Valles-Diera v. Lynch ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 19, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JOSE MANUEL VALLES-DIERA,
Petitioner,
v. No. 15-9587
(Petition for Review)
LORETTA E. LYNCH, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, McKAY, and O’BRIEN, Circuit Judges.
_________________________________
Petitioner Jose Valles-Diera, a native and citizen of Mexico, appeals the removal
order entered by an Immigration Judge (IJ) and affirmed by the Board of Immigration
Appeals (BIA). We deny the petition for review.
I. BACKGROUND
Petitioner entered the United States on or about August 17, 2007, after having
been issued an H-2A visa for a nonimmigrant temporary agricultural worker. The visa
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
permitted him to work for Clay Lowry Forestry, Inc. After about one month, petitioner
stopped working for Clay Lowry Forestry and worked for other employers.
In October 2010, petitioner came to the attention of immigration authorities when
he was arrested for a traffic violation in Oklahoma City, Oklahoma. He was interviewed
by an Immigration and Customs Enforcement (ICE) officer who issued a Form I-213
Record of Deportable/Inadmissible Alien stating petitioner was admitted to the United
States “on or about 08/17/2007 as a nonimmigrant H2A with authorization to remain in
the United States for a temporary period not to exceed 10/01/2007.” R. at 165. In
August 2012, petitioner was placed in removal proceedings for failing to comply with the
nonimmigrant status of his admission. Petitioner and his attorney appeared for three
hearings in Oklahoma City by videoconference with an IJ in Dallas, Texas.
Petitioner testified that he believed his visa authorized him to remain in the United
States for as long as his work for Clay Lowry Forestry lasted. He further testified that he
worked for Clay Lowry Forestry for about one month, but did not return to Mexico after
the work ended. Instead, he worked for one or more other employers in the United
States, even though he did not have authorization from immigration authorities to work
for any employer other than Clay Lowry Forestry.
The IJ determined that petitioner had lawfully entered the United States as a
nonimmigrant H-2A temporary worker “with permission to work for a specified
employer for a temporary period of time” and “remained in the United States beyond the
time allowed for a nonimmigrant temporary worker and worked for another company
after his employment with his petitioning employer ended.” R. at 62. The IJ ordered
2
petitioner removed because he had failed to comply with the conditions of his H-2A
status. The BIA affirmed. Petitioner now petitions for review arguing (1) the BIA’s
decision violated his due-process rights because it failed to identify and consider
important issues and was not the product of reasoned decision-making and (2) the BIA
erred by finding clear and convincing evidence that petitioner was admitted to the United
States in an H-2A status and by ordering him removed. He contends that only evidence
from the Department of Homeland Security (DHS) department of Customs and Border
Patrol (CBP) can establish the admission category under which he was granted admission
by CBP at the port of entry.
II. VENUE
For the three videoconference hearings, petitioner and his attorney were in
Oklahoma City, which is in the Tenth Circuit, and the IJ was in Dallas, which is in the
Fifth Circuit. The petition for review was originally filed in the Fifth Circuit. On motion
by the government, the Fifth Circuit transferred the petition to this court without
explanation. Petitioner does not object to venue in this court.
A “petition for review shall be filed with the court of appeals for the judicial
circuit in which the immigration judge completed the proceedings.” 8 U.S.C.
§ 1252(b)(2). This provision “is a non-jurisdictional venue provision.” Lee v. Lynch,
791 F.3d 1261, 1264 (10th Cir. 2015). Because petitioner did not object to venue in the
Tenth Circuit, we deem the issue waived. See Sanchez v. Nitro-Lift Techs., L.L.C.,
762 F.3d 1139, 1151-52 (10th Cir. 2014) (holding venue may be waived by failing to
object).
3
III. STANDARDS OF REVIEW
The government “has the burden of establishing by clear and convincing evidence
that, in the case of an alien who has been admitted to the United States, the alien is
[removable].” 8 U.S.C. § 1229a(c)(3)(A). When reviewing a challenge to the quality
and substantiality of the evidence, “the court ‘does not ask itself whether it believes that
the evidence’ establishes removability by clear and convincing evidence, but rather
whether the agency’s ‘judgment is supported by substantial evidence.’” Jimenez-Guzman
v. Holder, 642 F.3d 1294, 1298 (10th Cir. 2011) (quoting Woodby v. INS, 385 U.S. 276,
282 (1966)). In other words, we review for substantial evidence whether the government
met its affirmative burden to establish through clear and convincing evidence the alien
was removable. Id. at 1299. “Agency findings of fact are conclusive unless the record
demonstrates that any reasonable adjudicator would be compelled to conclude to the
contrary.” Sarr v. Gonzales, 474 F.3d 783, 788-89 (10th Cir. 2007) (internal quotation
marks omitted). We neither reweigh the evidence nor assess witness credibility.
Id. at 789. We conduct a de novo review of purely legal questions. Fernandez-Vargas v.
Ashcroft, 394 F.3d 881, 884 (10th Cir. 2005).
The BIA issued a single-member decision. Therefore, “although we will not
affirm on grounds raised in the IJ decision unless they are relied upon by the BIA, we are
not precluded from consulting the IJ’s more complete explanation of those same
grounds.” Maatougui v. Holder, 738 F.3d 1230, 1237 n.2 (10th Cir. 2013) (internal
quotation marks, brackets and ellipsis omitted).
4
IV. STATUTORY AND REGULATORY FRAMEWORK
“[A]n alien may be authorized to come to the United States temporarily to perform
services or labor for . . . an employer, if petitioned for by that employer.” 8 C.F.R.
§ 214.2(h)(1)(i). Within this nonimmigrant classification, an alien may be in the H-2A
category, which applies to “an alien who is coming to perform agricultural labor or
services of a temporary or seasonal nature.” Id.; see also id. § 214.2(h)(1)(ii)(C). If an
H-2A nonimmigrant temporary worker “seeks to change employers, the prospective new
employer must file a petition . . . requesting . . . an extension of the alien’s stay in the
United States.” See id. § 214.2(h)(2)(i)(D). Otherwise the H-2A worker must depart the
United States at the end of his original employment period. See id. § 214.2(h)(5)(viii)(C).
In no event is an H-2A worker allowed to remain in the United States longer than three
years. Id. “Any alien who was admitted as a nonimmigrant and who has failed to
maintain the nonimmigrant status in which the alien was admitted . . . or to comply with
the conditions of any such status, is deportable.” 8 U.S.C. § 1227(a)(1)(C)(i).
V. DISCUSSION
Petitioner argues the BIA violated his rights to due process when it failed to
address important issues and to deliver a reasoned decision. “[T]he Due Process Clause
protects an alien subject to a final order of [removal], though the nature of that protection
may vary depending upon status and circumstance.” Zadvydas v. Davis, 533 U.S. 678,
693-94 (2001) (citation omitted). “[W]hen facing removal, aliens are entitled only to
procedural due process, which provides the opportunity to be heard at a meaningful time
and in a meaningful manner.” Schroeck v. Gonzales, 429 F.3d 947, 952 (10th Cir. 2005)
5
(internal quotation marks omitted). An alien in removal proceedings “shall have a
reasonable opportunity to examine the evidence against [him], to present evidence on
[his] own behalf, and to cross-examine witnesses presented by the Government.”
Barrera-Quintero v. Holder, 699 F.3d 1239, 1248 (10th Cir. 2012) (internal quotation
marks omitted); see also 8 U.S.C. § 1229a(b)(4)(B).
Petitioner contends the BIA erred in finding clear and convincing evidence that he
was admitted in an H-2A category and that he was removable.1 He asserts that only the
I-94 admissions card issued by a CBP officer at the port of entry can establish the
nonimmigrant status in which he was admitted. He further argues that ICE was without
jurisdiction to determine that he was removable because only the CBP had jurisdiction to
do so. Thus, he contends that because the government did not produce an I-94
admissions card or other evidence from CBP to establish his category of admission, the
BIA improperly assumed he was admitted in the H-2A category. He argues the
“subjective admissions decision made by DHS-CBP officers at the port of entry,” Aplt.
Br. at 18, controlled the category of admission and the government produced no evidence
to establish what those subjective decisions were. In a related argument, petitioner
contends his own testimony concerning what he understood to be his admission
1
He characterizes this issue as a question of law to be reviewed de novo. But
as stated above, our review is to determine whether substantial evidence supports the
agency’s decision. Jimenez-Guzman, 642 F.3d at 1298.
6
classification was irrelevant since the admission classification was made at the port of
entry by a CBP officer.2
We reject these arguments. Petitioner does not challenge the record evidence that
his visa, which was included in his passport, stated it was an H-2A visa. In addition, the
Form I-213 stated petitioner had been admitted to the United States on or about
August 17, 2007, on a nonimmigrant H-2A visa and had remained in the United States
beyond the authorized period. Although petitioner asserts the BIA and the IJ erroneously
relied on the Form I-213 to prove he was removable, “Form I-213 is a presumptively
reliable administrative document,” Vladimirov v. Lynch, 805 F.3d 955, 964 (10th Cir.
2015) (internal quotation marks omitted). Unless “there is evidence of unreliability,”
information contained in a Form I-213 is “presumed true.” Id. Petitioner has suggested
no evidence of unreliability and there is no indication that the Form I-213 “was carelessly
or maliciously drafted or was intended to serve as anything other than an administrative
record,” id. (internal quotation marks omitted). Thus, the IJ and the BIA appropriately
relied on it. Petitioner has cited no relevant authority for his claim that the subjective
decision of the CBP officer is controlling or that ICE was without jurisdiction to
determine he was removable. Having concluded the IJ and BIA properly relied on
petitioner’s passport and visa, as well as the Form I-213, we reject the argument that the
2
Petitioner claims the government failed to produce evidence that a stamp was
placed in his passport specifying a visa expiration date or stating the visa was valid
“indefinitely,” arguing it was likely he received an “indefinite” visa, see Aplt. Br. at
13. He relies on 22 C.F.R. § 41.113(d), but that section does not refer to an
“indefinite” visa. Moreover, the regulation does not authorize an alien to remain in
the United States in violation of his admission status.
7
government was required to adduce additional evidence to establish petitioner’s
admission classification.
Petitioner next contends the period his visa was valid had no bearing on the period
of time the CBP officer authorized him to stay in the United States. See Aplt. Br. at 13
(citing 22 C.F.R. § 41.112(a)). But the BIA did not determine that petitioner stayed in
the United States longer than authorized by CBP officers; rather, it held that he violated
his status by staying after the end of his employment with Clay Lowry Forestry and
working for different employers who did not file the appropriate petitions on his behalf.
Petitioner also complains that the BIA’s decision did not comprehensively discuss
all of his arguments, but instead adopted the IJ’s conclusion that the government had met
its burden of proving removability. “The BIA is not required to write an exegesis on
every contention. What is required is that it consider the issues raised, and announce its
decision in terms sufficient to enable a reviewing court to perceive that it has heard and
thought and not merely reacted.” Maatougui, 738 F.3d at 1242-43 (brackets and internal
quotation marks omitted). As our discussion above demonstrates, the BIA’s reasoning is
adequate for meaningful review.
We conclude the agency’s finding that petitioner was admitted in the H-2A
category is conclusive because the record does not compel a contrary conclusion. See
Sarr, 474 F.3d at 788-89. We further determine substantial evidence supports the BIA’s
ruling that petitioner was removable because he failed to comply with the conditions of
the H-2A classification under which he was admitted.
8
VI. CONCLUSION
For the reasons stated, the petition for review is denied.
Entered for the Court
Monroe G. McKay
Circuit Judge
9