Jose Tito Verdi v. Attorney General United States , 571 F. App'x 106 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-1438
___________
JOSE ORLANDO TITO VERDI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A205-753-310)
Immigration Judge: Honorable Leo Finston
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 1, 2014
Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges
(Opinion filed: July 2, 2014)
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OPINION
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PER CURIAM
Jose Orlando Tito Verdi petitions for review of a final order of removal. For the
following reasons, we will deny the petition.
Verdi, a native and citizen of Peru, entered the United States in 2006 and
overstayed his visa. The Government started removal proceedings on that basis in 2013.
See 8 U.S.C. § 1227(a)(1)(B). Verdi chose to represent himself in the proceedings after
being advised by the Immigration Judge (IJ) of his rights and receiving a list of legal
service providers.1 Administrative Record (“A.R.”) at 64-65. Verdi conceded that he
was removable as charged and did not apply for any relief. In addition, Verdi did not
identify any potential grounds for relief after being questioned by the IJ. He testified
that: (1) he had not been mistreated in Peru and did not fear returning there; (2) he is not
married and has no children; (3) no petition had ever been filed on his behalf; and (4) his
parents have no legal status in the United States. Id. at 67-68. After Verdi testified that
he had been assaulted by thieves and the police in the United States, the IJ asked if he had
cooperated in any investigation or prosecution, and Verdi testified that he had not. Id. at
68-69. At that point, the IJ noted that Verdi appeared to be eligible only for voluntary
departure, but Verdi declined because he could not accomplish the necessary steps. Id. at
69, 72-73. Ultimately, the IJ found Verdi removable based on his factual admissions and
concession of removability. The IJ ordered Verdi’s removal, concluding that he was not
eligible for any form of relief, including a U visa.
On appeal to the Board of Immigration Appeals (“BIA”), Verdi asked for his
removal to be cancelled and his case remanded to a state court because he believed that
his immigration proceedings had been “rushed” due to state police officers fearing that he
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The proceedings were continued for Verdi to obtain counsel, but he never did.
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would file a lawsuit against them. The BIA concluded that the allegation was not
germane to removability or relief therefrom and affirmed the IJ’s decision because Verdi
had not satisfied his burden to establish eligibility for relief. The present petition for
review followed.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Where, as here, the BIA
issues its own decision on the merits, we review that decision and consider the IJ’s ruling
“only insofar as the BIA deferred to it.” Roye v. Att’y Gen., 693 F.3d 333, 339 (3d Cir.
2012). We review the agency’s factual findings for substantial evidence. Dia v.
Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003). This is a deferential standard, and the
“BIA’s determination will not be disturbed unless any reasonable adjudicator would be
compelled to conclude to the contrary.” Yu v. Att’y Gen., 513 F.3d 346, 348 (3d Cir.
2008) (internal quotation marks omitted).
Verdi was charged with being removable under 8 U.S.C. § 1227(a)(1)(B) for
staying in the United States longer than permitted by his visa. During the immigration
proceedings, Verdi admitted that he: (1) is a native and citizen of Peru; (2) was admitted
to the United States as a temporary visitor in 2006 with authorization to remain until May
4, 2007; and (3) remained in the United States after that date without authorization. He
also conceded that he was removable as charged. Verdi has not challenged this
determination. We conclude that substantial evidence supports the determination that
Verdi is removable pursuant to 8 U.S.C. § 1227(a)(1)(B) .
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As for relief from removal, the burden of proof to establish eligibility for it rests
upon the alien. See 8 U.S.C. § 1229a(c)(4). In this case, Verdi did not apply for relief.
Nor did he establish any potential basis for it through his testimony, despite the IJ’s
inquiries on the subject. Accordingly, we conclude that substantial evidence supports the
determination that Verdi did not establish eligibility for relief from removal.
On appeal, Verdi raises a due process challenge to aspects of the immigration
proceedings. He contends that his rights were violated when: (1) immigration
proceedings were initiated before “his criminal case was resolved;” (2) the IJ failed to
find out why he could not meet the conditions for voluntary departure; and (3) the IJ
failed to advise him of his right to a U visa.2 To the extent that Verdi argues that he was
deprived of a fundamentally fair hearing, we conclude that the claim fails because he has
not demonstrated that he was substantially prejudiced. See, e.g., Khan v. Att’y Gen., 448
F.3d 226, 236 (3d Cir. 2006) (“‘[d]ue process challenges to deportation proceedings
require an initial showing of substantial prejudice’”) (quoting Anwar v. INS, 116 F.3d
140, 144 (5th Cir. 1997)).
Regarding the first claim, Verdi states that the “outcome of his criminal case will
impact his eligibility for relief in his immigration proceedings,” apparently asserting a
2
Verdi did not raise these claims before the BIA and they are thus not exhausted.
However, due process claims are generally exempt from the exhaustion requirement, and
we will review de novo the question of whether Verdi’s rights were violated. See Mudric
v. Att’y Gen., 469 F.3d 94, 98 (3d Cir. 2006).
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right to defer the immigration proceedings on that basis. Verdi does not explain his
criminal case, its status, or how it could possibly affect his eligibility for relief.
Furthermore, we note that Verdi was found removable for overstaying his visa, not for a
criminal conviction. There is no apparent connection between those proceedings and the
immigration proceedings. He thus fails to establish any prejudice flowing from the
timing of his immigration proceedings.
As for Verdi’s claim that the IJ violated his rights by failing to ascertain why he
could not meet the conditions for voluntary departure, he cites no authority for the
proposition that the IJ had a duty to undertake such an inquiry. That is not surprising,
given that the burden is on the alien to establish eligibility for relief, as noted earlier
Furthermore, Verdi declined to apply for voluntary departure and has never claimed that
he could meet the eligibility criteria. On the contrary, his argument is premised on his
inability to meet the criteria, which completely undermines any ability to show prejudice
from the alleged violation of his rights.
Finally, Verdi claims that the IJ did not advise him of his right to a U visa. Verdi
had no “right” to such a visa, and indeed, did not establish eligibility. Eligibility for a U
visa is generally predicated on assisting law enforcement with the investigation or
prosecution of a crime. See 8 C.F.R. § 214.14(b). Verdi testified that he had not
provided such assistance when questioned by the IJ. As he was not eligible for a U visa,
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there was no reason for the IJ to advise him about it and no prejudice from the failure to
do so.3
For these reasons, we will deny the petition for review.
3
The authority cited by Verdi in support of this claim, 8 C.F.R. § 1240.11 and decisions
from the Ninth Circuit, do not affect this analysis. The decisions are not binding on this
Court, and neither they nor the regulation concern U visas or situations where there was
no potential eligibility for such relief.
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