Hector Dario Palaez v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 9, 2010
No. 09-15039 JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A089-623-707
HECTOR DARIO PALAEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 9, 2010)
Before BIRCH, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Petitioner Hector Dario Palaez, through counsel, seeks review of the Board
of Immigration Appeals’ (“BIA”) refusal to reconsider the denial of his
adjustment-of-status application.1 He argues that the BIA erred by refusing to
reconsider its denial of his adjustment-of-status application in the exercise of
discretion, because the immigration judge (“IJ”) denied relief on other grounds and
Palaez did not receive a full hearing on the merits of his application. He also
argues that the BIA abused its discretion by refusing to reconsider its alternative
finding that he was ineligible to adjust his status under the Cuban Adjustment Act
(“CAA”), Pub. L. No. 89-732, 80 Stat. 1161 (1966). We DENY his petition.
I. BACKGROUND
Palaez, a native and citizen of Colombia, was admitted into the United States
at Miami, Florida, in 1999, as a nonimmigrant visitor with authorization to remain
in the United States until 21 October 1999. AR at 247. The Department of
Homeland Security (“DHS”) served him with a Notice to Appear (“NTA”) in
January 2008. Id. at 248. The NTA charged him with removability under INA
§ 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as a nonimmigrant who remained in the
United States for a time longer than permitted. Id. at 249.
Palaez appeared before an immigration judge (“IJ”) with counsel, admitted
the allegations in the NTA, and conceded that he was removable as charged. Id. at
1
Though it appears that the correct spelling of the petitioner’s surname is “Pelaez,” we refer
to him here as “Palaez,” consistent with other court documents.
2
112-13. He indicated his intent to apply for adjustment of status under the CAA,
Pub. L. No. 89-732, 80 Stat. 1161 (1966), based on the status of his current wife.
Id. at 113-14. He submitted a copy of a Form I-485 application for adjustment of
status. Id. at 209-12. He admitted on his application that he had a prior criminal
conviction, but denied having been deported or removed. Id. at 211. He also
denied seeking to procure an immigration benefit by fraud. Id.
The DHS submitted a number of documents to rebut Palaez’s eligibility
claim, including: (1) a state criminal case report, id. at 176-78; (2) a 2005 I-130
petition filed by Palaez’s current wife, which represented that Palaez had never
been in removal proceedings, id. at 179-80; (3) a copy of the Form I-485 that
Palaez actually filed with immigration officials in 2006, which represented that he
had no prior criminal convictions, id. at 182-85; (4) a 1994 deportation order
against Palaez, in which the IJ noted that he failed to appear at a deportation
hearing and found him removable as a nonimmigrant visitor who stayed in the
United States for a time longer than permitted, id. at 186-88; (5) documents
showing that Palaez filed a Form I-485 application for adjustment of status in 1991
and his former wife filed an I-130 petition, and that immigration officials denied
the petition in 1993 based on a finding that the marriage was a sham or fraudulent
marriage that could not convey immigration benefits, id. at 189-203; and (6) a
1985 order to show cause, reflecting that Palaez was an immigrant who remained
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for longer than permitted, id. at 205-06.
Counsel for Palaez indicated that he failed to disclose the information
reflected in the government’s submission, including his use of two prior alien
numbers and his having been under an order of removal. Id. at 137-38. As to
criminal history, counsel represented that Palaez only told her that he was involved
in a traffic accident while he had a suspended license but was not arrested, and that
he never mentioned a worthless check conviction. Id. at 139-40. Counsel
indicated that Palaez alternatively would seek voluntary departure. Id. at 141.
Palaez first came to the United States in 1983; he admitted that he
overstayed his visa and was placed in removal proceedings, and that he left the
country rather than appear at a removal hearing. Id. at 151-54. He returned to the
United States with a student visa and married an American citizen who petitioned
for him to become a permanent resident, though immigration officials found that
this marriage was a sham. Id. at 154-55. He got a divorce and returned to
Colombia and never attended a removal hearing about the matter. Id. at 154.
Palaez reentered the United States a third time with a visa and he admitted that he
never disclosed his immigration history on his visa applications. Id. at 156. While
in the United States, Palaez pled guilty to driving under the influence in 1999 and
was arrested for driving without a license in 2003. Id. at 149-151.
When confronted with the instant I-130 petition that did not disclose his
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prior marriage, Palaez claimed that he did, in fact, disclose it. Id. at 157-58. He
admitted that the Form I-130 also indicated that he was not involved in any prior
removal proceedings, although he claimed he told an immigration officer that he
did not remember if he ever was deported, and he admitted that he checked a box
representing that he had no prior arrests. Id. at 158-62.
The IJ issued an oral decision finding that (1) Palaez was not eligible to seek
adjustment of status under the CAA because his current wife adjusted her status
under the Nicaraguan Adjustment and Central American Relief Act (“NACARA”),
Pub. L. 105-100, 8 U.S.C. § 1101 (1997), (2) he was ineligible for adjustment
under NACARA because there was no visa number available to him, and (3) in any
event, he was ineligible for any type of status adjustment under the INA because he
previously entered into a fraudulent marriage. Id. at 103-04. The IJ did not deny
Palaez’s application for adjustment of status as a matter of discretion.
The IJ also denied Palaez’s request for voluntary departure, finding that he
did not demonstrate an ability to post the bond, and, as a matter of discretion, he
did not deserve voluntary departure based on his evasive demeanor and lack of
candor in describing his immigration history and criminal record. Id. at 104-08.
Accordingly, the IJ ordered him removed to Colombia. Id. at 108-09.
Palaez, through substitute counsel, administratively appealed to the BIA,
arguing that the IJ erred by finding that he was ineligible for adjustment under the
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CAA. Id. at 95. He also argued that, because his current wife was a Cuban citizen
and national admitted to the United States after January 1, 1959 and who had
resided in the United States for more than one year, he was eligible for adjustment
of status under the CAA even though she adjusted her status under NACARA. Id.
at 63-66. Palaez did not challenge the IJ’s other findings, including that he was
ineligible for any status adjustment based on his prior fraudulent marriage, or the
IJ’s denial of voluntary departure as a matter of discretion. See id. at 61-67.
The BIA dismissed Palaez’s appeal in July 2009, finding that Palaez was
ineligible for relief under the CAA because his current wife adjusted her status
under NACARA and not the CAA, and that he was ineligible for an adjustment of
status under NACARA because he had engaged in marriage fraud and because
there was no visa number available to him. Id. at 25-26. Alternatively, it denied
adjustment of status as a matter of discretion, based on based on Palaez’s criminal
history and “flagrant disregard” of immigration laws. Id. at 26. The BIA also
affirmed the IJ’s discretionary denial of voluntary departure, noting that Palaez did
not challenge this finding in his appeal. Id.
Palaez did not petition us for review of the BIA’s July 2009 order of
dismissal.2 Instead, in August 2009, Palaez filed a motion for reconsideration with
2
Accordingly, we lack jurisdiction to consider any arguments pertaining to the BIA’s July
2009 denial of Palaez’s application for an adjustment of status. See Jaggernauth v. U.S. Att’y Gen.,
432 F.3d 1346, 1350-51 (11th Cir. 2005) (per curiam) (noting that the filing of a motion to
6
the BIA, arguing that it failed to address his arguments regarding his eligibility for
adjustment under the CAA and that it improperly denied his application as a matter
of discretion because the IJ did not reach that issue. Id. at 14-16.
The BIA denied Palaez’s motion for reconsideration on 23 September 2009,
rejecting his claim that he was eligible for adjustment of status under the CAA and
reiterating its prior order. Id. at 6. It also rejected his challenge to its alternative
denial of his application as a matter of discretion. Id.
Palaez filed a petition for review with us on 6 October 2009. On appeal, he
argues that, because the IJ denied relief on other grounds and he did not receive a
full hearing on the merits of his application, the BIA erred as a matter of law and
may have violated his right to due process by refusing to reconsider his application
in the exercise of discretion. He also argues that the BIA erred in refusing to
reconsider its denial of his application for status adjustment under the CAA.
II. DISCUSSION
We review the BIA’s denial of a motion for reconsideration for abuse of
discretion. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (per
curiam). We review constitutional challenges de novo. Id. We also review our
subject matter jurisdiction de novo. Id.An alien may file a motion to reconsider before the immigration officer or
reconsider does not affect the finality of the underlying order).
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court or the BIA within 30 days of the entry of the removal order, for review of
claimed errors in the law or facts. See 8 U.S.C. § 1229a(c)(6); 8 C.F.R.
§§ 103.5(a)(3), 1003.2(b), and 1003.23(b)(2). “A motion to reconsider shall state
the reasons for the motion by specifying the errors of fact or law in the prior Board
decision and shall be supported by pertinent authority.” 8 C.F.R. 1003.2(b)(1).
The Immigration and Naturalization Act (“INA”) allows the Attorney
General, “in his discretion and under such regulations as he may prescribe,” to
adjust an alien’s status to lawful permanent resident if “(1) the alien makes an
application for such adjustment, (2) the alien is eligible to receive an immigrant
visa and is admissible to the United States for permanent residence, and (3) an
immigrant visa is immediately available to him at the time his application is filed.”
INA § 245(a), 8 U.S.C. § 1255(a).
Though the INA “precludes appellate review of discretionary decisions
[including the discretionary denial of an application for adjustment of status, it]
does not preclude review of non-discretionary legal decisions that pertain to
statutory eligibility for discretionary relief.” Gonzalez-Oropeza v. U.S. Att’y Gen.,
321 F.3d 1331, 1332 (11th Cir. 2007) (per curiam) (citing INA § 242(a)(2)(B), 8
U.S.C. § 1252(a)(2)(B)). In addition, “we retain jurisdiction to review
‘constitutional claims or questions of law raised upon a petition for review.’”
Ferguson v. U.S. Att’y Gen., 563 F.3d 1254, 1259 (11th Cir. 2009) (quoting INA
8
§ 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D)), cert. denied, ___ U.S. ___, ___ S. Ct.
___, 2010 W.L. 757697 (Mar. 8, 2010) (No. 09-263).
“[T]he Fifth Amendment entitles aliens to due process of law in deportation
proceedings.” Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 1449, 123
L.Ed.2d 1 (1993). Accordingly, aliens must receive “notice and an opportunity to
be heard in their removal proceedings.” Fernandez-Bernal v. Att’y Gen. of the
U.S., 257 F.3d 1304, 1310 n.8 (11th Cir. 2001). To prevail on a due process
challenge, an alien must show substantial prejudice – that is, that the outcome
would have differed “in the absence of the alleged procedural deficiencies.” Patel
v. U.S. Att’y Gen., 334 F.3d 1259, 1263 (11th Cir. 2003).
Palaez argues that the BIA erred by refusing to reconsider its denial of his
adjustment-of-status application as a matter of discretion, because the IJ did not
deny relief on this basis and because he was accordingly unable to argue the merits
of his claim and to present “offsetting factors” during his hearing before the IJ.
Appellant’s Brief at 13-14. Even so, he admits that his statutory eligibility for a
status adjustment was before the IJ and that proving his eligibility in this regard
“necessarily would include [the exposition of] positive factors.” Id. at 14. Palaez
does not expressly mention “due process” in his issue statement, summary of
argument, or substantive discussion of this claim. See id. at 1, 7-14.
Even assuming that Palaez implicitly raises a due process challenge by
9
contesting the BIA’s ruling in light of alleged procedural deficiencies during his
hearing before the IJ, this claim lacks merit. Cf. Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1228 n.2. (11th Cir. 2005) (per curiam). Palaez received “notice and an
opportunity to be heard” on the merits of his adjustment of status application when
he presented written evidence related to this issue and testified before the IJ in this
regard at his removal hearing. See AR at 209-34, 144-62; Fernandez-Bernal, 257
F.3d at 1310 n.8. While Palaez argues that he would have presented additional
evidence of “positive” and “offsetting” factors if he had realized that discretionary
relief was a possibility, he has failed to demonstrate resulting prejudice because he
has provided no details about the contents of such documents or testimony and no
explanation of how this new evidence would have affected the outcome. See Patel,
334 F.3d at 1263. Thus, even though the IJ did not deny Palaez’s application as a
matter of discretion, the BIA’s decision to do so did not violate his right to due
process. Cf. 8 C.F.R. § 1003.1(d)(3)(ii) (“The Board may review questions of law,
discretion, and judgment . . . in appeals from decisions of immigration judges de
novo.”). Accordingly, it did not abuse its discretion by denying reconsideration on
this basis, and we deny Palaez’s petition in this respect.
Palaez also argues that he was eligible for adjustment of status under the
CAA despite his Cuban wife’s adjustment under NACARA, and that the BIA erred
by failing to address this claim when it denied his motion for reconsideration.
10
Appellant’s Brief at 8-12. Because Palaez failed to identify a valid legal or
constitutional challenge to the BIA’s refusal to reconsider its denial of his
adjustment-of-status application as a matter of discretion, we need not consider his
challenge to the BIA’s refusal to reconsider its alternative finding. See Gonzalez-
Oropeza, 321 F.3d at 1332.
III. CONCLUSION
Palaez appeals the BIA’s refusal to reconsider its denial of his application to
adjust his status. We hold that the BIA did not abuse its discretion in refusing to
reconsider and that this denial did not deprive Palaez of due process. Based on a
review of the record and the parties’ briefs, we deny Palaez’s petition.
PETITION DENIED.
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