Rauda-Castillo v. Lynch

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 13, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MILAGRO DE JESUS RAUDA-
CASTILLO; YOHANNA ESTEPHANIE
RAMOS-RAUDA,
Petitioners,
v. Nos. 14-9606 & 15-9507
(Petition for Review)
LORETTA E. LYNCH, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES and McHUGH, Circuit Judges.
_________________________________
Pro se petitioners, Milagro De Jesus Rauda-Castillo and Yohanna Estephanie
Ramos-Rauda, mother and daughter, are citizens of El Salvador. They seek review of
the Board of Immigration Appeals’ (BIA) order dismissing their appeal from the
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
denial of their applications for asylum, restriction on removal,1 and relief under the
Convention Against Torture (CAT). They also seek leave to proceed on appeal in
forma pauperis (IFP). We grant the IFP request and deny the petition in part and
dismiss in part for lack of jurisdiction.2
I.
Petitioners entered the United States on November 6, 2006. They were
promptly issued Notices to Appear in Texas alleging they were removable as aliens
present without being admitted or paroled. Represented by counsel, petitioners
conceded removability and applied for asylum, restriction on removal, and relief
under the CAT. Ms. Ramos-Rauda sought derivative relief through her mother,
Ms. Rauda-Castillo. Petitioners requested a change of venue from San Antonio,
Texas, to Los Angeles, California, which was granted on January 24, 2007. At
petitioners’ request, venue was again moved to Salt Lake City, Utah, on November 3,
2009.
On January 7, 2010, represented by new counsel, petitioners requested and
received a continuance until February 11, 2010. Additional hearings were set and
1
“Restriction on removal” was referred to as “withholding of removal” before
enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA). Although the BIA and the respondent refer to “withholding of
removal,” we use the term “restriction on removal” because this claim was filed after
IIRIRA’s effective date. See Neri-Garcia v. Holder, 696 F.3d 1003, 1006 n.1
(10th Cir. 2012).
2
Petitioners also filed a petition for review in the Ninth Circuit, which was
transferred to this court and consolidated with the petition filed here.
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continued for July 27, 2010, September 20, 2011, and October 6, 2011. Although
petitioners sought a continuance of the hearing scheduled for May 17, 2012, the
immigration judge (IJ) denied a continuance, noting that the case had been pending
for several years and petitioners had been warned that the case would proceed on the
May 17 hearing date.
At the May 17 hearing, petitioners appeared pro se, and Ms. Rauda-Castillo
testified. The IJ denied relief. Petitioners appealed to the BIA, arguing, as relevant
here, that the IJ should have granted them an additional continuance so they could be
represented by an attorney and that the case should be remanded to the Department of
Homeland Security (DHS) for the DHS to exercise prosecutorial discretion. The BIA
dismissed the appeal.
Petitioners appeal to this court, renewing their arguments that they should have
been granted another continuance and the BIA should have remanded their case to the
DHS. They have waived their argument that another change of venue should have
been granted, as well as their claims for asylum, restriction on removal, and CAT
protection, because they did not present these claims in their appellate brief.
See Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1209-10 (10th Cir. 2006)
(stating issues not supported in the opening brief by argument, legal authority, and
record citations are waived).
II.
The BIA issued a single-member decision affirming the IJ’s order. “Thus,
although we will not affirm on grounds raised in the IJ decision unless they are relied
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upon by the BIA, we are not precluded from consulting the IJ’s more complete
explanation of those same grounds.” Maatougui v. Holder, 738 F.3d 1230, 1237 n.2
(10th Cir. 2013) (brackets, ellipsis, and internal quotation marks omitted). We
construe petitioners’ pro se filings liberally. Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005).
“We review the decision to deny a continuance for an abuse of discretion.”
Luevano v. Holder, 660 F.3d 1207, 1213 (10th Cir. 2011) (ellipsis and internal
quotation marks omitted); see also id. (“Because an IJ’s discretion to deny a request
for a continuance arises from a regulation, 8 C.F.R. § 1003.29, we possess
jurisdiction to consider the denial of a motion for continuance . . . .”) (brackets
omitted). We will grant review on this ground only if a continuance was denied
“without a rational explanation, inexplicably departed from established policies, or
rested on an impermissible basis.” Id. (internal quotation marks omitted).
Petitioners argue that they should have been granted a continuance so they
could obtain counsel, and the fact that they had engaged three different lawyers in the
past weighed in favor of an additional continuance. As noted, petitioners had
requested and received numerous continuances. They were warned that the hearing
set for May 17, 2012, would proceed. As petitioners acknowledge, their case had
been pending for several years. Under these circumstances, we find no abuse of
discretion in denying a further continuance. Therefore, we deny review on this
ground.
4
Petitioners also assert error in the BIA’s refusal to close the case
administratively to allow the DHS to exercise prosecutorial discretion. The BIA held
that it did not have jurisdiction to instruct the DHS to exercise prosecutorial
discretion.3 We review this legal determination de novo, Dallakoti v. Holder,
619 F.3d 1264, 1267 (10th Cir. 2010) (“We review the BIA’s legal determinations
de novo . . . .”), and agree that the agency lacked jurisdiction to direct the DHS to
exercise prosecutorial discretion, see Cortez-Felipe v. INS, 245 F.3d 1054, 1057
(9th Cir. 2001) (holding that the IJ and BIA lack authority to review discretionary
decisions regarding when and whether to initiate removal proceedings); see also
Matter of Bahta, 22 I. & N. Dec. 1381, 1391-92 (BIA 2000) (stating BIA lacks
jurisdiction over the Immigration and Naturalization Service’s (INS) exercise of
prosecutorial discretion).4 Accordingly, the BIA correctly determined it lacked
jurisdiction to direct the DHS to exercise prosecutorial discretion.
To the extent petitioners request this court to direct the BIA to close the case
administratively, doing so would be meaningless since the BIA’s order dismissing the
appeal is a final order. See Batubara v. Holder, 733 F.3d 1040, 1042 (10th Cir.
2013) (holding “the BIA’s decision upholding the IJ’s finding of removability . . .
3
The BIA stated that and that petitioners were free to apply directly to the
DHS for such relief.
4
“The Homeland Security Act of 2002 transferred authority to commence
removal proceedings from the [INS] to the Secretary of DHS.” Ali v. Mukasey,
524 F.3d 145, 150 (2d Cir. 2008). Therefore, references to the INS apply to the
DHS.
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was the final order”). “The administrative closing of a case does not result in a final
order. It is merely an administrative convenience which allows the removal of cases
from the calendar in appropriate situations.” In re Gutierrez-Lopez, 21 I. & N. Dec.
479, 480 (BIA 1996) (internal quotation marks omitted), overruled on other grounds
by Matter of Avetisyan, 25 I. & N. Dec. 688, 690 (BIA 2012). Petitioners also
apparently ask this court to direct the DHS to engage in mediation with them, which
is in essence a request to order the DHS to exercise prosecutorial discretion. But the
DHS has sole authority to exercise prosecutorial discretion in immigration cases and
we lack jurisdiction over those decisions. See 8 U.S.C. 1252(g); Reno v.
American-Arab Anti-Discrimination Comm., 525 U.S. 471, 485 n.9 (1999)
(“Section 1252(g) was directed against a particular evil: attempts to impose judicial
constraints upon prosecutorial discretion.”); Veloz-Luvevano v. Lynch, __ F.3d __,
2015 WL 5097611, *5 (10th Cir. Aug. 31, 2015) (holding court of appeals lacks
jurisdiction over “the government’s prosecutorial discretion decisions”).
Petitioners also assert that Ms. Ramos-Rauda has been granted Deferred
Action for Childhood Arrivals, thus making her mother, Ms. Rauda-Castillo, eligible
for discretionary relief. The respondent notes that petitioners have provided no
evidence to support this assertion. “Deferred action is a use of prosecutorial
discretion to defer removal action against an individual for a certain period of time.
Deferred action does not provide lawful status.” See http://www.uscis.
gov/humanitarian/consideration-deferred-action-childhood-arrivals-daca (last visited
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Oct. 9, 2015). As we held above, we lack jurisdiction over this claim for the DHS to
exercise prosecutorial discretion.
III.
Petitioners’ IFP motion is granted. The petition for review is denied in part
and dismissed in part for lack of jurisdiction.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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