Jose Rivera-Campos v. Merrick Garland ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-1587
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Jose Ricardo Rivera-Campos
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: November 22, 2021
Filed: November 29, 2021
[Unpublished]
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Before KELLY, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.
Jose Ricardo Rivera-Campos, a native and citizen of El Salvador, petitions for
review of an order of the Board of Immigration Appeals (BIA), which dismissed his
appeal from an immigration judge’s decision. The immigration judge denied his
motion to reopen his removal proceedings, which he argued were fundamentally
unfair.
Upon de novo review, we conclude Rivera-Campos’s due process claim fails.
See Alva-Arellano v. Lynch, 811 F.3d 1064, 1066 (8th Cir. 2016) (standard of
review). To establish a due process violation, Rivera-Campos needed to demonstrate
both a fundamental procedural error and prejudice. See id. Even assuming there
were fundamental procedural errors in his individual hearing before the immigration
judge, we agree with the BIA that he did not demonstrate actual prejudice. See
United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995) (citation omitted)
(“Actual prejudice exists where defects in the deportation proceedings ‘may well have
resulted in a deportation that would not otherwise have occurred.’”).
Rivera-Campos undisputedly sought reopening to apply for relief, but, as the
BIA explained, he failed to submit the required documentary information. See 8
U.S.C. § 1229a(c)(7)(B) (“The motion to reopen shall state the new facts that will be
proven at a hearing to be held if the motion is granted, and shall be supported by
affidavits or other evidentiary material.”); 8 C.F.R. § 1003.23(b)(3) (stating the same
and adding that “[a]ny motion to reopen for the purpose of acting on an application
for relief must be accompanied by the appropriate application for relief and all
supporting documents”); see also Njie v. Lynch, 808 F.3d 380, 383-84 (8th Cir. 2015)
(concluding that when a noncitizen seeks reopening for an immigration judge to
consider an application for relief not previously filed, the noncitizen is “required to
meet the substantive requirements” governing motions to reopen, including regulatory
requirements). Because Rivera-Campos failed to comply, the BIA did not err in
concluding he failed to establish prejudice. See Poniman v. Gonzales, 481 F.3d 1008,
1011 (8th Cir. 2007) (reiterating that a noncitizen’s failure to establish a prima facie
case for the substantive relief sought, and the failure to introduce previously
unavailable, material evidence, are two of the at least three independent grounds on
which the BIA may deny reopening (citing INS v. Abudu, 485 U.S. 94, 104-05
(1988))); see also Ramirez v. Sessions, 902 F.3d 764, 772 (8th Cir. 2018) (“Even if
the hearing contained fundamental errors, it is axiomatic in this Circuit that an alien’s
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due process claim must demonstrate both a fundamental procedural error and
prejudice.”).
To the extent Rivera-Campos also argues the BIA violated his due process
rights by failing to prepare a transcript in response to his motion to reopen, we
conclude the BIA did not err. Even assuming, without deciding, that he had a
protected liberty interest in the discretionary grant of reopening, see Ali v. Barr, 924
F.3d 983, 987 (8th Cir. 2019), we conclude the transcript would not have altered the
outcome for the reasons stated above.
For these reasons, we conclude the BIA did not err in denying the motion to
reopen. See Ramirez, 902 F.3d at 775 (denials of motions to reopen are reviewed for
an abuse of discretion). Accordingly, we deny the petition for review.
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