Maredia v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 4, 2007
Charles R. Fulbruge III
Clerk
No. 06-60614
Summary Calendar
IRFAN MAREDIA,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
BIA No. A98 344 674
Before GARWOOD, CLEMENT and PRADO, Circuit Judges.
PER CURIAM:*
Petitioner Maredia, whose brief in this court states that he
“is an about 28 year old Indian Citizen” who “was placed in removal
proceedings as he was entering the United States illegally near
Seattle, WA” and that he “entered the United States illegally from
Canada border near Seattle WA without inspection”, petitions for
review of the Board of Immigration Appeals (BIA) June 1, 2005 per
*
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opinion should not be published and is not precedent except under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.
curiam order affirming without opinion the June 29, 2005 order of
the immigration judge (IJ) ordering that he be removed. We deny
the petition for review.
Petitioner’s affidavit filed below states that he was arrested
by the Department of Homeland Security on or about September 2,
2004 in the State of Washington and at that time was told he would
be placed in removal proceedings and was given a copy of Notice to
Appear (NTA) dated September 2, 2004. The NTA alleges that Maredia
(1) is not a United States citizen or national, (2) is a native and
citizen of India, (3) arrived in the United States on or about
September 2, 2004 at or near Oroville, Washington, and (4) was not
then admitted or paroled after inspection by an Immigration
Officer. It charges that Maredia is removable under section
212(a)(6)(A)(i) of the Immigration and Nationality Act as “an alien
present in the United States without being admitted or paroled.”
The NTA orders that Maredia appear before an immigration judge (to
show cause why he should not be removed from the United States
based on the stated charges) at a specified address in Seattle, at
a date and time “to be set.” The NTA purports to be issued at
Oroville, Washington, by “Richard M. Graham, Jr. Patrol Agent in
Charge.” Maredia was held in immigration custody, and on September
13, 2004 his bond was fixed by the Tacoma, Washington immigration
office at $10,000 and shortly thereafter he was released from
custody, giving as his address the residence of a friend in
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Houston, Texas. The original NTA, having apparently previously
been filed in the Tacoma office, was received and filed in the
Seattle immigration office on September 14, 2005, and on September
15, 2004 Ms. Buttar, a Seattle attorney who had been retained by
Maredia, was notified in writing by the immigration court that the
hearing on Maredia’s NTA would be on December 28, 2004 at 1:30 p.m.
at the Seattle address (the same as that specified in the NTA). On
November 12, 2004 Buttar filed in the proceedings a motion seeking
both to change venue to Houston, Texas, and to withdraw as counsel.
Filed with and in support of the motion was Buttar’s affidavit in
which she noted that Maredia had moved to Texas and “it is my
understanding that” he “will retain an attorney in Texas”, that she
had provided him a copy of his immigration file, and that he could
not afford to travel to Seattle. The affidavit also states that
Maredia “will be applying for Asylum,” that he “admits allegations
one (1) through (4) in the Notice to Appear” and “concedes
removability,” “but declines to designate a country to which he may
be removed, should removal become necessary.” A copy of the motion
and affidavit was served by mail on Maredia at his designated
Houston address. On November 17, 2004, the Seattle IJ issued an
order that Buttar’s motion to withdraw “be conditionally granted”
and that “until new counsel enters an appearance, present counsel
is responsible for acceptance of service documents.” On November
18, 2004, the Seattle IJ granted the motion to change venue and
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transferred the proceedings to Houston, a copy of the order being
served on Maredia.
On November 30, 2004, the case was set for hearing before the
Houston IJ on February 15, 2005. On the latter date Maredia and
his attorney, Mr. Kaufman of the San Antonio firm of Azar-Farr,
appeared, as did government counsel. Kaufman advised that Maredia
would be filing for asylum, that he lived in Austin, not Houston,
and requested a change of venue to San Antonio. The IJ then
inquired of Kaufman whether he was “ready to enter pleadings
today.” Kaufman stated he believed “that issue is address” in the
affidavit filed with the change of venue motion; the IJ then
reviewed that affidavit and observed “he admits allegations one
through four and concedes removability,” and then stated “The court
will designate India. The charge is sustained.” The IJ then
granted the motion to transfer venue to San Antonio.
On February 17, 2005, notice was given that the case would be
heard in San Antonio on April 13, 2005. At that time Maredia and
his attorney Mr. Azar-Farr appeared. The IJ asked if Azar-Farr
objected to the Buttar affidavit in support of the motion to
transfer from Seattle to Texas being “admitted into the record.”
Azar-Farr indicated he had a copy of the affidavit and stated “I
don’t know if I would have any objections to it” and then “you can
submit it into the record, and, but I do like to reserve any
objections I may have to it perhaps later on if the court would
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entertain it at all.” The IJ “entered” the affidavit “as Exhibit
Number 2.” The IJ then concluded the hearing by resetting the case
for June 15, 2005, to allow counsel “some more time to talk to your
client about possible relief and prepare an application”
(presumably for asylum).
On June 15, 2005, Maredia and his attorney Azar-Farr appeared.
The IJ noted that inadmissibility had been established and asked if
Azar-Farr was seeking any form of relief. Azar-Farr said he was
seeking termination without prejudice, and alternatively, voluntary
departure. He tendered an affidavit, dated June 13, 2005, of Mr.
Maredia, and the NTA copy, and the October 6, 1994 sheet listing
sources of free legal services in the Seattle area, which Maredia
was furnished September 2, 2004. The affidavit also states that
when he was given the NTA he was not told when the hearing would
be, and was never told he “had the right to contact any consular
official,” and that he “asked his former lawyer, Ms. Taran Buttar,
to attempt to transfer my case to the San Antonio area” but “never
authorized Ms. Buttar to concede in court any factual allegations
legal charges against me.” Azar-Farr said he was moving to
terminate on three grounds (though “realizing that the factual
allegations were conceded in Seattle apparently”), namely: (1) the
NTA did not state the date and time of the hearing, contrary to 8
U.S.C. § 1229(a)(1)(G)(i), (2) that when served with the NTA
Maredia was not furnished a quarterly updated list of sources for
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free legal services as required by 8 U.S.C. §§ 1229 (a)(1)(E)(ii)
and 1229(b)(2), and (3) “he was not advised of his right to contact
any consul or officials contrary to the Geneva Convention.” Azar-
Farr asserted that “prejudice need not be shown” to get relief on
any of these grounds; and he did not assert any facts suggestive of
or claimed to reflect prejudice. The government objected on the
ground that Maredia had been represented by counsel throughout and,
in essence, that no prejudice was shown. The IJ inquired of Azar-
Farr whether he intended to file any motion based on
ineffectiveness or improper assistance of counsel on the part of
Buttar, and Azar-Farr responded “a decision, I think up to now has
been made not to file the Matter of Lozado motion against former
counsel.” No such motion has ever been filed (nor has any
application for asylum ever been filed). The IJ continued the
matter until June 29, with written arguments to be received by June
24 and then stated that “If the Government wants to submit written
argument, it’s also due on that same day June 24th.”
On Jun 21 Azar-Farr filed a motion (and supporting brief) for
termination without prejudice (or, alternatively for a hearing “to
determine scope of constitutional and regulatory violations”). The
motion alleges only the same three “violations” as urged orally at
the June 15, 2005 hearing. No facts are alleged which are claimed
to constitute or reflect prejudice, but the motion, though
asserting no prejudice, argues that “Having raised his objections,
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respondent is at least entitled to develop the record to
demonstrate the nature and the extent of the prejudice suffered by
him.” The Government did not file any written argument.
The hearing recommenced June 29, 2005, with Maredia and
attorney Azar-Farr and government counsel present. Azar-Farr said
the government’s failure to file a written response “should be
deemed as lack of opposition to the Motion to Terminate.” The IJ
questioned Azar-Farr at length as to what prejudice he was
alleging, or would attempt to show, from the claimed violations
alleged. Azar-Farr responded that prejudice did not have to be
shown. When pressed by the IJ as to what he would show if
prejudice had to be shown, Azar-Farr ultimately stated that “the
prejudice we would be able to show would be the violation of the
statute.” The IJ then denied the motion for further hearing as to
prejudice “because the respondent has not alleged any prejudice,”
and denied the Motion to Terminate. He inquired of Mr. Azar-Farr
if he requested any other relief. He mentioned only voluntary
departure. The IJ noted that if he reserved his right to appeal,
voluntary departure would only be available under section
1229c(b)(1) and that because Maredia had been in the United States
less than a year when the NTA was issued he would be ineligible
under section 1229c(b)(1)(A). Azar-Farr then argued that this
showed prejudice, but the IJ pointed out that if the proceedings
were then terminated a new NTA could easily be filed before a year
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from Maredia’s September 2, 2004 entry into the United States, a
matter which Azar-Farr did not dispute. Maredia reserved his right
to appeal. The IJ then issued his June 29, 2005 order that Maredia
be removed and denying voluntary departure, together with his oral
decision finding that Maredia had failed to demonstrate or even
allege any prejudice whatever from the allged violations of which
he complained.
We note that in this court Maredia principally asserts the
claims he raised before the IJ.** We also observe that nothing in
the record suggests that there is even any potential factual issue
as to Maredia being removable as charged.
On a petition for review of a BIA decision, we review factual
findings for substantial evidence and questions of law de novo.
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). We
accord “deference to the BIA’s interpretation of immigration
**
He also now complains that the copy of the NTA served on him
was not signed. However, the original NTA in the record is signed
and Maredia has never asserted that it was not in fact issued and
signed by Patrol Agent in Charge Graham, over whose typed name and
title an illegible signature appears. No contention in this
respect was made before the IJ. We also note that a patrol Agent
in Charge is authorized to issue a NTA. See 8 C.F.R. § 239.1(6)
(“Patrol agents in charge”) (2005) (68 FR 35275, June 15, 2003).
This contention is wholly without merit. See Ali v. Gonzales, 435
F.3d 344 (5th Cir. 2006). The contention that the government
consented or agreed to the motion to terminate because it did not
file a written argument is also wholly without merit. The
government opposed the motion on June 21 and the IJ in essence
merely stated that if the government wished to also respond in
writing it had to do so by June 24.
Maredia does not challenge the denial of voluntary departure,
which is clearly mandated by § 1229c(b)(1)(A).
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statutes unless the record reveals compelling evidence that the
BIA’s interpretation is incorrect.” Mikhael v. INS, 115 F.3d 299,
302 (5th Cir. 1997). While we normally review only the decision of
the BIA, when, as in this case, the BIA adopts the IJ’s decision
without opinion, we review the IJ’s decision. Tamara-Gomez v.
Gonzales, 447 F.3d 343, 347 (5th Cir. 2006).
The BIA has consistently held that “so long as the enforcement
officials of the Service choose to initiate proceedings against an
alien and to prosecute those proceedings to a conclusion, the
immigration judge and the Board must order deportation if the
evidence supports a finding of deportability on the ground
charged.” In re Yazdani, 17 I. & N. Dec. 626, 630 (BIA 1981); see
In re Singh, 21 I. & N. Dec. 427, 435 (BIA 1996); In re Wong, 13 I.
& N. Dec. 701, 703 (BIA 1971). Maredia’s argument to the contrary
is without merit. As the IJ did not have discretionary authority
to terminate the removal proceedings against Maredia, the denial of
Maredia’s motion to terminate the removal proceedings was not
error. See Lopez-Telles v. INS, 564 F.2d 1302, 1304 (9th Cir.
1977); Panova-Bohannan v. Ashcroft, 74 Fed. App’x 424, 425-26 (5th
Cir. 2003).
Maredia’s due process challenge regarding the technical
procedural defects attendant to his immigration proceedings fails
because he has not made an initial showing of substantial
prejudice. See Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997).
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Finally, Maredia is bound by counsel’s concession of removability,
which was made while Maredia was still represented by that counsel
and which new counsel accepted and did not challenge. Matter of
Velasquez, 19 I. & N. Dec. 377, 382 (BIA 1986).
PETITION FOR REVIEW DENIED.
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