Elton Mendoza Rizo v. Loretta E. Lynch , 810 F.3d 688 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELTON YADIMIR MENDOZA RIZO, No. 13-74216
Petitioner,
Agency No.
v. A099-907-845
LORETTA E. LYNCH, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 20, 2015—San Francisco, California
Filed January 14, 2016
Before: Milan D. Smith, Jr. and N. Randy Smith, Circuit
Judges, and Shira Ann Scheindlin,* Senior District Judge.
Opinion by Judge Scheindlin
*
The Honorable Shira Ann Scheindlin, Senior District Judge for the
U.S. District Court for the Southern District of New York, sitting by
designation.
2 RIZO V. LYNCH
SUMMARY**
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ denial of asylum, concluding that the
Board’s remand to the immigration judge for proceedings
related to voluntary departure did not deprive this court of
jurisdiction over the petition, but this court lacked jurisdiction
to review petitioner’s unexhausted asylum claim, and the
manner in which the IJ conducted removal proceedings did
not deprive petitioner of due process.
The panel clarified that Pinto v. Holder, 648 F.3d 976,
980 (9th Cir. 2011) remains good law following Abdisalan v.
Holder, 774 F.3d 517 (9th Cir. 2014) (en banc), and this court
has jurisdiction to review a petition where all substantive
matters judicially reviewable by this court have been
finalized, and the only pending matter concerns voluntary
departure — itself a form of removal, the granting or denial
of which this court lacks jurisdiction to review pursuant to
8 U.S.C. § 1299c(f).
The panel held that petitioner’s asylum claim was
unexhausted because his statements to the Board failed to
meaningfully apprise it of the basis for his appeal.
The panel further held that although the IJ conducted the
removal hearing in an aggressive manner, the IJ did not
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
RIZO V. LYNCH 3
violate petitioner’s due process rights during the removal
hearing.
COUNSEL
Stephanie Rice (argued), Samantha L. Amato, Hardy Law
Group, Reno, Nevada; Ian Silverberg, Law Offices of Ian
Silverberg, Reno, Nevada, for Petitioner.
Craig Alan Newell (argued) and Jeffrey J. Bernstein, Joyce R.
Branda, Acting Assistant Attorney General, and Carl
McIntyre, Assistant Director, Office of Immigration
Litigation, Civil Division, Washington, D.C., for Respondent.
OPINION
SCHEINDLIN, District Judge:
Elton Yadimir Mendoza Rizo, a native and citizen of
Nicaragua, petitions for review of a decision by the Board of
Immigration Appeals (“BIA”) affirming the denial of his
application for asylum and denying Rizo’s due process claim
with regard to his removal proceedings before the
Immigration Judge (“IJ”).1 The government argues that Rizo
is not currently subject to a final order of removal, as the BIA
remanded Rizo’s case to the IJ for further proceedings that
1
Rizo also asked the BIA to reverse the IJ’s denial of his application for
withholding of removal, and relief under the Convention Against Torture
(“CAT”). Because Rizo has not asked us to review those claims in his
briefing for this appeal, we do not discuss those issues. See Rizk v. Holder,
629 F.3d 1083, 1091 n.3 (9th Cir. 2011).
4 RIZO V. LYNCH
remain pending, and that this court therefore lacks
jurisdiction to review his claims.
We disagree. Because the BIA remanded Rizo’s case to
the IJ solely for proceedings related to voluntary departure, he
is subject to a final order of removal reviewable by this court.
Because Rizo’s asylum claim was not meaningfully
exhausted before the BIA, this court lacks jurisdiction to
review it. Finally, Rizo has failed to demonstrate that the
manner in which the IJ conducted the removal proceedings
violated his due process rights. For these reasons, the petition
is denied.
FACTUAL AND PROCEDURAL BACKGROUND
Rizo’s father, a general prosecutor for the Constitutional
Liberty Party in Nicaragua, was murdered by Sandinista
political opponents in Nicaragua in 2001. Rizo spent several
years in hiding with his mother and brother (also a
Constitutional Liberty Party member), before his brother fled
to the United States in 2005. Rizo fled Nicaragua and entered
the United States as an unaccompanied minor on April 25,
2007. On September 28, 2009, at the age of twenty, Rizo filed
an I-589 Application for Asylum. Rizo was issued a notice to
appear for removal proceedings by the Department of
Homeland Security on December 9, 2009, after he canceled
his asylum interview.
Rizo’s removal hearing occurred on February 9, 2010.
Rizo conceded to the charge of removability, but sought relief
in the form of asylum, withholding of removal, and protection
under the CAT — or, in the alternative, voluntary departure.
Rizo presented both himself and his brother as witnesses;
both were aggressively cross-examined by the IJ. The IJ
RIZO V. LYNCH 5
found that Rizo’s asylum claim was untimely and that he did
not have a well-founded fear of persecution, including future
persecution, should he return home. Voluntary departure was
granted.
On November 16, 2011, Rizo filed a timely notice of
appeal to the BIA appealing the IJ’s decision and charging
the IJ with violation of his due process rights, due to the
aggressive manner in which the IJ conducted the hearing. The
BIA rejected petitioner’s appeal of the IJ’s decision. In its
decision, the BIA determined that Rizo had not meaningfully
challenged the IJ’s disposition of his asylum claim on appeal.
The BIA found no merit in Rizo’s due process claim, as he
had shown neither error nor prejudice.
Rizo’s case was remanded to the IJ solely for proceedings
related to the granting of voluntary departure. This appeal
followed.
JURISDICTION AND STANDARD OF REVIEW
This court has jurisdiction to review “a final order of
removal,” 8 U.S.C. § 1252, defined as “the order” of the IJ
“concluding that the alien is deportable or ordering
deportation.” Id. § 1101(a)(47)(A). “The order” then becomes
“final upon the earlier of”: “(i) a determination by the Board
of Immigration Appeals affirming such order; or (ii) the
expiration of the period in which the alien is permitted to seek
review of such order by the Board of Immigration Appeals.”
Id. § 1101(a)(47)(B).
The factual findings underlying the BIA’s determination
of eligibility for asylum are reviewed to determine whether
those findings are supported by substantial evidence. See,
6 RIZO V. LYNCH
e.g., Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir.
2014). Challenges to IJ proceedings on due process grounds
are reviewed by this court de novo. See, e.g., Jimenez-Angeles
v. Ashcroft, 291 F.3d 594, 599–600 (9th Cir. 2002).
DISCUSSION
A. Rizo Is Subject to a Final Order of Removal
Our precedent dictates that Rizo petitioned for review
from a final order of removal. The IJ’s decision was an order
of removal: after denying Rizo’s claims for asylum,
withholding of removal, and protection under the CAT, the IJ
granted a period of voluntary departure with an alternate
order of removal to Nicaragua. This order of removal then
became final when the BIA affirmed the IJ’s disposition of
Rizo’s claims. See 8 U.S.C. § 1101(a)(47)(B).
The BIA’s remand to the IJ did not affect the finality of
the order of removal, as the IJ’s only role on remand was to
provide certain necessary advisals regarding voluntary
departure, and grant Rizo a new voluntary departure period.
The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 explicitly deprives us of
jurisdiction to review an agency’s disposition of a petitioner’s
request for voluntary departure. See 8 U.S.C. § 1229c(f).
“Accordingly, the BIA’s decision denying asylum,
withholding of removal, and CAT protection but remanding
to the IJ for voluntary departure proceedings is a final order
of removal . . . .” Pinto v. Holder, 648 F.3d 976, 980 (9th Cir.
2011).
The government, however, submits that this case is
controlled by our recent decision in Abdisalan v. Holder,
RIZO V. LYNCH 7
774 F.3d 517 (9th Cir. 2014). In that case, we held that a
decision by the BIA cannot be a final order of removal until
all administrative proceedings have concluded, even if the
BIA decision finalizes certain claims while remanding others
to the IJ for further proceedings. Id. at 526. Abdisalan
resolved a tension between two decisions of this circuit, Go
v. Holder, 640 F.3d 1047 (9th Cir. 2011) and Li v. Holder,
656 F.3d 898 (9th Cir. 2011). In Go, we held that there was
no final order of removal — and we therefore lacked
jurisdiction — until all administrative proceedings before the
IJ had concluded. 640 F.3d at 1051–52. In Li, we held that
there was a final order of removal as to an asylum claim when
the BIA affirmed the IJ’s denial of said claim, even when
other issues were remanded to the IJ for further proceedings.
656 F.3d at 904. Abdisalan closed this split in our circuit’s
law in favor of Go, holding that “when the [BIA] issues a
decision that denies some claims but remands any other
claims for relief to an [IJ] for further proceedings . . . the BIA
decision is not a final order of removal with regard to any of
the claims.” 774 F.3d at 520.
Today, this court clarifies our holding in Abdisalan —
and holds that Pinto remains the law of the Circuit.2 As we
have recognized elsewhere, “[o]ur [] en banc decision in
Abdisalan v. Holder does not disrupt our line of cases holding
that a remand by the BIA to an IJ solely to consider voluntary
departure does not affect the finality of the BIA’s decision for
purposes of our review.” Solano-Rivera v. Holder, 599 Fed.
App’x 271, 271 (9th Cir. 2015) (citation omitted). In this
2
Under the facts of the Abdisalan case, we specifically declined to
“revisit our rule [set forth in Pinto] that the BIA’s decision is a final order
of removal when it remands for consideration of voluntary departure but
denies all other forms of relief.” Abdisalan, 774 F.3d at 526 n.8.
8 RIZO V. LYNCH
case, as in Pinto, the court is presented with a petition where
all substantive matters judicially reviewable by this court
have been finalized. The only pending matter concerns
voluntary departure — itself a form of removal, the granting
or denial of which we are powerless to review by
congressional mandate. See 8 U.S.C. § 1299c(f).
The concerns we expressed in Adbisalan are therefore
completely absent: there is no “mixed BIA decision”
finalizing the negative disposition of certain claims for relief
while remanding other claims that could yet lead to relief
from deportation. 774 F.3d at 524. There is no threat that the
order of removal could become final at multiple points in
time. See id. When the BIA remanded Rizo’s claim to the IJ,
Rizo was subject to the single, final order of removal
contemplated by Congress and confirmed by this court in
Abdisalan. See id. at 526 (“These agency interpretations shed
further light on what the text of the statute already implies:
in a case like Abdisalan’s, there is only one final order
of removal, and when the BIA remands to the IJ, that order
is not ‘final’ until administrative proceedings have
concluded.”). Any concerns regarding the efficient utilization
of this court’s limited resources are also ameliorated. The
complete portfolio of issues capable of being reviewed by this
court is finalized, even if non-reviewable administrative
matters regarding voluntary departure remain pending.
Abdisalan did not overturn Pinto, and does not disturb
Pinto’s holding that a BIA remand for further proceedings as
to voluntary departure does not affect the finality of an
otherwise-final order of removal. We have jurisdiction over
Rizo’s petition for review under 8 U.S.C. § 1252, and we may
review the merits of his petition.
RIZO V. LYNCH 9
B. Rizo’s Claims Fail
1. Asylum
This court lacks jurisdiction over Rizo’s asylum claim, as
the BIA correctly determined that he had failed to
meaningfully challenge the IJ’s denial of asylum on appeal.
Rizo’s brief before the BIA contains only two sentences
regarding the IJ’s denial of asylum, which reads:
[I]t is also respectfully submitted that the
Respondent did present a case of a well-
founded fear of persecution on the basis of
imputed political opinion, and that the
evidence of the brutal killing of his father and
of other families who were involved in similar
political activity, clearly supports a well-
founded fear of persecution, and certainly not
a “hysterical” fear, as was stated by the [IJ].
The government presented no evidence of
changed conditions.
This conclusory statement does not apprise the BIA of the
particular basis for Rizo’s claim that the IJ erred; it merely
asserts that the IJ erred. Such a submission does not
meaningfully challenge the IJ’s decision on appeal.
Rojas-Garcia v. Ashcroft, 339 F.3d 814, 820–21 (9th Cir.
2003).3 Furthermore, Rizo failed to challenge the IJ’s finding
3
In Rojas-Garcia v. Ashcroft, this court instructed that the petitioner is
required to set forth the basis for challenging the IJ’s decision.
It should be clear whether the alleged impropriety in the
[IJ] decision lies with the [IJ’s] interpretation of the
10 RIZO V. LYNCH
that Rizo’s asylum application was time-barred, stating only
that “[i]f the court finds that the Respondent’s arguments in
support of the late filing of the I-589 are not compelling, then
it is respectfully submitted that the Respondent did make out
a prima facie case of eligibility for withholding of removal.”
Because Rizo failed to meaningfully challenge the IJ’s
disposition of his asylum claim on appeal, he failed to
exhaust his asylum claim below — and this court therefore
has no jurisdiction to review that decision. See Abebe v.
Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per
curiam) (holding that claims raised, but then not pursued, in
briefing to the BIA are not properly exhausted).
2. Due Process
Rizo contends his initial removal proceeding violated his
right to due process because the IJ “exceeded his bounds as
a neutral arbiter and usurped the role of opposing counsel” in
aggressively questioning both Rizo and Rizo’s witness while
testifying. The BIA rejected Rizo’s claim.
facts or his application of legal standards. Where a
question of law is presented, supporting authority
should be included, and where the dispute is on the
facts, there should be a discussion of the particular
details contested.
339 F.3d at 820 (alteration omitted) (quoting Toquero v. INS, 956 F.2d
193, 195 (9th Cir. 1992)). If the petitioner does not specify what errors the
IJ made, the BIA would be “left to reconstruct the IJ proceedings, infer
factual error without knowledge of what precise error is complained of,
and build the legal analysis from only general statements of legal
conclusion.” Id. at 821.
 RIZO V. LYNCH 11
We will reverse the BIA’s decision on due process
grounds only if the underlying IJ proceeding was “so
fundamentally unfair that the alien was prevented from
reasonably presenting his case.” Platero-Cortez v. INS,
804 F.2d 1127, 1132 (9th Cir. 1986). Importantly, a mere
showing that the IJ was unfriendly, confrontational, or acted
in an adversarial manner is not enough to meet this burden.
See, e.g., Melkonian v. Ashcroft, 320 F.3d 1061, 1072 (9th
Cir. 2003); Perez-Lastor v. INS, 208 F.3d 773, 782 n.9 (9th
Cir. 2000); see also 8 C.F.R. § 1003.10 (IJ empowered to
“interrogate, examine, and cross-examine” witnesses). Even
if a removal hearing was conducted in a fundamentally unfair
manner, a “petitioner must show prejudice, which means that
the outcome of the proceeding may have been affected by the
alleged violation.” Zolotukhin v. Gonzales, 417 F.3d 1073,
1076 (9th Cir. 2005) (internal quotation marks and alteration
omitted).
Rizo’s due process rights were not violated by the IJ.
While the record indicates that the IJ conducted Rizo’s
removal hearing in an aggressive manner, the IJ did not deny
him a fair hearing. Rizo was permitted to testify on his own
behalf, was permitted to present the testimony of an
additional witness (the only other witness he proffered), and
was permitted to submit additional documentary evidence.
Furthermore, Rizo’s counsel never suggested — either in his
brief before the BIA, or at the IJ hearing itself — that the IJ
had obstructed counsel’s ability to represent his client. Rizo
was able to reasonably present his case. We therefore affirm
the BIA’s dismissal of Rizo’s due process claim.
12 RIZO V. LYNCH
CONCLUSION
We hold that Pinto v. Holder remains good law after our
decision in Abdisalan v. Holder, and that Rizo was therefore
subject to a final order of removal when the BIA remanded
his case to the IJ for proceedings related solely to voluntary
departure. Rizo’s due process rights were not violated by the
IJ during the removal hearing. Rizo’s remaining asylum claim
fails for non-exhaustion. Rizo’s petition for review is denied.
PETITION DENIED.