Erick Alan Cruz Valdez v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13136
Non-Argument Calendar
________________________
Agency No. A207-160-712
ERICK ALAN CRUZ-VALDEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 1, 2019)
Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Erick Cruz-Valdez petitions for review of the Board of Immigration
Appeals’ (“BIA”) decision affirming the immigration judge’s removal order. After
careful consideration, we deny his petition for review.
I.
Erick Cruz-Valdez is a 27-year old native and citizen of Mexico who arrived
in the United States when he was fifteen years old. He earlier received Deferred
Action for Childhood Arrivals (“DACA”) protection. However, Cruz-Valdez’s
DACA status was revoked after he was arrested on September 17, 2017, for
driving under the influence. The day after his arrest, the Department of Homeland
Security (“DHS”) served him with a Notice to Appear (“NTA”), charging him with
being removable for staying in the United States without admission or parole and
for lacking a valid visa or other entry document at the time of his application for
admission. The NTA ordered him to appear at an address “to be set” and at a date
and time “to be set.” Cruz-Valdez refused to sign the NTA. The Executive Office
for Immigration Review eventually sent Cruz-Valdez a Notice of Hearing on
October 3, 2017, which notified him that his hearing would take place in Pompano
Beach, Florida at 8:00 AM on October 5, 2017.
Cruz-Valdez, represented by counsel, appeared before the immigration judge
(“IJ”) on October 5, 2017. Counsel acknowledged proper service of the NTA and
made no mention of the missing date, time, and location on the form. Counsel also
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conceded Cruz-Valdez was removable as charged. The hearing was continued, so
counsel could procure Cruz-Valdez’s arrest records for driving under the influence.
Two weeks later, Cruz-Valdez appeared at his hearing with a different
attorney from the same law firm. Counsel again acknowledged proper service of
the NTA and conceded Cruz-Valdez was removable as charged. Counsel informed
the IJ that Cruz-Valdez intended to pursue withholding of removal and protection
under the Convention Against Torture. The IJ ordered proceedings continued to
give Cruz-Valdez some time to prepare his applications for relief.
On November 9, 2017, Cruz-Valdez, represented by new counsel, requested
and received two additional weeks to continue filling out his applications. He
explained to the IJ that he terminated his previous counsel because he “tried to
communicate with them,” but they “never answer[ed] the phone.” Proceedings
were continued several more times after that. Cruz-Valdez’s final merits hearing
was eventually scheduled for January 31, 2018, on his application for cancellation
of removal. He did not submit an application for asylum, withholding of removal,
or CAT withholding.
On the day of the hearing, counsel informed the IJ that Cruz-Valdez fired
her and submitted a motion to withdraw. Cruz-Valdez confirmed his wish to
terminate counsel from his case because he was not happy with her representation.
Before ruling on counsel’s motion to withdraw, the IJ asked Cruz-Valdez whether
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he understood he would “have to proceed with [his] case today.” The IJ also
informed Cruz-Valdez that if he did not wish to proceed, he could voluntarily
depart at his own expense. Cruz-Valdez replied that he wished “to continue on
with [his] case.” The IJ then granted counsel’s motion to withdraw.
Shortly after, Cruz-Valdez again expressed his desire to “continue on with
[his] case” because he “cannot return to [his] country.” The IJ explained that
because Cruz-Valdez submitted only an application for cancellation of removal, his
application had nothing to do with fear of returning. Cruz-Valdez responded that
he thought the IJ had offered him “asylum” and he thought he would qualify for
relief. The IJ told Cruz-Valdez he would not be eligible for asylum because he did
not file an application for asylum within one year of arriving in the United States
but that he “would be eligible to seek withholding of removal, which is a much
higher standard.” The IJ proceeded to explain the requirements for withholding of
removal and offered to give Cruz-Valdez a withholding application if he wished to
pursue it. The IJ also informed Cruz-Valdez he would continue to remain in
custody without bond during the pendency of his application for withholding.
Cruz-Valdez asked in response whether applying for withholding of removal
would “stop” his application for cancellation of removal. The IJ replied that the
application for cancellation of removal was “all that[’s] pending.” Cruz-Valdez
then told the IJ he wished to continue with his cancellation application and he
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understood his decision to proceed with cancellation of removal meant he would
not be able to apply for withholding of removal after the conclusion of his
cancellation proceedings.
Based on Cruz-Valdez’s statements, the IJ went forward with the merits
hearing on Cruz-Valdez’s application for cancellation of removal. Cruz-Valdez
testified he had one son, who was born in 2008 in the United States, although he
was not listed as the father on the birth certificate. He said his mother, father, and
five sisters still lived in Mexico. He testified he had committed four other traffic
violations, in addition to his 2017 arrest for driving under the influence, during his
time in the United States.
At the conclusion of Cruz-Valdez’s testimony, the IJ announced his decision
to deny Cruz-Valdez’s application for cancellation of removal. The IJ found Cruz-
Valdez failed to establish the existence of a qualifying relative, because “there
[was] no documentary evidence[] relating to the familial relationship of [Cruz-
Valdez’s] child and [Cruz-Valdez].” The IJ further found Cruz-Valdez failed to
establish good moral character during his time in the United States due to his
previous encounters with law enforcement, including his arrest for driving under
the influence, and several improperly filed tax returns. The IJ also found Cruz-
Valdez did not establish “the exceptional and extremely unusual hardship standard
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to be eligible for cancellation of removal.” The IJ then ordered Cruz-Valdez
removed to Mexico.
Cruz-Valdez appealed to the BIA, arguing the IJ violated his due process
rights by proceeding with a merits hearing on the same day his attorney withdrew.
He also argued the IJ should have continued his hearing after he told the IJ that he
feared returning to Mexico. The BIA dismissed the appeal and affirmed the IJ’s
order of removal. The BIA found that because the IJ gave Cruz-Valdez three
opportunities to find counsel, the IJ did not commit a due process violation by
proceeding with the merits hearing following the withdrawal of Cruz-Valdez’s
third attorney. For similar reasons, the BIA concluded the IJ had no obligation to
continue proceedings on January 31, 2018, so Cruz-Valdez could find a new
attorney, particularly since there were no allegations that any of the attorneys
provided ineffective assistance. The BIA rejected Cruz-Valdez’s argument that the
IJ “exhibited bias or otherwise did not act as a neutral arbiter” during the hearing.
Cruz-Valdez timely petitioned this Court for review.
II.
This Court determines its subject matter jurisdiction de novo. See Guzman-
Munoz v. U.S. Att’y Gen., 733 F.3d 1311, 1313 (11th Cir. 2013) (per curiam). We
also review de novo constitutional claims and questions of law. See Zhou Hua Zhu
v. U.S. Att’y Gen., 703 F.3d 1303, 1307 (11th Cir. 2013). We review an IJ’s
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decision not to grant a continuance for abuse of discretion. See Zafar v. U.S. Att’y
Gen., 461 F.3d 1357, 1362 (11th Cir. 2006). Factual findings by the agency are
reviewed for substantial evidence. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230–
31 (11th Cir. 2006) (per curiam). We will reverse an agency’s factual findings
only if “the evidence compels a reasonable fact finder to find otherwise.” Id.
(quotation marks omitted).
III.
To begin, we reject Cruz-Valdez’s argument that jurisdiction did not
properly vest over his removal proceedings because DHS served him with an NTA
lacking the time, date, and location of his hearing.1 As this Court recently held in
Perez-Sanchez, neither the statute, 8 U.S.C. § 1229(a), nor the regulation, 8 C.F.R.
§ 1003.14(a), create rules of jurisdictional significance. Perez-Sanchez, 2019 WL
3940873, at *7. Thus, even though Cruz-Valdez’s NTA was deficient under
§ 1229(a), see Perez-Sanchez, 2019 WL 3940873, at *4, that deficiency did not
affect the agency’s exercise of jurisdiction over his removal hearing, and we deny
his petition for review as to this claim. See id. at *7. “To the extent [Cruz-Valdez]
1
We also reject the government’s argument that we do not have jurisdiction to review
this claim because Cruz-Valdez failed to exhaust it before the agency. As we explained in Perez-
Sanchez v. U.S. Attorney General, __ F.3d __, 2019 WL 3940873 (11th Cir. Aug. 21, 2019),
Cruz-Valdez essentially argues “the agency never had jurisdiction over his removal proceedings
to begin with,” which would render his final order of removal invalid. Id. at *3. This issue
implicates this Court’s own jurisdiction, see 8 U.S.C. § 1252(a)(1), (b)(9), and “[w]e always
have jurisdiction to determine our own jurisdiction,” Perez-Sanchez, 2019 WL 3940873, at *3
(quotation marks omitted).
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argues he is nonetheless entitled to a remand because his NTA violated the
agency’s claim-processing rules, we dismiss this part of his petition for lack of
jurisdiction because he failed to exhaust the claim before the agency.” Id.
IV.
Cruz-Valdez next argues the BIA erred in rejecting his due process
arguments. He argues the IJ violated his due process rights by conducting a merits
hearing right after his attorney withdrew rather than continuing proceedings to give
him time to procure the assistance of new counsel. This argument fails.
“To establish due process violations in removal proceedings, aliens must
show that they were deprived of liberty without due process of law, and that the
asserted errors caused them substantial prejudice.” Lonyem v. U.S. Att’y Gen.,
352 F.3d 1338, 1341–42 (11th Cir. 2003) (per curiam). It is well-established that
noncitizens may waive their statutory right to counsel. See Cobourne v. INS, 779
F.2d 1564, 1566 (11th Cir. 1986) (per curiam); see also Al Khouri v. Ashcroft, 362
F.3d 461, 464 (8th Cir. 2004) (“[A]liens are free to waive their statutory right to
counsel . . . .”). As long as that waiver was knowing and voluntary, no due process
violation shall inhere. See Cobourne, 779 F.2d at 1566.
In this case, the IJ gave Cruz-Valdez the options of continuing his case to
pursue withholding of removal, which would have given him time to procure
counsel, or proceeding pro se on the merits of his cancellation of removal claim.
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Cruz-Valdez knowingly and voluntarily chose the second option. Contrary to
Cruz-Valdez’s argument, he knew in advance of the hearing that counsel would no
longer be representing him because he terminated her representation just before the
hearing. Also, he did not oppose her motion to withdraw. 2 And there is no
indication from the record that the IJ “bullied and confused” Cruz-Valdez into
going forward with the merits hearing. Under these circumstances, we cannot say
the IJ’s decision to proceed with Cruz-Valdez’s merits hearing deprived him of a
fundamentally fair hearing. See Cobourne, 779 F.2d at 1566; see also Al Khouri,
362 F.3d at 464 (concluding waiver of statutory right to counsel did not rise to the
level of a due process violation). We therefore deny his petition for review as to
this claim.
V.
We similarly reject Cruz-Valdez’s argument that the IJ abused its discretion
in failing to grant him a continuance.
A noncitizen seeking a continuance must establish good cause for the
continuance. See 8 C.F.R. § 1003.29. The BIA found Cruz-Valdez did not have
good cause for a continuance, and we discern nothing in the record that would
2
Cruz-Valdez argues the BIA mischaracterized the facts when it said he fired three
attorneys. We agree with him that his first two attorneys were part of the same firm, so he
dismissed the services of two—not three—different lawyers. However, this does not change our
analysis of his due process claim. Regardless of how many attorneys he terminated, the record
reflects Cruz-Valdez knowingly and voluntarily chose to continue pro se with his cancellation of
removal merits hearing rather than request a continuance.
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compel a contrary conclusion. See Chen, 463 F.3d at 1230–31. Not only did
Cruz-Valdez not ask for a continuance, he told the IJ he wanted to proceed with his
merits hearing. Beyond that, as the BIA pointed out in its decision, Cruz-Valdez
procured the services of several attorneys, and he has not alleged any were
ineffective. We therefore conclude the IJ did not abuse its discretion in failing to
grant Cruz-Valdez a continuance, and we deny his petition for review as to this
claim. See, e.g., Belachew v. U.S. Att’y Gen., 385 F. App’x 924, 925 n.2 (11th
Cir. 2010) (per curiam) (unpublished) (“Because Belachew did not request a
continuance, she did not show good cause for the IJ to grant her a continuance.”).
VI.
Cruz-Valdez also argues that the BIA erred in finding the IJ “did not exhibit
bias or otherwise act other than a neutral arbiter.” This argument is meritless. The
record reflects that the IJ asked questions relevant to Cruz-Valdez’s cancellation of
removal application and did not, as Cruz-Valdez asserts, act as prosecutor. The IJ
was empowered to “interrogate, examine, and cross-examine the [noncitizen] . . .
during the proceeding.” Marcano Rosas v. U.S. Att’y Gen., 263 F. App’x 792, 793
(11th Cir. 2008) (per curiam) (unpublished) (citing 8 U.S.C. § 1229a(b)(1)). That
is precisely what the IJ did here. Also meritless is Cruz-Valdez’s argument that the
IJ’s failure to specify each article of evidence supporting the denial suggests the IJ
was biased. The IJ was not required to list and discuss every single piece of
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evidence supporting his decision. See Tan v. U.S. Att’y Gen., 446 F.3d 1369,
1376 (11th Cir. 2006).
PETITION DENIED IN PART AND DISMISSED IN PART.
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