Celin Veliz Milian v. Attorney General United States

ALD-210 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-1041
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CELIN DARIO VELIZ MILIAN,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A087-595-837)
Immigration Judge: Honorable Shifra Rubin
____________________________________
Submitted on Respondent’s Motion for Summary Action
Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
August 4, 2022
Before: JORDAN, RESTREPO and SCIRICA, Circuit Judges
(Opinion filed: August 17, 2022)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Celin Dario Veliz Milian petitions for review of a final order of removal.
Presently before the Court is a motion filed by the Government for summary disposition
of the petition for review. For the foregoing reasons, we grant the Government’s motion
and deny the petition for review. 1
Milian, a native and citizen of Guatemala, entered the United States without
inspection in June 2007. The Government charged him as removable in 2010 for being
present without having been admitted or paroled. Milian thereafter filed applications for
asylum, withholding of removal, relief under the Convention Against Torture (“CAT”),
claiming that he feared returning to Guatemala; he sought voluntary departure in the
alternative. After a hearing before the Immigration Judge (“IJ”), the IJ denied his
applications for asylum, withholding of removal, CAT relief, and granted his application
for voluntary departure. Regarding his asylum claim, the IJ concluded that Milian was
not eligible for asylum because he failed to file his application within one year of entry.
Regarding his withholding of removal claim, the IJ concluded that Milian failed to meet
his burden to demonstrate past or future persecution and failed to demonstrate
membership in a particular social group. Regarding CAT relief, the IJ concluded that
1
Although we have entertained the Government’s motion, we remind the
Government that such a motion should typically be filed before the petitioner’s opening
brief is due. See 3d Cir. LAR 27.4(b).
2
Milian failed to show that it was more likely than not he would be tortured by or with the
consent or acquiescence of a public official if he returned to Guatemala.
Milian appealed to the Board of Immigration Appeals (“BIA”), challenging
aspects of the IJ’s ruling on his withholding application. The BIA dismissed the appeal
and affirmed the IJ’s decision regarding Milian’s withholding of removal claim and
declined to consider the IJ’s decision regarding asylum and CAT relief, concluding that
Milian failed to raise the issues on appeal and they were therefore waived.
Milian filed a counseled petition for review in this Court. After he filed his
opening brief, the Government filed a motion to summarily deny his petition.
We have jurisdiction to review a final order of removal under 8 U.S.C. §
1252(a)(1). See Cruz v. Att’y Gen., 452 F.3d 240, 246 (3d Cir. 2006). We will take
summary action if “no substantial question is presented” by the petition. 3d Cir. L.A.R.
27.4.
To the extent that Milian challenges the IJ’s denial of his applications for asylum
and CAT relief, he failed to exhaust these issues before the BIA. Therefore, we lack
jurisdiction to review the claims. See 8 U.S.C. § 1252(d)(1); Zheng v. Gonzales, 422
F.3d 98, 107–08 (3d Cir. 2005).
This Court is similarly largely without jurisdiction to review Milian’s arguments
regarding his withholding of removal claim. While Milian challenged certain aspects of
the IJ’s denial of withholding of removal before the BIA, he failed to present any
challenge to the IJ’s decision regarding his proposed social group and the standard of
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review employed by the IJ. Accordingly, we conclude that Milian “did nothing to alert
the BIA that he was challenging” these aspects of the IJ’s decision. See Lin v. Att’y
Gen., 543 F.3d 114, 120–21 (3d Cir. 2008). However, we note that Milian argues before
this Court, as he did before the BIA, that he was unable to relocate safely within
Guatemala. While this argument was properly exhausted, it provides Milian no relief.
Neither the BIA nor the IJ based its decision on Milian’s ability to relocate within
Guatemala; rather, both concluded that Milian had failed to establish harm rising to the
level of persecution or membership in a cognizable particular social group.
Finally, we agree with the Government’s contention that Milian’s due process
claim is without merit. Milian appears to argue that his due process rights were violated
because the IJ and BIA ignored controlling precedent; specifically, he contends that the
BIA followed Matter of A-B-, 27 I & N Dec. 316 (A.G. 2018), despite having been
directed not to. See Matter of A-B-, 28 I & N 307 (A.G. 2021). However, our review of
the BIA’s decision shows that the agency did not rely on the vacated decision and that the
vacated decision does not otherwise impact Milian’s case.
Accordingly, we grant the Government’s motion and will deny the petition for
review.
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