Camara v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0129n.06
Filed: February 16, 2006
No. 04-4163
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ABOUBACAR CAMARA,
Petitioner,
v. ON APPEAL FROM THE BOARD OF
IMMIGRATION APPEALS
ALBERTO GONZALES, United States
Attorney General,
Respondent.
/
BEFORE: RYAN, CLAY, and GILMAN, Circuit Judges.
CLAY, Circuit Judge. Petitioner, Aboubacar Camara, appeals an August 26, 2004 order
of the Board of Immigration Appeals (“BIA”) denying Petitioner’s motion for reconsideration.
Petitioner moved for reconsideration after the BIA rejected his claims for asylum and withholding
of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., and
withholding of removal under the Convention Against Torture (“CAT”), 18 U.S.C. § 2340 et seq.
Petitioner argues that this Court should grant his petition for review of the BIA’s August 26, 2004
order because it was improper and denied Petitioner due process of law. For the reasons set forth
below, we DENY the petition for review.
No. 04-4163
I.
BACKGROUND
A. Procedural History
On December 3, 1999 the Immigration and Nationality Service (“INS”) commenced removal
proceedings against Petitioner by issuing a notice to appear. Thereafter, Petitioner conceded
removability and requested asylum and withholding of removal under the INA and withholding of
removal under CAT. On April 2, 2003, after an evidentiary hearing, an Immigration Judge (“IJ”)
rendered an oral decision denying Petitioner’s requested relief. Petitioner appealed the IJ’s decision
to the BIA. On June 30, 2004, a single BIA member issued a summary affirmation of the IJ’s
decision without opinion, pursuant to 8 C.F.R. 1003.1(e)(4). Shortly thereafter, Petitioner timely
moved the BIA to reconsider its affirmation of the IJ’s decision. On August 26, 2004, the BIA
denied Petitioner’s motion for reconsideration. Petitioner timely filed a petition for review of the
motion for reconsideration with this Court.
B. Substantive Facts
Petitioner is a native and citizen of Guinea. He entered the United States on December 7,
1997 with legal authorization to remain in the United States until June 6, 1998. Petitioner remained
in the United States beyond the authorized period. Petitioner alleges that he remained in the United
States because he faces a well-founded fear of persecution on the basis of his political opinion if
returned to Guinea.
Petitioner testified at his merits hearing that he was a member of the Guinean People’s
Gathering Party (“RPG”), and additionally, that he is related to Mr. Conde, the head of the RPG.
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According to Petitioner, the RPG opposes Guinea’s government. Petitioner alleges that he was
beaten on several occasions for his membership in the RPG.
The IJ denied Petitioner’s request for asylum and withholding of removal on the ground that
Petitioner’s request was untimely, and that Petitioner had failed to establish that he had a well-
founded fear of persecution. The IJ held that Petitioner had failed to establish a well-founded fear
of future persecution because: (1)Petitioner’s testimony was not credible; (2) even if Petitioner’s
testimony was credible it did not establish a well-founded fear of future persecution because
Petitioner’s treatment did not rise to the level of persecution; and (3) country conditions had changed
since Petitioner was ill-treated by the Guineese government. The BIA affirmed the IJ’s decision,
and thereafter, denied Petitioner’s request to reconsider its affirmation. Petitioner now appeals the
BIA’s denial of his motion to reconsider. He argues that the BIA’s denial of his motion to
reconsider was improper because: (1) his asylum application should have been granted on the merits;
and (2) the BIA’s use of summary procedures violated his due process rights.
II.
DISCUSSION
A. This Court Does Not Have Jurisdiction to Review The BIA’s Order Affirming The IJ’s
Denial of Petitioner’s Application for Asylum and Withholding of Removal
This Court does not have jurisdiction to review the BIA’s June 30, 2004 denial of
Petitioner’s requests for asylum and withholding of removal. In order for this court to have
jurisdiction to review an order of the BIA, a petitioner must file a notice of appeal with this Court
within 30 days of the BIA’s issuance of the decision. 8 U.S.C. § 1252(a)(5), (b)(1); Stone v. INS,
514 U.S. 386, 393-94 (1995); Zhang v. INS, 348 F.3d 289, 292 (1st Cir. 2003) (applying Stone to
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INA after 1996 amendments to the INA); Kellici v. Aschcroft, 101 F. App’x 615, 616 (6th Cir. 2004)
(unpublished) (same). To date, Petitioner has not filed a notice of appeal of the BIA’s June 30, 2004
decision denying Petitioner’s requests for asylum and withholding of removal. Instead, Petitioner
moved the BIA to reconsider the June 30, 2004 decision and then appealed the denial of the motion
to reconsider. An appeal of a motion to reconsider, however, is not a substitute for an appeal of the
original decision and does not give this Court jurisdiction to review the denial of the original
decision. 8 U.S.C. § 1252(a)(5), (b)(1); Stone, 514 U.S. at 393-94; Zhang, 348 F.3d at 292 n.2;
Kellici, 101 F. App’x at 616. Therefore, we do not have jurisdiction to review the merits of
Petitioner’s requests for asylum and withholding of removal.
B. The BIA’s Denial of Petitioner’s Motion for Reconsideration Did Not Deny Petitioner
Due Process of Law1
Petitioner contends that the BIA’s streamlining procedures violate the Due Process Clause.
The BIA’s streamlining procedures allow a single member of the BIA to review an IJ’s decision and
to affirm the decision without opinion. Petitioner challenges three aspects of the procedures: (1) the
ability of a single member of the BIA, as opposed to a three member panel, to issue a decision on
behalf of the BIA; (2) the ability of the BIA to affirm an IJ’s decision without an opinion; and (3)
the standard of review used by the BIA when reviewing appeals under the procedures. For the
reasons discussed below, this Court has jurisdiction to address only the first of Petitioner’s
1
Petitioner’s statement of issues also indicates that Petitioner is making an Equal Protection
challenge. Petitioner, however, has failed to preserve any equal protection argument for this Court’s
review because the argument section of Petitioner’s brief does not once mention the Equal
Protection Clause. United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999) (holding that issues
not fully developed or argued on appeal are waived for appellate review).
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No. 04-4163
challenges to streamlining procedures, the ability of a single member of the BIA to issue a decision
on behalf of the BIA. Because we find that decisions issued by a single BIA member do not violate
due process, we deny the petition for review.
1. Jurisdiction
This Court has jurisdiction to address the constitutionality of the streamlining procedures
only as those procedures apply to Petitioner’s motion for reconsideration, and not as the streamlining
procedures apply to the denial of Petitioner’s appeal of the IJ’s decision because, as discussed in the
previous section, the only appeal properly before this Court is the BIA’s denial of Petitioner’s
motion for reconsideration. Although Petitioner challenges three aspects of the streamlining
procedures, only one of these aspects is relevant to the denial of Petitioner’s motion for
reconsideration, the ability of a single member of the BIA to issue a decision on behalf of the BIA.
Petitioner cannot challenge the Board’s summary affirmation procedures or the standard of review
applied to IJ decisions because the Board’s denial of Petitioner’s motion for reconsideration did not
employ summary affirmation or any standard of review. These challenges are relevant only to the
BIA’s denial of Petitioner’s requests for asylum and withholding of removal, which are not properly
before this Court. Therefore, we address only the issue of whether the issuance of an opinion by a
single BIA member violates Petitioner’s constitutional rights.2
2. Analysis
a. Procedural Due Process
2
In any case, this Court has already rejected the argument that these summary affirmation
procedures violate due process, Denko v. INS, 351 F.3d 717, 730 (6th Cir. 2003).
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The issuance of a decision by a single member of the BIA on behalf of the entire BIA does
not violate Petitioner’s procedural due process rights. See generally Denko, 351 F.3d at 729 (“the
BIA’s streamlining procedures do not themselves alone violate an alien’s right to due process”).
The Due Process Clause of the Fifth Amendment protects aliens physically present in the United
States as well as citizens. Landon v. Plasencia, 459 U.S. 21, 32-33 (1982); Mathews v. Diaz, 426
U.S. 67, 77 (1976). Procedural due process rights attach whenever a petitioner asserts a protected
liberty or property interest. See Bangura v. Hansen, – F.3d – , 2006 WL 11939, at * 5 (6th Cir.
2006); see also Almario v. INS, 872 F.2d 147, 151 (6th Cir. 1989). To establish a protected liberty
or property interest, the petitioner must demonstrate that the Constitution or a federal or state statute
grants him a protected right. See Bangura, 2006 WL 11939 at *5; see also Almario, 872 F.2d at
151. Once a petitioner establishes that he or she has a protected property interest, courts apply the
balancing test from Matthews v. Eldridge, 424 U.S. 319 (1976), to determine if the petitioner
received adequate process. Denko, 351 F.3d at 730 n. 10. Under Matthews, courts consider: (1) the
private interests affected by the official action; (2) the government’s interest, including fiscal and
administrative burdens, in granting additional process; (3) the risk of erroneous deprivation under
current procedures; and (4) the additional value of any new procedures. Id
In this case, Petitioner fails to establish a procedural due process violation because Petitioner
cannot show that requiring a three-member panel to hear his motion for reconsideration would
decrease the risk of improper removal. Denko, 351 F.3d at 730 n. 10. Although Petitioner does
have a protected interest in remaining in the United States, Reno v. Flores, 507 U.S. 292, 306
(1993), Petitioner’s right to appeal his order of removal to a panel of this Court provides sufficient
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protection from improper removal. Denko, 351 F.3d at 730 n. 10. Therefore, we find that
Petitioner’s procedural due process claim is meritless and does not provide this Court with grounds
to grant a petition for review.
b. Substantive Due Process
In addition to arguing that the summary affirmation procedures violate procedural due
process, Petitioner seems to be arguing that the streamlining procedures violate his substantive due
process rights in that the procedures deprive him of the fundamental right to take an interagency
appeal. There is no fundamental right, however, to interagency appeals. As the Petitioner correctly
notes, rights that are “deeply rooted in this Nation’s history and tradition, and implicit in the concept
of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed,” are
fundamental. Hamby v. Neel, 368 F.3d 549, 566 (6th Cir. 2004). The right to interagency appeals
simply is not such a right. See Denko, 351 F.3d 729 (citing cases from other circuits that hold there
is no constitutional right to appeal to the BIA). Therefore, Petitioner fails to establish a substantive
due process claim.
c. Policy Arguments
Petitioner spends most of his brief making policy arguments against the streamlining
procedures and predicting the demise of our federal system of government. For instance, Petitioner
describes the streamlining procedures as “Orwell’s horrific vision of the future being implemented
before our very eyes.” (Final Br. of Pet’r 19.) Petitioner further predicts that the streamlining
procedures will eventually lead to the complete erosion of all judicial review. This Court, however,
does not have the authority to overturn federal regulations based on policy arguments, nor do the
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writings of George Orwell or any other fiction writer provide this Court with any legal authority.
C. Petitioner Has Waived The Argument That The BIA Abused Its Discretion in Denying
His Motion to Reconsider
Petitioner has waived any argument that the BIA abused its discretion in denying his motion
to reconsider. Issues that are not fully developed and argued on appeal or that are argued in a
perfunctory manner are waived for appellate review. United States v. Layne, 192 F.3d 556, 566 (6th
Cir. 1999). Petitioner’s brief presents a ten page policy argument on why this Court should “strike
down” the regulation streamlining BIA review of IJ decisions, another several pages on a substantive
due process, and finally addresses the merits of the BIA’s June 20, 2004 denial of Petitioner’s
requests for asylum and withholding. It presents no legal or factual argument that the BIA abused
its discretion when it denied Petitioner’s motion for reconsideration in the August 26, 2004 order.
Therefore, this Court will not address Petitioner’s claim.
III.
CONCLUSION
For the foregoing reasons, we DENY the petition for review.
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