Garcia Bermudez: Remand for Adjustment Required the Application, Supporting Proof, and Preserved Arguments

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Unpublished and nonprecedential: Garcia Bermudez v. Blanche, No. 26-439, is not precedent except as Ninth Circuit Rule 36-3 permits. The court denied a petition challenging the BIA’s refusal to remand removal proceedings for adjustment of status. The memorandum illustrates two separate record problems: the petitioner did not ask the BIA for termination or administrative closure on the theory later presented to the court, and the remand motion did not include the Form I-485 or enough supporting material to establish a reasonable likelihood of eligibility.

Agency posture and the claims actually preserved

The petitioner, a native of Colombia and citizen of Venezuela, sought review after the BIA dismissed her appeal from denials of asylum, withholding, and CAT protection and denied remand. Her opening brief did not specifically and distinctly challenge the protection rulings, so the panel treated those issues as forfeited. The litigated focus became adjustment-based termination, administrative closure, and remand.

Before the BIA, however, the motion requested remand so the immigration court could hold proceedings in abeyance while USCIS decided the I-485. It did not ask the BIA to terminate or administratively close proceedings on that basis. Because the government invoked the statutory exhaustion rule, the Ninth Circuit declined to consider those newly framed arguments.

Formal remand requirements and prima facie eligibility

The court reviewed denial of remand for abuse of discretion and explained that the formal requirements of remand and reopening are the same. Under 8 C.F.R. section 1003.2(c)(1), a request to reopen for an application for relief “must be accompanied by the appropriate application for relief and all supporting documentation.” Garcia Bermudez v. Blanche, No. 26-439, mem. at 3 (9th Cir. Sept. 18, 2026) (unpublished).

The BIA could also deny when the record failed to show prima facie eligibility—a reasonable likelihood of prevailing on the proposed relief. Thus, evidence that an adjustment process exists is not necessarily the same as a complete motion record showing that the applicant meets the requirements and warrants the requested remand.

Why the submitted documents were insufficient

The motion included a marriage certificate, the husband’s naturalization certificate, and a USCIS notice canceling an adjustment interview. Those documents indicated that an interview had been scheduled and canceled, but did not give the BIA the I-485, its contents, or sufficient evidence establishing a reasonable likelihood of adjustment eligibility.

The panel therefore held that denial of remand was permissible. It also rejected a judicial-notice request: even assuming later materials accurately described the I-485 status, they did not cure the record omitted before the BIA. Appellate supplementation could not retroactively satisfy the agency filing requirement.

Due process, stay, disposition, and limits

The due-process claim failed because the petitioner did not show fundamental unfairness and prejudice. The panel denied the petition, the motion for judicial notice, and the stay request. Judge Tung separately concurred to criticize the length of the temporary stay after no supplemental stay brief was filed, but joined the denial.

The memorandum does not hold that adjustment can never support remand, termination, or closure. It resolves the claims and agency record actually presented. Its lesson is procedural: ask the BIA for each form of relief later pursued, attach the proposed application and supporting documents, and build prima facie eligibility in the agency record. Its unpublished status sharply limits citation.

What this means in practice

• State each requested remedy—remand, reopening, termination, closure, or abeyance—and the governing basis before the BIA.
• Attach the completed relief application and evidence addressing every eligibility element when the regulation requires it.
• Explain prima facie eligibility rather than relying only on receipts, family documents, or an interview notice.
• Preserve protection claims with specific and distinct argument in appellate briefing and document prejudice for due-process theories.

Related reading: Deportation defense practice; Detention and court FAQ; EOIR appeal guide.