to LPR status).

While these cases involve section 209(a), which concerns

adjustment of status from refugee to LPR, they are nonethe-

less instructive. In Gutnik, the Seventh Circuit deferred to the

BIA’s determination that relief under section 209 was

unavailable to a removable refugee who had previously

adjusted his status to that of LPR. Gutnik, 469 F.3d at 692.

The BIA noted that allowing Gutnik to apply for a waiver

under section 209(c) would place “him at an unfair advantage

over other aliens and would improperly insulate him from his

criminal misconduct which occurred many years after his

arrival as a refugee.” Id. at 689. This reasoning echoes the

concern we voiced in Kaganovich in deciding that refugee

status should not be used to insulate aliens from the otherwise

800 ROBLETO-PASTORA v. HOLDER

applicable removal statute. 470 F.3d at 898 (finding persua-

sive the BIA’s holding in In re Smriko, 23 I. & N. Dec. 836

(BIA 2005) that 8 U.S.C. § 1157(c)(4) should not be read to

shield refugees from the INA’s general removal provision).

Similarly, in Saintha, the Fourth Circuit deferred to the

BIA’s interpretation of section 209(a)(1) as precluding relief

from removal for a refugee who had previously acquired LPR

status.8 Saintha, 516 F.3d at 247, 253. The BIA rejected Sain-

tha’s application to adjust status a second time under section

209(a) in connection with a waiver of inadmissibility under

section 209(c), concluding that the plain language of section

209(a)(1) precluded “a refugee who has already acquired LPR

status . . . from subsequently re-adjusting to LPR status.” Id.

at 247. More specifically, the BIA read section 209(a)(1) as

providing three criteria for adjusting status, one of which

requires the alien not to have already “acquired permanent

resident status.” Id. at 253. Because Saintha had already

acquired LPR status, he could not satisfy this criterion, and

8

Section 209(a)(1) provides in relevant part:

a) Criteria and procedures applicable for admission as immigrant;

effect of adjustment.

(1) Any alien who has been admitted to the United States

under section 1157 of this title —

(A) whose admission has not been terminated by the Sec-

retary of Homeland Security or the Attorney General pursu-

ant to such regulations as the Secretary of Homeland

Security or the Attorney General may prescribe,

(B) who has been physically present in the United States

for at least one year, and

(C) who has not acquired permanent resident status,

shall, at the end of such year period, return or be returned to the

custody of the Department of Homeland Security for inspection

and examination for admission to the United States as an immi-

grant in accordance with the provisions of sections 1225, 1229a,

and 1231 of this title.

8 U.S.C. § 1159(a)(1) (emphasis added).

ROBLETO-PASTORA v. HOLDER 801

therefore was ineligible to adjust status a second time. Id. The

Fourth Circuit agreed with the BIA’s interpretation, noting

that it was “logical to conclude that an alien . . . who has pre-

viously acquired permanent resident status but was later ren-

dered removable by the commission of multiple crimes, is

ineligible to acquire LPR status again under § 1159.” Id.

We find the Fourth and Seventh Circuits’ interpretation of

section 209(a) to be persuasive, and we see no reason why we

should read 209(b) in a contrary manner with respect to

asylees who have acquired lawful permanent resident status.

Although section 209(a) explicitly provides that adjustment

under that section is unavailable to refugees who have already

“acquired permanent resident status,” see 8 U.S.C.

§ 1159(a)(1)(C), and section 209(b) contains no such provi-

sion, the language of section 209(b) is nonetheless plain. It

provides the Secretary of Homeland Security or the Attorney

General with discretion to “adjust to the status of an alien

lawfully admitted for permanent residence the status of any

alien granted asylum . . . .” 8 U.S.C. § 1159(b). Simply put,

it allows the government to adjust an alien’s status from

asylee to LPR; it does not permit “re-adjustment” of status for

asylees who have already acquired LPR status and we decline

to expand the statute’s coverage to such individuals. To do so

would provide unique relief to asylees who have acquired

LPR status, while precluding such relief for similarly situated

refugees, many of whom, unlike petitioner, will not have been

convicted of an aggravated felony.

Significantly, the legislative history of the INA’s asylum

provisions supports our reluctance to treat refugees and

asylees disparately, as it indicates that the two classes of

aliens were to have essentially “equivalent status” under the

law. The INA’s asylum provisions were enacted into law pur-

suant to the Refugee Act of 1980. The Refugee Act, in addi-

tion to “regulariz[ing] the procedures governing the admission

of refugees into the United States,” INS v. Stevic, 467 U.S.

407, 425 (1984), required the Attorney General to establish

802 ROBLETO-PASTORA v. HOLDER

procedures for “determining asylum claims filed by aliens

who are physically present in the United States.” Refugee Act

of 1980, S. Rep. No. 96-256, at 9 (1980), reprinted in 1980

U.S.C.C.A.N. 141, 149. The legislative history shows that

Congress saw asylees and refugees as having similar status

under the law, indicating that those granted asylum were to be

“placed into a conditional admission status equivalent in most

respects to that provided under current law to refugees.” Id.

(emphasis added).

[9] Nothing in the legislative history indicates that asylum

status was so distinct that it conferred an exemption from stat-

utes governing the conduct of other aliens admitted to the

United States, or otherwise provided additional relief from

removal that was unavailable to refugees. See Kaganovich,

470 F.3d at 898 (agreeing with BIA’s determination that

INA’s refugee provisions could not be read to immunize refu-

gees from the INA’s removal provision). Consistent with this

history, we decline to read section 209(b) as providing asylees

who have acquired LPR status with additional avenues for

avoiding removal that are otherwise foreclosed to similarly

situated refugees.

[10] In sum, at the time of his request for “re-adjustment”

of status, Robleto retained his LPR status. See 8 C.F.R.

§ 1001.1(p). Section 209(b), by its plain language, contem-

plates an asylee’s adjustment of status to LPR, and does not

extend relief to aliens who have already acquired LPR status.

This natural reading of section 209(b) is consistent with deci-

sions of the Seventh and Fourth Circuits in the analogous con-

text of refugees who have previously adjusted status, and with

our prior decision in Kaganovich. Because petitioner

advances no other theory of relief from removal, we deny his

petition and hold that an alien who acquired lawful permanent

resident status based on a prior grant of asylum may not “re-

apply” for LPR status under section 209 in order to avoid

removal.

ROBLETO-PASTORA v. HOLDER 803

D. Due Process Claim

Finally, petitioner asserts that the IJ denied him due process

by denying his request for a continuance to obtain his immi-

gration records.

[11] “[A]n alien who faces deportation is entitled to a full

and fair hearing of his claims and a reasonable opportunity to

present evidence on his behalf.” Colmenar v. INS, 210 F.3d

967, 971 (9th Cir. 2000); see also Cano-Merida v. INS, 311

F.3d 960, 964 (9th Cir. 2002). In order to show a due process

violation, an applicant must show prejudice. Cano-Merida,

311 F.3d at 965. Prejudice is shown where the violation

potentially affected the outcome of the proceedings. Id.

[12] Petitioner fails to establish prejudice. Although the IJ

conducted the removal proceedings in the absence of petition-

er’s full immigration file, petitioner was able to present his

claims for relief without it. Moreover, the BIA had the full

record before it when examining petitioner’s appeal. As set

forth above, nothing in petitioner’s file changes the fact that

he is currently ineligible for asylum. Moreover, even after

examining petitioner’s full immigration file, the BIA deter-

mined that petitioner failed to establish that his prior grant of

asylum was based on actual, past persecution or that he was

likely to suffer persecution upon return to Nicaragua. We find

that the record supports this view. Accordingly, petitioner has

failed to show that a continuance would have affected the out-

come of the proceedings.

III.

[13] Based on the foregoing, we conclude that the BIA did

not err in denying petitioner’s applications for asylum and

withholding of removal under the INA and the CAT. Further,

we conclude that petitioner retained his status as a lawful per-

manent resident during the removal proceedings, and there-

fore was not eligible to seek relief from removal under section

804 ROBLETO-PASTORA v. HOLDER

209(b) of the INA in connection with a waiver of inadmissi-

bility under section 209(c). Finally, we conclude that the

denial of petitioner’s request for a continuance does not

amount to a due process violation. Accordingly, the petitions

for review are DENIED.