Elanit Avidan v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELANIT AVIDAN,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-70146
Agency No. A095-710-920
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2023 **
Pasadena, California
Before: KLEINFELD, WATFORD, and COLLINS, Circuit Judges.
Elanit Avidan petitions for review of an order of the Board of Immigration
Appeals (BIA) dismissing her appeal from the decision of an immigration judge
denying her application for a waiver of removal under 8 U.S.C. § 1227(a)(1)(H).
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAR 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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We dismiss in part and deny in part the petition.
1. Our review of the BIA’s denial of a waiver of removal under 8 U.S.C.
§ 1227(a)(1)(H) is limited to colorable “constitutional claims [and] questions of
law.” § 1252(a)(2)(D); see also § 1252(a)(2)(B)(ii); Mendez-Castro v. Mukasey,
552 F.3d 975, 978 (9th Cir. 2009); San Pedro v. Ashcroft, 395 F.3d 1156, 1157–58
(9th Cir. 2005). Here, the BIA applied the correct standard from In re Tijam, 22 I.
& N. Dec. 408, 412–13 (BIA 1998) (en banc), and properly considered each
relevant factor de novo. Avidan’s argument that the BIA abused its discretion by
not giving sufficient weight to the positive equities in her case does not raise a
colorable question of law. It instead challenges how the agency balanced the
relevant considerations—a matter over which we lack jurisdiction. See Vasquez v.
Holder, 602 F.3d 1003, 1017 (9th Cir. 2010) (noting that “we do not have
jurisdiction to review the discretionary denial of a fraud waiver”).
Avidan also argues that it was legal error for the BIA to consider the
misrepresentations she made in applying for naturalization and petitioning for a
visa on behalf of her second husband because those acts were extensions of her
initial entry fraud. As decisions from the Supreme Court and the BIA have made
clear, however, the BIA can consider a petitioner’s initial entry fraud as an adverse
factor when making a discretionary decision under 8 U.S.C. § 1227(a)(1)(H). See
INS v. Yueh-Shaio Yang, 519 U.S. 26, 31 (1996); Tijam, 22 I. & N. Dec. at 416–17.

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Accordingly, we lack jurisdiction to review the BIA’s decision because
Avidan’s contentions, namely that the agency failed to properly weigh the positive
equities in her case and improperly considered subsequent misrepresentations
made to immigration authorities, do not state colorable questions of law.
2. Avidan contends that the immigration court lacked jurisdiction because
the notice to appear (NTA) she received was defective under Niz-Chavez v.
Garland, 141 S. Ct. 1474 (2021), and Pereira v. Sessions, 138 S. Ct. 2105 (2018).
That argument is foreclosed by our recent decision in United States v. Bastide-
Hernandez, 39 F.4th 1187 (9th Cir. 2022) (en banc), which held that “the failure of
an NTA to include time and date information does not deprive the immigration
court of subject matter jurisdiction.” Id. at 1188. We therefore deny the petition as
to this claim.
PETITION FOR REVIEW DISMISSED IN AND DENIED IN PART.

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