Alphonsine Ngongo v. John Ashcroft, Attorney General

397 F.3d 821, 2005 U.S. App. LEXIS 2388, 2005 WL 334942

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 14, 2005
• Docket: 03-70903
• Status: Published

Opinions

Opinion by Judge SILER; Dissent by Judge HAWKINS.

SILER, Circuit Judge.

Alphonsine Ngongo, a native and citizen of the Congo, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) ordering her deported as an alien who procured her visa to remain in the United States by marital fraud. 8 U.S.C. § 1251(a)(1)(G)(ii).¹

In 1991, Ngongo entered the United States under a student visa. In 1994, she married United States citizen Walden Chambers, who subsequently filed a Petition for Alien Relative (“1-130”) on her behalf in 1995. He later withdrew the I-130, claiming that the marriage was fraudulent. However, in 1996, Chambers filed a second 1-130 on her behalf. Despite Ngongo’s request, the petitions were never consolidated, so Ngongo had two actions simultaneously proceeding through the Immigration and Naturalization Service (“INS”).

During the deportation hearings before the Immigration Judge (“IJ”) concerning the first petition, Ngongo and Chambers offered testimony to rebut the contention that their marriage was fraudulent. However, the IJ made Ngongo testify first, with Chambers out of the room, and then allowed Chambers to testify because the credibility of both spouses was at issue.

The first petition was denied, and the IJ issued a decision finding that the INS proved that the marriage was fraudulent. Likewise, the INS District Director denied her second petition. Both decisions were separately appealed. On review, the BIA reversed and remanded the District Director’s determination on the second I-130. However, the BIA affirmed, without opinion, the IJ’s decision regarding the first petition. At that time, the BIA did not have the appeal regarding the second petition before it anymore, since it had been remanded to the District Director.

Ngongo argues that the BIA deprived her of the opportunity to pursue an adjustment of status when it affirmed the IJ’s decision on the first petition before the District Director adjudicated the pending second 1-130. In certain instances, a single BIA member, rather than a three-member panel, may affirm IJ decisions without opinion, thereby making the IJ’s decision the final agency determination. See 8 C.F.R. §§ 3.1(a)(7) and (e)(4) (2003).² Single-member affirmance is permitted if the issue is “squarely controlled” by BIA or federal court precedent or “the factual and legal questions raised on appeal are so insubstantial that three-member review is not warranted.” 8 C.F.R. §§ 3.1(a)(7)(ii)(A)-(B) & (e)(4)(i)(A)-(B) (2003). These streamlining procedures do not themselves violate Ngongo’s due process rights. Falcon Carriche v. Ashcroft, 350 F.3d 845, 848 (9th Cir.2003). Because streamlining procedures were used, we review the IJ’s decision directly. Id. at 851. Questions of due process violations in INS proceedings are reviewed de novo. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002).

The BIA did not err by affirming the IJ’s decision on the first petition before the second 1-130 was fully adjudicated. Even if the District Director approved the 1-130 upon remand, Ngongo would not have been automatically entitled to an adjustment of status. See Agyeman v. INS, 296 F.3d 871, 879 (9th Cir.2002). Approval of the “1-130 petition does not automatically entitle the alien to adjustment of status as an immediate relative of a United States citizen.” Id. The IJ would still have to determine whether to confer that status upon her. Id. Moreover, Ngongo never raised to the Board, before or after the remand of the second 1-130 petition,- an argument that deportation proceedings must await adjudication of that petition. The dissent argues that Ngongo’s request to eons.olidate petitions .in her appeal to the BIA translates into a request that the Board-should stay ruling on the appeal in this case until her 1-130 petition was adjudicated. However, Ngongo did not ask for, nor even suggest such a stay. Hence, she did not give the Board the opportunity to address the issue, and because she failed to exhaust her administrative remedies, we have no jurisdiction to adjudicate this claim. Further, as. a matter of . due process, Ngongo has not demonstrated a defect of process that so deprived her of a full and fair hearing as to affect the outcome of the agency’s proceedings. Accordingly, the BIA’s streamlining procedures did not violate Ngongo’s due process rights. See Falcon Carriche, 350 F.3d at 848.

- Furthermore, Ngongo did not have an absolute constitutional right to testify at a time of her own choosing during the deportation hearings. Deportation hearings are civil, not criminal, proceedings, so many of the protections afforded criminal defendants are unavailable to Ngongo. See El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 751 (9th Cir.1991). To prove a due process violation, Ngongo must show that she was prejudiced by the IJ’s ruling that she must testify before her husband did so, and she must show that the prejudice “may have affected the outcome of the proceedings.” Reyes v. Ashcroft, 358 F.3d 592, 596 (9th Cir.2004). Furthermore, the IJ was “empowered to exercise a reasonable degree of latitude in conducting [Ngongo’s] deportation ... proceedings.” Ramirez-Durazo v. INS, 794 F.2d 491, 496 (9th Cir.1986).

Because the IJ needed to compare Ngongo’s testimony with Chambers’s testimony, requiring Ngongo to testify first was not unreasonable. Ngongo’s counsel still argued her case, and she cannot demonstrate that she was prejudiced by presenting the witnesses in a different order than originally planned. Even though she contends that the IJ “dictate[d]” how she could present her case, the IJ acted well within his discretion. This lack of prejudice necessarily implies that Ngongo’s counsel was not so inadequate that the outcome of the proceedings would have been any different.

PETITION DENIED.

1 . Currently 8 U.S.C. § 1227(a)(1)(G)(ii).

2 . Currently 8 C.F.R. §§ 1003.1(a)(7) and (e)(4), respectively.