Pan v. Garland ( 2022 )

Case: 19-60606 Document: 00516457924 Page: 1 Date Filed: 09/02/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 2, 2022
No. 19-60606 Lyle W. Cayce
Clerk
Su Qin Pan,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A047 598 020
Before Richman, Chief Judge, and Clement and Duncan, Circuit
Judges.
Per Curiam:*
United States Citizenship and Immigration Services (USCIS) denied
Su Qin Pan’s Form I-751 application to remove the conditions of her
permanent residency and terminated her conditional status. The
Department of Homeland Security then initiated removal proceedings
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-60606 Document: 00516457924 Page: 2 Date Filed: 09/02/2022
No. 19-60606
against Pan based on the denial of her I-751. The Immigration Judge (IJ)
ordered Pan removed after she failed to present applications for relief. Pan
appealed to the Board of Immigration Appeals (BIA), and the BIA affirmed.
Pan timely appealed. Because Pan has failed to show substantial prejudice,
we affirm.
I
Su Qin Pan was admitted to the United States in 2000 as a conditional
permanent resident based on her marriage to a U.S. citizen. In 2011, she filed
a USCIS Form I-751 with the agency to remove the conditions of her
permanent residency. Pan submitted affidavits from family members and
medical records attesting to the fact that she had entered the marriage in good
faith but that her spouse abandoned her, causing severe emotional distress.
USCIS denied the petition and terminated her conditional permanent
resident status on the basis that her statements regarding the marriage were
insufficiently supported. Pan was informed that she could request review of
this determination in removal proceedings. DHS initiated removal
proceedings in 2017, alleging that Pan was removable because her conditional
permanent resident status had been terminated.
Pan appeared, through counsel, in May 2017 at a master calendar
hearing. Pan speaks limited English and there was no interpreter available at
the hearing, so the IJ continued the hearing until September. The parties
took no action at the May hearing except that Pan’s counsel conceded service
of the notice to appear. At the September hearing, the Executive Office for
Immigration Review interpreter phone system was nonfunctional, again
leaving Pan without an interpreter. The IJ agreed to continue the case until
February, informing counsel that “you’ll do pleadings and applications at
that time.”
2
Case: 19-60606 Document: 00516457924 Page: 3 Date Filed: 09/02/2022
No. 19-60606
Pan’s counsel then went on maternity leave, but she did not request a
continuance. Instead, Pan’s counsel arranged for substitute counsel to
appear on her behalf at the February master calendar hearing. During the
February hearing, the IJ addressed pleadings at which point Pan challenged
the charge of removability—the denial of her I-751. The IJ then addressed
applications for relief, and Pan’s counsel requested a continuance due to a
misunderstanding as to whether they were due at that time. The IJ reminded
counsel that she had set the hearing to go over both pleadings and
applications, denied the continuance, and deemed all applications for relief
abandoned. The IJ concluded that Pan’s counsel had more than enough time
to seek a continuance prior to the hearing and had not shown good cause as
to why one should be granted. The IJ simultaneously ordered Pan removed.
Pan appealed to the BIA. She argued that she should have been
granted the continuance so that she could seek other forms of relief, such as
cancellation of removal. Pan submitted an application for cancellation of
removal to the BIA, claiming that she was eligible based on the fact that her
mother, allegedly a naturalized U.S. citizen, was infirm and would suffer
hardship if Pan was removed. Pan also argued that she should have been
granted a full hearing on the merits of her I-751 denial because her right to
review of the I-751 determination was not dependent upon her filing an
application.
The BIA agreed that Pan was not required to file a separate application
for review of her I-751. Nevertheless, the BIA affirmed the IJ’s decision,
finding that Pan had never informed the IJ that she was seeking review of the
denial of her I-751. It also affirmed the IJ’s decision not to grant a
continuance. The BIA determined that Pan had not sought a continuance in
advance of the hearing despite knowing that counsel was on maternity leave
and that she had not shown good cause for one in front of the IJ. The BIA
also noted that Pan had failed to provide additional evidence that her
3
Case: 19-60606 Document: 00516457924 Page: 4 Date Filed: 09/02/2022
No. 19-60606
marriage was entered into in good faith. The Board concluded that Pan had
failed to demonstrate that the denial of a continuance to seek cancellation of
removal resulted in substantial prejudice, relying on the fact that Pan had not
provided evidence of statutory eligibility.
Pan responded by filing a motion for reconsideration in which she
conceded that the IJ had set the February hearing for both pleadings and
applications but insisted that she was entitled to a full hearing on the merits
of her I-751 denial without the need for an application. The BIA denied that
motion, and Pan petitioned this court for review.
For the first time, Pan now frames her argument in terms of due
process. She alleges that the IJ violated her due process rights by:
(1) ordering her removed to Vietnam without an evidentiary hearing as to
whether she was a citizen of Vietnam; (2) denying her a substantive hearing
on the merits of her I-751 denial; (3) failing to require the IJ to conduct a
factual inquiry into the forms of relief for which Pan may have been eligible;
(4) denying her a substantive hearing where the IJ’s comments were
ambiguous regarding whether she was required to file applications;
(5) denying a substantive hearing when counsel was on maternity leave, a
good faith misunderstanding occurred regarding the filing deadline, and she
took immediate corrective action; and (6) not reopening or reconsidering her
case. Pan’s seventh and final argument is that, as a matter of law, the IJ
abused her discretion in denying Pan a continuance.
II
We must first address exhaustion and forfeiture. Failure to exhaust
an issue before the BIA creates a jurisdictional bar as to that issue. 1 Subject
1
Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004) (per curiam) (citing Wang v.
Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001)).
4
Case: 19-60606 Document: 00516457924 Page: 5 Date Filed: 09/02/2022
No. 19-60606
matter jurisdiction is a threshold question this court reviews de novo. 2 To
exhaust an issue, the petitioner must raise it before the BIA, “either on direct
appeal or in a motion to reopen.” 3 The petitioner’s argument on appeal need
not be identical to the argument raised before the BIA; “[t]he key
requirement . . . is that a petitioner must have presented an issue in some
concrete way in order to put the BIA on notice . . . .” 4 Additionally, any
issues not briefed on appeal are forfeited. 5
Due process violations are not usually subject to the exhaustion
requirement. 6 There is, however, an exception to this rule—procedural
errors that are correctable by the BIA. 7 Such procedural errors are still
subject to exhaustion despite being couched in terms of due process. 8
“When a petitioner seeks to raise a claim not presented to the BIA and the
claim is one that the BIA has adequate mechanisms to address and remedy,
the petitioner must raise the issue [before the BIA] prior to resorting to
review by the courts.” 9 The key inquiry is whether the BIA has the power to
2
Nat’l Football League Players Ass’n v. Nat’l Football League, 874 F.3d 222, 225
(5th Cir. 2017).
3
Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009).
4
Vazquez v. Sessions, 885 F.3d 862, 868 (5th Cir. 2018).
5
Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021) (“A party forfeits an
argument . . . by failing to adequately brief the argument on appeal.”); see also Fed. R.
App. P. 28(a)(5), (8)(A); Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003) (per
curiam).
6
Roy, 389 F.3d at 137.
7
Id.8
Id.; Goonsuwan v. Ashcroft, 252 F.3d 383, 389-90 (5th Cir. 2001).
9
Goonsuwan, 252 F.3d at 390.
5
Case: 19-60606 Document: 00516457924 Page: 6 Date Filed: 09/02/2022
No. 19-60606
address the alleged error; if it does, then the error must first have been raised
to the BIA. 10
Pan never raised before the BIA the issues of: her citizenship; the IJ’s
failure to make a factual inquiry into the forms of relief to which she was
entitled; or the IJ’s alleged ambiguity regarding when applications were due.
Pan’s requested remedy as to each of these is that this court remand to the
BIA so that the BIA can remand to the IJ. This all but concedes that the error
is correctable at the BIA—by remanding. Accordingly, Pan did not exhaust
these arguments, and this court lacks jurisdiction to hear them. 11
Similarly, Pan’s argument that the BIA violated her due process rights
by denying her motion for reconsideration is not briefed beyond a single
mention. It is forfeited. 12
Pan raised the issues of her I-751 and continuance before the BIA. At
this court, she has couched her arguments in terms of due process for the first
time, but this does not necessarily leave them unexhausted. The key inquiry
is whether she has presented these arguments to the BIA such that the agency
was put on notice. 13 At the BIA, Pan did little else other than argue that the
IJ erred as to her I-751 and continuance. She has exhausted her
10
See id. at 390 n.13 (citing Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir. 1999)
(holding that because the BIA had procedures in place for addressing the alleged violation
it must first have been raised in front of the BIA)).
11
See Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009); Goonsuwan, 252 F.3d at
390 n.13.
12
See Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021).
13
Vazquez v. Sessions, 885 F.3d 862, 868 (5th Cir. 2018).
6
Case: 19-60606 Document: 00516457924 Page: 7 Date Filed: 09/02/2022
No. 19-60606
administrative remedies. 14 The denial of the I-751 and continuance are the
only arguments this court has the power to consider on appeal.
Finally, the government argues that Pan has forfeited all of her
arguments by failing to brief them adequately. As we have concluded that we
have jurisdiction over only Pan’s arguments concerning the I-751 and
continuance, we will only consider the government’s argument as it relates
to those two issues. It is true that any issues not briefed on appeal are
forfeited. 15 It is equally true that Pan devotes almost the entirety of her brief
to the I-751 and continuance issues. These issues are not forfeited.
III
This court only has jurisdiction over Pan’s appeal as it relates to the
denial of her I-751 and her motion for a continuance. Pan alleges a due
process violation for both issues. She also asserts that the IJ abused her
discretion in denying the continuance.
A
Alleged due process violations are reviewed de novo. 16 Noncitizens in
removal proceedings are protected by the Due Process Clause. 17 But “[t]o
prevail on a claim regarding an alleged denial of due process rights, an alien
must make an initial showing of substantial prejudice.” 18 A noncitizen shows
substantial prejudice by making a “prima facie showing that the alleged
14
See Omari, 562 F.3d at 318.
15
See Rollins, 8 F.4th at 397; see also Fed. R. App. P. 28(a)(5), (8)(A); Soadjede
v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003) (per curiam).
16
De Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004).
17
Okpala v. Whitaker, 908 F.3d 965, 971 (5th Cir. 2018) (citing Manzano-Garcia v.
Gonzales, 413 F.3d 462, 470 (5th Cir. 2005) (per curiam)).
18
Id. (citing Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997)).
7
Case: 19-60606 Document: 00516457924 Page: 8 Date Filed: 09/02/2022
No. 19-60606
violation affected the outcome of the proceedings.” 19 A noncitizen satisfies
this standard by making out a prima facie case for relief supplemented by “a
strong showing in support” of their application. 20
To prevail on her due process claim regarding the denial of her I-751,
Pan must make a strong showing that she would be eligible for relief on her I-
751 application. 21 To prevail on her I-751 argument, Pan must show that she
was married in good faith and then treated cruelly and abandoned by her
then-husband. 22 Pan offers nothing more than barebones medical records to
support her argument. The medical records do not even purport to establish
a connection between her medical condition and the alleged abandonment
she suffered. Further, these records are the same evidence that she
submitted to USCIS and they are from several years after Pan suffered the
alleged abandonment. The records also do nothing to establish that Pan
entered the marriage in good faith. This is not a strong enough showing to
establish substantial prejudice regarding the denial of Pan’s I-751. 23
19
Id. (first citing Ogunfuye v. Holder, 610 F.3d 303, 306-07 (5th Cir. 2010); and then
citing Anwar, 116 F.3d at 144-45).
20
See Anwar, 116 F.3d at 144 (“Anwar must make a prima facie showing that he
was eligible for asylum and that he could have made a strong showing in support of his
application.”); Ogunfuye, 610 F.3d at 307 (finding no violation of due process because the
only reason offered for not submitting a necessary document was attorney neglect).
21
See Anwar, 116 F.3d at 144.
22
8 C.F.R. §§ 216.5(a)(1)(i)-(iii), 1216.5(a)(1)(i)-(iii) (2021).
23
See Anwar, 116 F.3d at 144 (finding no due process violation because noncitizen
failed to offer evidence demonstrating entitlement to relief); Bolvito v. Mukasey, 527 F.3d
428, 438 (5th Cir. 2008) (“On appeal, the petitioners fail to explain what evidence they
were unable to submit or elicit at the master calendar hearing, nor do they offer any
additional legal arguments that they did not present to the IJ.”). Cf. Molina v. Sewell, 983
F.2d 676, 680 (5th Cir. 1993) (finding requisite prejudice when noncitizen identified the
evidence he would have offered had he been advised of his right to present evidence at his
exclusion proceedings).
8
Case: 19-60606 Document: 00516457924 Page: 9 Date Filed: 09/02/2022
No. 19-60606
Nor does Pan offer a strong showing in support of her argument in
favor of a continuance. “[T]he denial of a continuance does not violate due
process where an alien fails to show good cause.” 24 Pan has the burden of
showing good cause, 25 and the BIA has made clear that when, as here, the
motion is based on lack of time to prepare, the noncitizen must show how the
denial caused “actual prejudice and harm and materially affected the
outcome of [her] case.” 26
To prevail on her due process claim stemming from the denial of her
continuance motion, Pan must show that the grant of a continuance would
have affected the outcome of the case by, for example, allowing her to put
forward a meritorious claim for relief. At the BIA, Pan submitted an
application for cancellation of removal, but she failed to offer any significant
evidence in support. She claims that her mother is an infirm, U.S. citizen but
she offered not so much as even a record of her mother’s birth certificate or
naturalization documentation. Nor does she offer any evidence that her
mother is, in fact, infirm. In short, Pan has done nothing to demonstrate that
her removal would cause the “exceptional and extremely unusual hardship”
necessary to sustain an application for cancellation of removal. 27 There is
nothing before this court that convinces us that Pan has made a “strong
24
Ali v. Gonzales, 440 F.3d 678, 681 (5th Cir. 2006) (per curiam).
25
Ramchandani v. Gonzales, 434 F.3d 337, 338 (5th Cir. 2005).
26
Matter of Sibrun, 18 I&N Dec. 354, 356-57 (B.I.A. 1983) (cited by this court in
unpublished cases, e.g., Mejia-Oviedos v. Sessions, 728 F. App’x 277, 279 (5th Cir. 2018)
(per curiam); Arora v. Keisler, 250 F. App’x 615, 616 (5th Cir. 2007) (per curiam)).
27
See 8 U.S.C. § 1229b(b)(1)(A)-(D) (requiring that the noncitizen’s removal
cause “exceptional and extremely unusual hardship to the alien’s . . . parent . . . who is a
citizen of the United States or an alien lawfully admitted for permanent residence”).
9
Case: 19-60606 Document: 00516457924 Page: 10 Date Filed: 09/02/2022
No. 19-60606
showing in support” of her application such that a remand would actually
change the outcome of the case. 28
Pan has failed to make a strong showing of support for either of her
due process arguments. They necessarily fail, and this court need not reach
the question of whether a due process violation actually occurred.
B
Decisions to deny a continuance are reviewed for abuse of
discretion. 29 There is no abuse of discretion so long as the decision is “not
capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so aberrational that it is arbitrary rather than the result of any
perceptible rational approach.” 30
Pan’s abuse of discretion argument fails. It is not an abuse of
discretion if the IJ offers a “perceptible rational approach” to the denial of a
continuance. 31 The IJ did just that when she criticized counsel for not
bringing the motion at any point prior to the third master calendar hearing.
Pan’s counsel has conceded several times that the IJ informed her that the
February hearing would be for applications as well as pleadings, and Pan has
not offered a single reason why counsel did not seek a continuance before the
hearing.
28
Anwar, 116 F.3d at 144.
29
Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir. 2008).
30
Cabral v. Holder, 632 F.3d 886, 890 (5th Cir. 2011) (quoting Galvez-Vergara v.
Gonzales, 484 F.3d 798, 801 (5th Cir. 2007)).
31
Id.10
Case: 19-60606 Document: 00516457924 Page: 11 Date Filed: 09/02/2022
No. 19-60606
* * *
The judgment of the Board of Immigration Appeals is AFFIRMED,
and Pan’s petition for review is DENIED.
11