Anesh Gupta v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 25, 2020
• Docket: 18-15203
• Status: Unpublished

Opinion

Case: 18-15203 Date Filed: 03/25/2020 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-15203 Non-Argument Calendar ________________________

Agency No. A078-865-787

ANESH GUPTA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(March 25, 2020)

Before WILSON, LAGOA, and TJOFLAT, Circuit Judges.

PER CURIAM: Case: 18-15203 Date Filed: 03/25/2020 Page: 2 of 12

Anesh Gupta is a serial litigant 1 who has endeavored for years to avoid

deportation. Proceeding pro se here, he petitions for review of the final order of

the Board of Immigration Appeals (“BIA”) dismissing his appeal from an

Immigration Judge’s (“IJ”) removal order for overstaying his visa under §

237(a)(1)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1227(a)(1)(B). On appeal, as best we can discern, he makes six separate

arguments. He first argues that the IJ lacked jurisdiction to conduct his removal

proceedings because he received a notice to appear (“NTA”) that did not list the

time and place of his removal hearing. Second, he argues that the administrative

record is incomplete for review. Third, he contends that the IJ erred by failing to

inform him of any potential eligibility for relief from removal or adjustment of his

immigration status. Fourth, he challenges the sufficiency of the evidence

supporting the BIA’s determination that he was removable for overstaying his visa.

Fifth, he asserts that the IJ abused its discretion by refusing to continue his removal

proceedings to await adjudication of his Form I-751 Petition to Remove Conditions

of Legal Permanent Residence (“Form I-751”) by the U.S. Citizenship and

Immigration Service (“USCIS”). Finally, he argues that the IJ erred by refusing to

1 See Gupta v. U.S. Att’y Gen., 2018 WL 6075494, *1 n.1 (M.D. Fla. Nov. 21, 2018) (noting that Gupta has filed twenty-one lawsuits in the Orlando Division of the Middle District of Florida since 2005, and is “dangerously close to being considered a vexatious litigant.”) 2 Case: 18-15203 Date Filed: 03/25/2020 Page: 3 of 12

issue a subpoena for page one of his Form I-181 Creation of Record of Lawful

Permanent Resident (“Form I-181”).

I.

First, we turn to Gupta’s argument that the IJ lacked jurisdiction to conduct

his removal proceedings because Gupta’s NTA did not list the time and place of

his removal hearing. Normally, we lack jurisdiction to consider a claim raised in a

petition for review “unless the petitioner has exhausted his administrative remedies

with respect thereto.” Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250

(11th Cir. 2006); 8 U.S.C. § 1252(d)(1). Gupta did not raise this argument before

the BIA, so he has not exhausted his administrative remedies. However, we have,

in the past, entertained jurisdictional arguments on appeal because they implicate

our own jurisdiction, see Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148, 1153

(11th Cir. 2019) (stating that “we would have no jurisdiction to entertain” a

petition for review if “the agency never had jurisdiction over [the] removal

proceedings to begin with”); Patel v. U.S. Att’y Gen., 334 F.3d 1259, 1262 (11th

Cir. 2003) (“[W]e have jurisdiction to determine our own jurisdiction.”), so we will

do so here.

Gupta claims that Pereira v. Sessions, 138 S. Ct. 2105 (2018), supports his

argument that the IJ lacked jurisdiction. The Pereira Court held that a NTA does

not meet the criteria of 8 U.S.C. § 1229(a), and does not trigger the stop-time rule

3 Case: 18-15203 Date Filed: 03/25/2020 Page: 4 of 12

that was at issue in that case, if the NTA fails to include the time and place of the

noncitizen’s removal proceedings. Id. at 2113–14. Because his NTA did not

include the time or place for his hearing as specified in § 1229(a), Gupta claims

that removal proceedings were never validly initiated against him, and the IJ had

no jurisdiction to conduct such proceedings. We recently rejected an identical

argument in Perez-Sanchez v. U.S. Attorney General, where we stated that “the

regulation and the statute” governing “the service or filing of an NTA” set forth

“only claim-processing rules,” not jurisdictional rules. 935 F.3d at 1153. We held

that “neither 8 U.S.C. § 1229(a) nor 8 C.F.R. § 1003.14 speaks to jurisdiction,” and

therefore the “IJ and the BIA properly exercised jurisdiction” over the removal

proceedings. Id. at 1157. The same circumstances are present here. Gupta’s

jurisdictional argument is without merit.

II.

Next, we turn to Gupta’s argument that the record preserved from his

removal proceedings is incomplete in violation of 8 U.S.C. § 1229a(b)(4)(C). We

do not reach questions raised in a petition for review that the BIA has not yet

properly addressed in the first instance because we lack jurisdiction to do so. 8

U.S.C. §1252(d) (“A court may review a final order of removal only if . . . the alien

has exhausted all administrative remedies available to the alien as of right.”) A

petitioner fails to exhaust her administrative remedies with respect to a particular

4 Case: 18-15203 Date Filed: 03/25/2020 Page: 5 of 12

claim when she does not raise that claim before the BIA. Amaya-Artunduaga, 463

F.3d at 1250. To exhaust a claim, a petitioner must have previously argued “the

core issue now on appeal” before the BIA in a manner sufficient to allow the BIA

to adequately review the claim and correct any errors below, including by

providing the BIA with the factual underpinnings of the argument if applicable.

Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015) (internal

quotations omitted).

Here, we lack jurisdiction over Gupta’s claim that the administrative record

is incomplete for review as he did not raise that argument before the BIA and

therefore failed to administratively exhaust it. Accordingly, we dismiss Gupta’s

petition with respect to this claim.

We reach a similar result with respect to Gupta’s argument that the IJ

violated 8 C.F.R. § 1240.11(a)(2), and his due process rights, by failing to inform

him of eligibility for relief from removal or adjustment of his immigration status.

Gupta raised this issue before the BIA, but merely stated in conclusory fashion that

“[t]he IJ did not inform [him] of any relief from removal for which he may have

been eligible.” 2 This single sentence that merely states the regulatory standard

Gupta claims was violated is insufficient to establish that Gupta administratively

2 The BIA rejected this argument by noting that Gupta “has not identified any forms of relief for which he is eligible or otherwise established that he was prejudiced by the [IJ]’s conduct.” 5 Case: 18-15203 Date Filed: 03/25/2020 Page: 6 of 12

exhausted this argument before the BIA because the BIA did not have an

opportunity to meaningfully review it. See Indrawati, 779 F.3d at 1297

(“Unadorned, conclusory statements do not satisfy [the exhaustion] requirement.”)

Accordingly, we also lack jurisdiction to review this claim, and so we must dismiss

it.

III.

Next, we review Gupta’s argument that there was insufficient evidence to

support the agency’s 3 determination that he was removable for overstaying his

visa. Specifically, Gupta claims that he has proven that he was granted an

adjustment of his immigration status to that of a permanent resident, and that the

government has been unable to rebut that proof and establish his removability.

An alien is removable if he is present in the United States in violation of the

INA or any other law of the United States, or whose nonimmigrant visa or other

documentation authorizing admission into the United States has been revoked. 8

U.S.C. § 1227(a)(1)(B). The government bears the burden of presenting clear and

convincing evidence that the alien is removable. 8 U.S.C. § 1229a(c)(3)(A). On

3 We use the term “agency” because our role is to review the BIA’s determination of whether the factual findings of the IJ were clearly erroneous. 8 C.F.R. § 1003.1(d)(3)(i). Both decisions are therefore relevant for our review of the factual basis for Gupta’s removability. For issues other than factual findings, both decisions may also be relevant. See Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (“[W]e review only the Board's decision, except to the extent that it expressly adopts the IJ's opinion . . . . Insofar as the Board adopts the IJ's reasoning, we will review the IJ's decision as well.”) 6 Case: 18-15203 Date Filed: 03/25/2020 Page: 7 of 12

petition for review, we scrutinize the agency’s findings of fact “under the highly

deferential substantial evidence test.” Silva v. U.S. Att’y Gen., 448 F.3d 1229,

1236 (11th Cir. 2006) (internal quotations omitted). Under this standard of review,

we may not “reweigh the evidence from scratch,” and will reverse the agency’s

findings of fact only when any reasonable adjudicator would have been compelled

to conclude to the contrary. Id. (internal quotations omitted).

Here, substantial evidence supports the agency’s determination that Gupta

was removable, as he overstayed his visitor visa and his application for permanent

resident status based on his marriage to Schultz was denied. The IJ heard evidence

that Gupta entered the United States in 2001 on a B1/B2 visitor’s visa, with an

expiration date of June 16, 2002, which Gupta does not dispute. The IJ, and the

BIA on appeal, considered evidence that both Gupta’s Form I-130 (Petition for

Alien Relative) and Form I-485 (Application to Register Permanent Residence or

Adjust Status) had been denied by the USCIS, indicating that Gupta did not qualify

for a status adjustment that would render him non-removable after his visa

expired.4 The agency considered supporting documentary evidence, including: (1)

USCIS’s notice of intent to deny Gupta’s I-130 petition, (2) Gupta’s form I-181 to

4 These denials were affirmed by the United States District Court for the Middle District of Florida when Gupta filed a lawsuit challenging their legality under the Administrative Procedure Act and their constitutionality, among other things. Gupta v. U.S. Att’y Gen., 2015 WL 5687829 (M.D. Fla. Sept. 25, 2015); Gupta v. U.S. Att’y Gen., 2017 WL 4217355 (M.D. Fla. May 24, 2017). 7 Case: 18-15203 Date Filed: 03/25/2020 Page: 8 of 12

establish his status as a lawful permanent resident, stamped “DENIED,” (3)

Gupta’s I-130 petition, stamped “DENIED,” (4) Gupta’s I-485 application for

status adjustment, stamped “DENIED,” and (5) formal letters to Gupta and his

spouse indicating that both the I-130 and I-485 applications were denied due to

evidence that his marriage was not in good faith and was intended to circumvent

immigration laws. Additionally, the IJ heard testimony from Officer McCormick,

the USCIS officer to whom Gupta’s case was assigned; Officer McCormick

testified that she had denied all of the aforementioned petitions because she

believed Gupta had engaged in marriage fraud. The agency ordered Gupta

removed to India after considering all this evidence, presented over eight years of

removal proceedings and seventeen hearings before various IJs. We find that,

based on this record, substantial evidence supports the agency’s conclusion that

Gupta was removable. 5 Thus, we deny Gupta’s petition with respect to this claim.

IV.

Next, we turn to Gupta’s claim that that the IJ violated his rights under 8

U.S.C. § 1229a(b)(4)(B) by preventing Gupta from having a reasonable

5 Gupta asserts that a statement made by the District Court in its order in Gupta v. U.S. Att’y Gen., 2015 WL 5687829, at *9 (M.D. Fla. Sept. 25, 2015), conclusively proves that he has been granted an adjustment to conditional permanent resident status. Despite the District Court’s apparent reference to “Gupta[‘s] conditional resident status” in this particular order, there is a plethora of evidence in the record indicating that all of Gupta’s petitions to adjust his immigration status to a permanent resident were denied, and an offhand statement in one of the more than twenty District Court orders that Gupta has necessitated does not tip the balance of the evidence in his favor. 8 Case: 18-15203 Date Filed: 03/25/2020 Page: 9 of 12

opportunity to present evidence on his own behalf. He claims that the IJ did so by

refusing to grant a continuance of Gupta’s removal proceedings to await

adjudication of his I-751 petition by the USCIS. We note that Gupta’s I-751

petition has already been rejected by the USCIS and the “adjudication” he awaits is

the conclusion of a lawsuit, currently pending on appeal before this Court, asking

the Court to grant a writ of mandamus compelling the USCIS to accept and

adjudicate his Form I-751.

We review the agency’s denial of a motion for continuance for an abuse of

discretion. Merchant v. U.S. Att’y Gen., 461 F.3d 1375, 1377 (11th Cir. 2006). An

IJ may “grant a motion for continuance for good cause shown.” 8 C.F.R.

§ 1003.29. In considering whether good cause has been shown, the IJ is required

to articulate or weigh: (1) the government’s response to the continuance motion;

(2) whether the underlying visa was prima facie approvable; (3) the alien’s

statutory eligibility for adjustment of status; (4) whether the alien’s adjustment of

status application merited a favorable exercise of discretion; and (5) the reason for

the continuance and other procedural factors. Ferreira v. U.S. Att’y Gen., 714 F.3d

1240, 1243 (11th Cir. 2013) (citing Matter of Hashmi, 24 I & N Dec. 785 (BIA

2009) and Matter of Rajah, 25 I & N Dec. 127 (BIA 2009)).

Here, the agency did not abuse its discretion by refusing to continue Gupta’s

removal proceedings because Gupta has not shown good cause. Although Gupta

9 Case: 18-15203 Date Filed: 03/25/2020 Page: 10 of 12

had petitioned to remove his conditions of permanent residence with USCIS via

Form I-751, his eligibility for relief was foreclosed by USCIS’s finding that he

does not possess conditional permanent resident status. On that basis, the USCIS

rejected his I-751 petition. Gupta seeks to challenge the USCIS’s determination by

petitioning the District Court for a writ of mandamus compelling the USCIS to

accept and review his I-751 petition. The agency did not abuse its discretion in

finding that the mere possibility that the exceptional collateral relief of mandamus

would be granted (an unlikely outcome) did not constitute good cause to grant

Gupta a seventeenth continuance of his removal proceedings. See Matter of L-A-

B-R-, 27 I & N Dec. 405, 413 (A.G. 2018) (“An immigration judge considering a

motion for continuance to await the resolution of a collateral matter must focus

principally on two factors: (1) the likelihood that the alien will receive the

collateral relief, and (2) whether the relief will materially affect the outcome of the

removal proceedings.”) Accordingly, we deny Gupta’s petition for review on this

ground.

V.

Finally, we turn to Gupta’s argument that the IJ erred by refusing to issue a

subpoena compelling the USCIS to produce page one of his Form I-181. Gupta

claims that denial of the subpoena request offends his rights under 8 U.S.C.

§ 1229a(c)(2)(B), which states that when an alien has the burden of proving lawful

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presence in the country, he “shall have access to [his] visa or other entry document,

if any, and any other records and documents . . . pertaining to the alien’s admission

or presence in the United States.” 8 U.S.C. § 1229a(c)(2)(B).

At any time during the hearing, an alien may request that the IJ issue a

subpoena commanding a witness to produce documents “upon a satisfactory

showing that the presence of the witness is necessary for the determination of any

material matter.” 8 U.S.C. § 1534(d)(1). A party who requests a subpoena for a

document must state what he expects to gain by production of the document and

show that he has already made diligent efforts to obtain the document without

success. 8 C.F.R. § 1003.35(b)(2). The IJ has “exclusive jurisdiction to issue

subpoenas,” and “[u]pon being satisfied that . . . [the] evidence is essential, the [IJ]

shall issue a subpoena.” 8 C.F.R. § 1003.35(b)(1), (3) (emphasis added).

Gupta’s request for the first page of the I-181 form seemingly stems from his

long-argued contention that a government official broke into his apartment and

stole the first page of this form in order to prevent him from proving that he was

approved as a lawful permanent resident. The IJ did not err by refusing to issue a

subpoena for that page of the form. As noted by the BIA, it is the government, not

Gupta, who has the burden of proving removability, so 8 U.S.C. § 1229a(c)(2)(B)

is not applicable to this case. Furthermore, Gupta has not made a showing that the

so-called “first page” of his I-181 form is essential evidence, as the record already

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contains a photocopy of third page of his I-181 form with a stamp indicating that it

was denied by the USCIS. He merely continues to contend, without evidence, that

the first page of the same form somehow proves that his I-181 application was

actually granted. The IJ and the BIA found this unsatisfactory, and so do we.

Accordingly, we deny Gupta’s petition with respect to this claim.

PETITION DENIED IN PART AND DISMISSED IN PART. 6

6 Gupta’s motion to take notice of unlawful execution of his removal order is DENIED because we are barred from engaging in fact-finding in the course of reviewing final orders of removal. See Najjar v. Ashcroft, 257 F.3d 1262, 1278 (11th Cir. 2001). Furthermore, his allegations are not likely to change the ultimate outcome, as they do not bear on whether the agency’s removability determination was supported by substantial evidence and whether it abused its discretion or erred in denying his motions for a subpoena and/or a continuance. See Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997). In addition, the government’s motion for acceptance of a late-filed opposition to this motion is DENIED as moot. 12