Carlos Campas-Burgueno v. Merrick Garland, 17-71672

Petitioner Carlos Armando Campas‑Burgueno, a Mexican national, petitioned for review of the BIA’s dismissal of his appeal from an IJ order denying cancellation of removal and voluntary departure.
The IJ denied cancellation because petitioner allegedly abandoned his application by missing the IJ’s filing deadline and, alternatively, found him statutorily ineligible.
On appeal to the BIA, petitioner challenged only statutory eligibility, not the IJ’s abandonment finding.
For voluntary departure, the BIA found petitioner failed to prove by a preponderance that his conviction was not a crime involving moral turpitude because his conviction was under a divisible statute and the record was inconclusive as to the subsection of conviction.
Petitioner later sought remand to submit evidence of mens rea but raised that request for the first time in a supplemental brief and identified no specific evidence; he also requested remand to seek adjustment of status before the BIA but did not press that issue before this court.
Disposition: the petition is dismissed in part (for lack of jurisdiction as to cancellation) and denied in part (as to voluntary departure and requests for remand/adjustment of status).

Issue	Campas‑Burgueno's Argument	Government/BIA Argument	Held
Jurisdiction/exhaustion for cancellation of removal	He argued overall that he was eligible for cancellation and contends exhaustion was satisfied by challenging statutory eligibility	He failed to appeal the IJ’s dispositive abandonment finding to the BIA, so administrative remedies were not exhausted	Dismissed for lack of jurisdiction: failure to exhaust the abandonment issue deprives court of review
Voluntary departure eligibility re: crime involving moral turpitude	He contended he was not convicted of a crime involving moral turpitude	Conviction under a divisible statute with an inconclusive record; petitioner bears burden to prove conviction was not a disqualifying offense	Denied: record ambiguity insufficient under Pereida and Marinelarena; petitioner failed to meet burden
Remand to submit evidence (mens rea)	Requested remand to present evidence/testimony showing reckless mens rea to avoid moral‑turpitude classification	Request was first raised in supplemental brief, petitioner waived the issue and identified no specific evidence; remand unwarranted	Waived and denied; remand inappropriate without specific evidence
Remand to apply for adjustment of status	Asked the BIA for remand to file adjustment; did not press the issue here	Failure to present argument to this court constitutes waiver	Waived; court will not review BIA’s adjustment‑of‑status determination

Rodriguez v. Holder, 683 F.3d 1164 (9th Cir. 2012) (review limited to BIA’s decision when BIA conducts its own review)
Hosseini v. Gonzales, 471 F.3d 953 (9th Cir. 2006) (same principle regarding BIA review)
Zara v. Ashcroft, 383 F.3d 927 (9th Cir. 2004) (must specify issues on appeal to satisfy exhaustion)
Vargas v. INS, 831 F.2d 906 (9th Cir. 1987) (failure to raise issue before BIA deprives court of jurisdiction)
Pereida v. Wilkinson, 141 S. Ct. 754 (2021) (alien bears burden to prove ambiguous/divisible statute conviction is not a disqualifying offense)
Marinelarena v. Garland, 6 F.4th 975 (9th Cir. 2021) (ambiguity in record is insufficient; evidentiary gaps defeat petitioner)
Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000) (issues not raised in opening/reply briefs are waived)
Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010) (failure to advance arguments constitutes waiver)