Alicia Brumant v. Eric Holder, Jr.

Case: 13-60916 Document: 00512951434 Page: 1 Date Filed: 02/27/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 13-60916
Fifth Circuit
FILED
Summary Calendar February 27, 2015
Lyle W. Cayce
ALICIA BRUMANT, Clerk
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
BIA No. A045 171 891
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Petitioner, Alicia Brumant, a native and citizen of Dominica, seeks
review of the Board of Immigration Appeals (BIA) order dismissing her appeal
of an order of removal due to her prior conviction of a controlled substance
offense. Brumant also petitions for review of the BIA’s order denying her
motion to reconsider. Our jurisdiction is limited to colorable constitutional
issues and questions of law. See 8 U.S.C. § 1252(a)(2)(C),(D) (providing that
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 13-60916
courts lack jurisdiction over final orders of removal against criminal aliens,
except courts retain jurisdiction over constitutional claims or questions of law).
Brumant argues, in her initial and supplemental briefs, that the IJ and
the BIA denied her due process by not considering and by not informing her of
the apparent forms of relief available to her. Brumant did not raise this due
process argument before the BIA in her appeal or in her motion to reconsider.
This issue raises a procedural error that could have been corrected by the BIA.
See Goonsuwan v. Ashcroft, 252 F.3d 383, 390 (5th Cir. 2001). Thus, Brumant
has not exhausted her administrative remedies, and we do not have
jurisdiction to consider this issue. See § 1252(d)(1); Wang v. Ashcroft, 260 F.3d
448, 452-53 (5th Cir. 2001).
In her supplemental brief addressing her motion to reconsider, Brumant
argues that her due process rights were violated because she was denied a
continuance to properly develop the record and proffer evidence that she has a
case of prima facie eligibility for U.S. Citizenship by naturalization. She also
asserts that she could have argued that she was not an arriving alien under
Vartelas v. Holder, 132 S. Ct. 1479 (2012). In her motion to reconsider,
Brumant did raise the issue of her potential eligibility for citizenship as a form
of relief, and she asked the BIA to reconsider its decision and to remand the
case to the IJ to allow her to properly request her relief options and to develop
the record. Thus, this issue was exhausted by raising it in her motion to
reconsider before the BIA. However, Brumant did not raise the arriving alien
argument to the BIA, it is not exhausted, and we cannot consider it. See
§ 1252(d)(1); Wang, 260 F.3d at 452-53.
Whether Brumant was denied due process based on the BIA’s refusal to
continue her case for further consideration of her alleged claim to citizenship
is a claim which we may address. The BIA considered Brumant’s alleged
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No. 13-60916
eligibility for naturalization and noted that it had no jurisdiction over
applications for naturalization and saw no reason to terminate her removal
proceedings on that basis because her conviction remained final for
immigration purposes. The BIA cited Matter of Acosta Hidalgo, 24 I & N Dec.
103 (BIA 2007), which held that neither the BIA nor the IJ had jurisdiction to
determine an alien’s prima facie eligibility for naturalization in order to
terminate removal proceedings. The BIA did not deny Brumant due process
for denying her request to remand her case to the IJ for consideration of relief
that neither the IJ nor the BIA have jurisdiction to consider. See Robertson-
Dewar v. Holder, 646 F.3d 226, 230-31 (5th Cir. 2011); Ogunfuye v. Holder, 610
F.3d 303, 307-08 (5th Cir. 2010).
Brumant argues that she was entitled to counsel in her immigration
proceedings under the Sixth Amendment, if necessary one appointed by the
Government, according to Padilla v. Kentucky, 559 U.S. 356 (2010). She also
contends that allowing her to proceed without counsel was a violation of due
process under the Fifth Amendment. We address these issues.
Examining these constitutional claims de novo, we note our longstanding
authority that aliens in immigration proceedings have no Sixth Amendment
right to counsel. See Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006);
Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (5th Cir. 2001); Ogbemudia v.
INS, 988 F.2d 595, 598 (5th Cir. 1993). However, the absence of counsel could
have deprived Brumant of due process under the Fifth Amendment “if the
defect impinged upon the fundamental fairness of the hearing . . . and there
was substantial prejudice.” Ogbemudia, 988 F.2d at 598 (internal quotation
marks and citations omitted). The IJ granted Brumant numerous
continuances to obtain counsel, and the proceedings were not fundamentally
unfair. See Ogbemudia, 988 F.2d at 599.
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Because we lack jurisdiction to review the final order of removal, and
because Brumant has not raised any colorable constitutional claims, the
petitions for review are dismissed. See Alwan v. Ashcroft, 388 F.3d 507, 515
(5th Cir. 2004).
DISMISSED.
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