Silvia Escalante-Tellez v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
FEB 27 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SILVIA ESCALANTE-TELLEZ, No. 14-72820
Petitioner, Agency No. A095-786-522
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 17, 2017**
Pasedena, California
Before: TALLMAN and N.R. SMITH, Circuit Judges, and MURPHY,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Stephen Joseph Murphy, III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
Silvia Escalante-Tellez, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal of an
immigration judge’s (“IJ”) decision denying her application for asylum, withholding
of removal, and protection under the Convention Against Torture (“CAT”).
Escalante’s brief only addresses alleged due process violations; she has therefore
waived both any challenge to the denial of her application for asylum based upon her
criminal history and all challenges to withholding and CAT protections based upon
the record before the agency. See Jie Cui v. Holder, 712 F.3d 1332, 1338 n.3 (9th Cir.
2013). We have jurisdiction under 8 U.S.C. § 1252(a). We review constitutional and
other questions of law de novo. Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009).
We deny the petition for review.
1. The IJ’s development of the record satisfied the requirements of the Due
Process Clause because Escalante was given “a full and fair hearing . . . and a
reasonable opportunity to present evidence on [her] behalf.” Zolotukhin v. Gonzales,
417 F.3d 1073, 1075 (9th Cir. 2005). Escalante was permitted to file exhibits prior
to her hearing, but did not. At Escalante’s request, the IJ received and reviewed the
copies of exhibits that Escalante brought to her hearing, permitted Escalante to
elaborate on them, and spoke with her about the contents of the exhibits. And even
though Escalante did not bring her internet research concerning her ex-husband’s
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governmental employment, the BIA accepted his employment as fact in making its
ruling. The IJ’s failure to allow untimely exhibits or pursue additional questions
regarding the unfiled exhibit did not violate the Due Process Clause.
2. The IJ acted as a neutral fact finder in satisfaction of the Due Process Clause.
All of the questions the IJ asked at the hearings that Escalante cited in her briefs were
pertinent to the legal issues before the IJ or logically proceeded from the testimony of
witnesses. In context, the IJ’s questions, comments, and tone are neither clear
accusations of moral bankruptcy, nor do they reveal that the IJ had prejudged the case.
Compare Almaghzar v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006) (recognizing the
IJ’s impatient demeanor as permissible), with Reyes-Melendez v. INS, 342 F.3d 1001,
1007 (9th Cir. 2003) (chronicling the IJ’s many morally charged statements).
Accordingly, the BIA correctly determined that the IJ’s questions did not interfere
with Escalante’s ability to present her case. See Almaghzar, 457 F.3d at 922 (finding
no due process violation where IJ provided petitioner “ample opportunity to present
his case”).
3. The IJ’s failure to advise Escalante on her potential eligibility for a U Visa
was not prejudicial. Nothing has prevented Escalante from applying for a U Visa and
then seeking a continuance or joint motion to terminate the removal proceedings while
her application was pending. See 8 C.F.R. § 214.14(c)(1). Yet Escalante has not done
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so. She thus cannot say that “the IJ’s conduct potentially [affected] the outcome of
the proceedings.” See Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir. 2002)
(alteration in original) (internal quotation marks omitted) (quoting Colmenar v. INS,
210 F.3d 967, 972 (9th Cir. 2000)).
PETITION FOR REVIEW DENIED.
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