PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS.
William E. Graves on brief for petitioner.
Terri J. Scadron, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Civil Division, Joyce R. Branda, Acting Assistant Attorney General, and Anthony W. Norwood, Senior Litigation Counsel, on brief for respondent.
Before Lynch, Selya, and Thompson, Circuit Judges.
THOMPSON, Circuit Judge.
Placed in removal proceedings after his arrest on state charges, Michael Jonathan Mazariegos sought to forestall his removal based on his marriage to a United States citizen and the hardship his removal would cause his family. He prevailed before an immigration judge (IJ), but lost when the government appealed to the Board of Immigration Appeals (BIA). Mazariegos did not seek review of that decision, but later petitioned the BIA to reopen the proceedings based on new evidence. The BIA denied the motion and Mazariegos petitions this court for review of that decision. After careful consideration, we deny the petition.
A. Arrival and Arrest
Mazariegos is a native and citizen of Guatemala who has lived in the United States since he was two years old, when he and his family entered on visitor visas. In March 2008, at the age of nineteen, Mazariegos married a United States citizen, Lludelina Garcia, becoming a stepfather to her daughter. In light of the marriage, Mazariegos was approved a few months later for an I-130 immigrant visa petition. He applied for adjustment of status on the basis of the approved I-130.
The Department of Homeland Security (" DHS" ) denied his application due to a pending criminal case. That case stemmed from an October 2008 arrest that resulted in charges of receiving stolen property and failure to stop for police in violation of Massachusetts law. According to the police report, Mazariegos was driving a Cadillac when a police officer attempted to pull him over. Instead of stopping, Mazariegos accelerated through a red light and continued driving. As the car approached a wooded area, it stopped suddenly, and Mazariegos and his passenger jumped out of the car and began to run. The officer apprehended both, at which time he observed that a window of the car was smashed out and that a car dealership invoice was visible. Mazariegos admitted sufficient facts to support a finding of guilt and the case was continued without a finding to October 2010.
B. Removal Proceedings
Meanwhile, in July 2009, DHS issued a Notice to Appear and placed Mazariegos in removal proceedings, charging him with removability under 8 U.S.C. § 1227(a)(1)(B) since he had remained in the United States longer than permitted and overstayed his visitor visa. Mazariegos, represented by counsel, appeared before the IJ where he admitted the factual allegations in the notice and conceded removability. Seeking relief from removal, he renewed his application for adjustment of status based on the approved I-130. Because his convictions rendered him inadmissible to the United States, and therefore ...