Gheorghe Marcus v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
MAY 6 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GHEORGHE MARCUS, Nos. 17-71368
19-70924
Petitioner,
Agency No. A096-166-394
v.
MERRICK B. GARLAND, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 4, 2021**
Portland, Oregon
Before: W. FLETCHER and FRIEDLAND, Circuit Judges, and BLOCK,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
Gheorghe Marcus petitions for review of two decisions by the Board of
Immigration Appeals (“BIA”). In 17-71368, the BIA affirmed the Immigration
Judge’s (“IJ”) conclusion that Marcus had filed a frivolous asylum application, and
affirmed denials of Marcus’ motion to terminate, his motions to suppress and strike
evidence that the IJ relied on during his removal proceedings, and his motion to
obtain his Alien file under Dent v. Holder, 627 F.3d 365 (9th Cir. 2010). In 19-
70924, the BIA denied as untimely his motion to reopen. We deny the first
petition and dismiss the second.
Because the factual and procedural history is known to the parties, we do not
recount it here.
1. Motion to Terminate: The Immigration and Nationality Act (“INA”)
imposes a five-year statute of limitations on rescission of adjustment of status as a
lawful permanent resident. See 8 U.S.C. § 1256(a). The Department of Homeland
Security (“DHS”) commenced removal proceedings against Marcus in 2014, seven
years after he received adjustment of status. He contends that his removal
proceeding was time-barred by § 1256(a) because it was tantamount to a rescission
of adjustment of status. He insists that the IJ therefore erred in denying his motion
to terminate and the BIA erred in affirming that denial. This argument fails. In
this circuit, the statute of limitations in § 1256(a) applies only to rescission of
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status proceedings and not to removal proceedings. See Oloteo v. INS, 643 F.2d
679, 682–83 (9th Cir. 1981). Marcus has not demonstrated Oloteo is “clearly
irreconcilable with the reasoning or theory of intervening higher authority.” Miller
v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). We are therefore bound
by our holding in Oloteo.
2. Motion to Suppress: During an interview with a U.S. Citizenship and
Immigration Services (“USCIS”) officer concerning his pending application for
naturalization, Marcus admitted to knowingly lying on his asylum application. He
argues that the IJ should have suppressed this evidence because the USCIS officer
had never advised him of his right to counsel. But the government need not notify
a noncitizen of his right to counsel until formal proceedings commence. 8 C.F.R.
§ 287.3(c). Because the USCIS interview took place before DHS formally
commenced removal proceedings by filing a Notice to Appear (“NTA”), the
government had no duty to inform him of his right to counsel. See
Samayoa-Martinez v. Holder, 558 F.3d 897, 901 (9th Cir. 2009).
The requirement in the Administrative Procedure Act that any person
“compelled to appear” before an agency is “entitled to be accompanied” by counsel
could not apply here because Marcus was not “compelled to appear.” 5 U.S.C.
3
§ 555(b).1 Rather, he applied pro se for naturalization and appeared at the USCIS
interview of his own volition.
Moreover, the USCIS interview resulted in no constitutional violation, much
less a violation so “egregious” that it would support the invocation of the
exclusionary rule in an immigration proceeding. INS v. Lopez-Mendoza, 468 U.S.
1032, 1050–51 (1984). Due process is not violated where a petitioner is “treated
‘fine’” and “ma[kes] his statements ‘voluntarily.’” Gonzaga-Ortega v. Holder,
736 F.3d 795, 804 (9th Cir. 2013). The USCIS officer did not coerce Marcus and
told him that he “ha[d] the ability to refuse to answer a question.” Marcus
voluntarily answered the questions. The BIA correctly affirmed the denial of the
motion to suppress.
3. Motion to Strike: A removal proceeding must be conducted “in accord
with due process standards of fundamental fairness.” Ramirez-Alejandre v.
Ashcroft, 320 F.3d 858, 862 (9th Cir. 2003) (en banc) (internal citation and
quotation marks omitted). Marcus’ statements were not hearsay, and, in any event,
hearsay is admissible in removal proceedings. Id. The minor mistake in the
transcript did not prejudice Marcus. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.
1
Whether the Administrative Procedure Act applies to USCIS interview
proceedings is an unsettled question that we need not reach in this action because
Marcus was not “compelled to appear.”
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2000). The BIA did not err in affirming the IJ’s denial of Marcus’ motion to strike
the interview transcript.
4. Dent Motion: The BIA correctly concluded that the issue raised in
Marcus’ motion for his Alien file (“A-file”) under Dent v. Holder, 627 F.3d 365(9th Cir. 2010) is moot. Because Marcus obtained the relevant parts of his A-file
through FOIA, he was able to fully and fairly litigate his claim in front of the IJ.
Further, because Marcus does not contest the IJ’s factual findings, any possible due
process violation did not prejudice him. See id. at 374.
5. Motion to Reopen: Marcus argues that the BIA should have reopened his
case because the initial NTA lacked the time and date of the hearing. But the
initial NTA need not include either detail, and Marcus later received notice of both.
See Karingithi v. Whitaker, 913 F.3d 1158, 1158–59 (9th Cir. 2019); 8 C.F.R. §§
1003.14(a), 1003.18(b). Because there was no legal error, we lack jurisdiction to
review the BIA’s decision. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir.
2016); 8 U.S.C. § 1252(a)(2)(D).
PETITION FOR REVIEW IN 17-71368 DENIED AND PETITION
FOR REVIEW IN 19-70924 DISMISSED.
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