Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Nov. 6, 1996.
Petition for Review of a Decision of the Board of Immigration Appeals, No. A30-098-223.
B.I.A.
REVIEW DENIED.
Before: WALLACE, SCHROEDER, and ALARCON, Circuit Judges.
MEMORANDUM
Hung Thanh Nguyen petitions this court to review a decision of the Board of Immigration Appeals (Board), denying him asylum under 8 U.S.C. § 1158 and a waiver of deportation under 8 U.S.C. § 1182(c). We have jurisdiction over this timely filed petition pursuant to 8 U.S.C. § 1105a. We deny the petition.
Nguyen argues that the immigration judge (IJ) improperly considered evidence of juvenile misconduct when balancing the equities in his case. Nguyen contends that the IJ's use of that evidence deprived him of due process of law and rendered his deportation proceeding fundamentally unfair.
Nguyen misunderstands the scope of our review. When the Board undertakes a de novo review of the record and makes an independent decision on the merits, we review its decision. Alaelua v. INS, 45 F.3d 1379 (9th Cir.1995) ( Alaelua ). The decision of the IJ is irrelevant unless the Board incorporated its reasoning or reviewed it only for abuse of discretion. Id.; Yepes-Prado v. INS, 10 F.3d 1363, 1367 (9th Cir.1993) (Yepes-Prado ).
In Alaelua, we inferred that the Board had undertaken a de novo review for two reasons. First, "[t]he [Board] opinion says that it reviewed the record of the proceeding." Alaelua, 45 F.3d at 1382. Second,
[a] footnote to the [Board] decision intimates that the IJ may have used an inappropriate threshold requirement of outstanding equities for aliens with criminal convictions, but "[i]n the context of the case presently before us, the ultimate decision remains the same." This shows that the [Board] independently considered the case without the threshold requirement.
Id. In essence, we concluded that the Board had undertaken a de novo review from the fact that the Board held a possible error by the IJ to be harmless.
This case is very similar to Alaelua. The Board's opinion states that it reviewed the record and the decision of the IJ. The Board also held that any error by the IJ in considering testimony relating to juvenile matters was harmless. "The immigration judge's decision is amply supported by the respondent's adult criminal history, without regard to any record he amassed as a minor." Its opinion also makes it clear that the Board independently agreed with the IJ's conclusions; there is no indication that the Board "accept[ed] determinations with which it [did not] agree, [or] results it might not have reached." Yepes-Prado, 10 F.3d at 1367. Under the circumstances, we hold that the Board engaged in de novo review.
Because the Board arrived at an independent determination that "[t]he immigration judge's decision is amply supported by the respondent's adult criminal history," any error by the IJ in considering Nguyen's juvenile record is irrelevant. See, e.g., Elnager v. INS, 930 F.2d 784, 787 (9th Cir.1991).
Nguyen also contends that the Board has failed to articulate a clear standard governing applications for discretionary relief under 8 U.S.C. §§ 1158 and 1182(c), and that this failure rendered his deportation process fundamentally unfair.
Absent overriding justification, an alien must exhaust his administrative remedies before seeking review of a deportation order. Vargas v. INS, 831 F.2d 906, 907-08 (9th Cir.1987). Although the Board does not have jurisdiction to adjudicate constitutional issues, we have held that due process claims must be presented to the Board if they involve "procedural errors" within the power of the Board to correct. Id. at 908.
The Board certainly has the power to adopt a clearer standard governing the exercise of discretion in these matters. From our review of the record, it appears that Nguyen did not urge the Board to do so. Therefore, we lack jurisdiction to consider this claim. Id.
PETITION DENIED.