Mohammed v. Holder ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1750
DIL MOHAMMED,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: April 13, 2011 Decided: April 19, 2011
Before DUNCAN, AGEE, and KEENAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Valentine A. Brown, DUANE MORRIS LLP, Philadelphia,
Pennsylvania, for Petitioner. Tony West, Assistant Attorney
General, Douglas E. Ginsburg, Assistant Director, Katherine A.
Smith, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dil Mohammed, a/k/a Mohammed Mohiuddin, a native and
citizen of Bangladesh, petitions for review of the Board of
Immigration Appeals’ (“Board”) order dismissing his appeal from
his order of removal. We deny the petition for review.
Mohammed asserts the immigration judge violated his
rights under the Fifth Amendment Due Process Clause during the
course of his merits hearing on his second application for
asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). Mohammed also alleges the
immigration judge’s handling of his eligibility for cancellation
of removal violated due process.
With regard to the latter contention, cancellation of
removal is ultimately a discretionary form of relief. See 8
U.S.C. § 1229b(b) (2006). Thus, Mohammed’s due process claim
predicated on this discretionary relief is not cognizable. See
Dekoladenu v. Gonzales, 459 F.3d 500, 508 (4th Cir. 2006) (“No
property or liberty interest can exist when the relief sought is
discretionary.”), overruled on other grounds by Dada v. Mukasey,
554 U.S. 1 (2008); see also Kodjo v. Mukasey, 269 F. App’x 262,
263-64 (4th Cir. 2008) (unpublished) (finding no property or
liberty interest in discretionary relief of cancellation of
removal).
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The remainder of Mohammed’s appeal is dedicated to the
purported errors in the hearing procedure relevant to his
application for asylum, withholding of removal, and CAT
protection, which Mohammed pursued pro se. To succeed on a due
process claim in an asylum or removal proceeding, an alien must
establish two closely linked elements: (1) that a defect in the
proceeding rendered it fundamentally unfair and (2) that the
defect prejudiced the outcome of the case. Anim v. Mukasey, 535
F.3d 243, 256 (4th Cir. 2008); Rusu v. INS, 296 F.3d 316, 320-
22, 324 (4th Cir. 2002).
We have thoroughly reviewed Mohammed’s assignments of
error and the administrative record. Given the overwhelming
nature of the Attorney General’s evidence that Mohammed had
previously received immigration benefits that he knew were
obtained by fraud and the propriety of the immigration judge’s
alternative findings, we conclude that there were no defects in
the hearing procedure that prejudiced Mohammed. We are also
confident that the immigration judge fulfilled his obligations
for conducting this pro se hearing. See In re J.F.F., 23 I. &
N. Dec. 912, 922 (A.G. 2006) (“It is appropriate for Immigration
Judges to aid in the development of the record, and directly
question witnesses, particularly where an alien appears pro se
and may be unschooled in the deportation process, but the
Immigration Judge must not take on the role of advocate.”).
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Accordingly, we deny the petition for review
substantially for the reasons stated by the Board. In re:
Mohammed (B.I.A. June 4, 2010). We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
PETITION DENIED
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