Dean v. Holder, Jr. , 408 F. App'x 128 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
December 22, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
SOMNANG DEAN,
Petitioner,
v. No. 10-9504
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before TACHA, ANDERSON, and KELLY, Circuit Judges.
Petitioner Somnang Dean petitions this court for review of an order of the
Board of Immigration Appeals (BIA) dismissing his appeal of an Immigration
Judge’s (IJ) decision denying his request for continuance, finding him statutorily
ineligible for adjustment of status, and denying his request for voluntary
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
departure. Respondent has filed a motion to dismiss, arguing that the claims
raised in the petition are moot. As explained below, we grant the motion to
dismiss in part and dismiss as moot Mr. Dean’s claims relating the denial of
adjustment of status. We deny the motion as to Mr. Dean’s claim that his due
process rights were violated because he was not given a transcript of his
testimony at a hearing held in his wife’s immigration proceedings, but we dismiss
that claim for failure to exhaust.
I.
This case has a long and complicated procedural history that need not be
recounted in full as the parties do not disagree about the history. The short
version is as follows. Mr. Dean and his first wife attempted to enter the United
States from their home county of Cambodia in November 1994 with Mr. Dean
using a false name. They were charged with excludability. Mr. Dean conceded
excludability but sought asylum and withholding of deportation. His applications
were denied and he was returned to Cambodia. His wife’s applications were also
denied but she remained in the country after her case was reopened. Mr. Dean
shortly thereafter returned to the United States using a non-immigrant visa issued
in his own name.
His wife then filed for divorce and, even though she had been reunited with
Mr. Dean, did not withdraw the petition for divorce. The divorce decree was
entered in May 1997 and Dean married a United States citizen in December 1997,
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a few days before his period of authorized stay was to expire. This citizen filed a
petition for alien relative on his behalf, but withdrew the petition on March 24,
2000, on the ground that she was seeking a divorce. Mr. Dean was charged with
removability on March 23, 2000. On July 11, 2000, Mr. Dean appeared as a
witness at a hearing that was part of his first wife’s immigration proceedings and,
at one point, in testimony concerning his relationship with his ex-wife, asserted
that he never stopped being married to her. He later corrected himself under
questioning from his own attorney.
On the same day as his wife’s hearing, and immediately thereafter, a
hearing regarding Mr. Dean’s immigration status was held in front of the same IJ.
Mr. Dean had previously conceded removability and the only remaining issue was
voluntary departure. Apparently, because the actors were the same, the IJ and the
attorneys simply began argument as to whether voluntary departure should be
granted, based on the testimony presented in the previous hearing. The IJ denied
voluntary departure on the ground that he thought Mr. Dean’s testimony at the
previous hearing was not credible and that he believed that Mr. Dean had
attempted to perpetrate marriage fraud in order to stay in the United States.
The BIA reversed on appeal, noting that the IJ failed to enter a separate
written decision and that it did not have before it any testimony from Mr. Dean,
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despite the IJ’s assertion that he did not believe Mr. Dean’s testimony. 1 The BIA
remanded to allow Mr. Dean to present testimony and other evidence in support
of his voluntary departure application.
Mr. Dean’s next hearing before the IJ was continued at the request of the
government, on the ground that it had just realized that Mr. Dean had filed an
adjustment of status application based on an employment-based visa petition filed
by Mr. Dean’s employer and granted by the United States Citizenship and
Immigration Services (CIS). CIS subsequently revoked the approved visa petition
and Mr. Dean appealed the revocation.
Mr. Dean then had another hearing before the IJ on both his adjustment
application and his voluntary departure request. He asked for a continuance,
arguing that his adjustment application could not be ruled upon until after
disposition of his appeal of the visa revocation. The IJ denied the request for
continuance, denied adjustment of status on the ground that Mr. Dean had no
valid visa pending at that time, and denied voluntary departure based on the IJ’s
previous marriage fraud determination. Mr. Dean appealed to the BIA and the
1
It appears that the board had not been provided the transcript of the
testimony from the July 11 hearing in Mr. Dean’s wife’s case. We note, however,
that the BIA remanded on these grounds sua sponte. Mr. Dean did not argue on
appeal to the BIA that the case should be remanded due to either the IJ’s failure
to enter a separate written decision or the IJ’s consideration of Mr. Dean’s
testimony in his wife’s hearing.
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case was remanded again, this time based on the IJ’s failure to enter a written
decision.
At the hearing on remand, the IJ again denied adjustment and voluntary
departure, and signed the transcript of his oral decision as his written ruling.
Mr. Dean appealed. Among other grounds for appeal, Mr. Dean argued that he
“suspect[ed] that the recordings of the hearings herein are incomplete and as such
the matter should be remanded for completion of new hearings where the
recordings could be done again and be complete to then allow a meaningful
review by an appellate court.” Admin. R. at 802. The BIA adopted and affirmed
the IJ’s decision. In a footnote, the BIA wrote that “[t]o the extent that
[Mr. Dean] suggests that the transcript is missing or incomplete, the transcript for
the July 11, 2000, hearing, regarding [Mr. Dean’s] marriages and travel to the
United States, is contained in his current wife’s Record of Proceedings.” Id. at
770. Mr. Dean then petitioned to this court for review of this decision.
II.
Mr. Dean raises two due process arguments in his petition. The second of
these arguments is that Mr. Dean did not receive due process in regard the denial
of his motion for adjustment of status. Adjustment was denied on the ground that
the underlying visa had been revoked, despite the fact that the appeal from that
revocation had not been decided. Mr. Dean argues that his due process rights
were violated by the IJ’s refusal to continue the matter until after the revocation
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appeal was decided. In his motion to dismiss, the Attorney General has provided
this court with documentation showing that the Administrative Appeals Office
(AAO) actually rejected Mr. Dean’s appeal from the revocation as improperly
filed on April 14, 2009. 2 Thus, Mr. Dean’s second argument is moot in that it is
clear that there is no chance for the revocation to be overturned and, thus, no
argument that the adjustment of status denial might be error. See Abdulhaseeb v.
Calbone, 600 F.3d 1301, 1311 (10th Cir.) (internal quotation marks omitted)
(“When it becomes impossible for a court to grant effective relief, a live
controversy ceases to exist, and the case becomes moot.”), cert. denied, 131 S. Ct.
469 (2010).
Mr. Dean’s first due process argument, however, is not moot. In it, he
argues that his due process rights were violated because he never received a
transcript of his testimony at his wife’s July 11, 2000, hearing. He argues that
this denied him any opportunity to challenge the evidence (i.e., his testimony at
his wife’s hearing) that was used against him. Since this argument would impact
2
We note that while the record of the AAO’s decision is not part of the
administrative record before this court, Mr. Dean filed no response to the
Attorney General’s motion to dismiss, nor has he in any other way disputed the
authenticity of the AAO decision. Further, the AAO’s decision is the type of
public record of which we may take judicial notice. Opoka v. INS, 94 F.3d 392,
394 (10th Cir. 1996) (taking judicial notice, when reviewing an alien’s petition
for review, of a BIA decision in the immigration proceedings of the alien’s wife).
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the agency’s voluntary departure decision as well as its adjustment of status
decision, it is not moot. 3
Nevertheless, this point must be dismissed for lack of jurisdiction as well.
The failure to raise an issue on appeal to the Board constitutes
failure to exhaust administrative remedies with respect to that
question and deprives the Court of Appeals of jurisdiction to hear the
matter. Courts have carved out an exception to the exhaustion
requirement for constitutional challenges to the immigration laws,
because the BIA has no jurisdiction to review such claims.
Nevertheless, the BIA does have the authority to reopen cases to fix
administratively correctable procedural errors, even when these
errors are failures to follow due process.
Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam) (citations
omitted) (internal quotation marks omitted). Here, Mr. Dean never argued in the
agency proceedings that he was unable to properly present his case without access
to the transcript of the July 11, 2000, hearing. This was an administratively
correctable procedural error, so Mr. Dean was required to raise it to the agency in
the first instance. His failure to do so deprives this court of jurisdiction to hear
his claim.
3
We generally lack jurisdiction to consider discretionary determinations
such as a denial of voluntary departure. See Kechkar v. Gonzales, 500 F.3d 1080,
1083 (10th Cir. 2007). But we do have jurisdiction in this case because Mr. Dean
has raised a constitutional claim in regard to the denial of voluntary departure.
Id. at 1083-84.
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III.
The motion to dismiss is GRANTED IN PART and DENIED IN PART.
The petition for review is DISMISSED in its entirety for lack of jurisdiction.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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