Brown v. Barr

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 17, 2019
• Docket: 18-9580
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FILED United States Court of Appeals FOR THE TENTH CIRCUIT Tenth Circuit _________________________________ September 17, 2019 NAVADO RICARDO BROWN, Elisabeth A. Shumaker Clerk of Court Petitioner,

v. No. 18-9580 (Petition for Review) WILLIAM P. BARR, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, Chief Judge, BALDOCK and HARTZ, Circuit Judges. _________________________________

Navado Ricardo Brown petitions for review of the Board of Immigration

Appeals (BIA) decision affirming an Immigration Judge’s (IJ) decision denying his

application for adjustment of status. 1 Exercising jurisdiction under 8 U.S.C. § 1252,

we deny the petition for review.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 The BIA also dismissed Brown’s appeal of the IJ’s denial of his applications for asylum, withholding of removal, and protection under the Convention Against Background

Brown is a native and citizen of Jamaica who entered the United States in 2013

on a nonimmigrant K–1 fiancé visa, see 8 U.S.C. § 1101(a)(15)(K)(i), which

authorized him to remain in the country until February 25, 2014. Brown overstayed

his visa and in June 2017, he pleaded guilty to felony menacing in Colorado state

court. Before his scheduled sentencing hearing, the Department of Homeland

Security (DHS) took him into custody and initiated removal proceedings, charging

him with removability under 8 U.S.C. § 1227(a)(1)(B) for staying in the country

beyond the period authorized by his visa.

At a hearing in October 2017, Brown admitted the allegations regarding his

nationality and that he had overstayed his visa without permission, but he alleged that

he married his fiancée, a U.S. citizen, before his visa expired and sought to extend it.

The IJ continued the removal proceedings to allow the parties to determine whether

Brown complied with the terms of his visa. She encouraged him to get a pro bono

attorney to help him prove his marriage and resolve other visa-related issues with the

United States Citizenship and Immigration Service (USCIS).

At the next hearing, Brown submitted a marriage certificate indicating that he

and his U.S. citizen wife had gotten married before his visa expired. Counsel for

DHS indicated that it had no record of the marriage and that Brown had not sought

either an extension of his visa or adjustment of his status. The IJ continued the

Torture (CAT), but he does not challenge those rulings on appeal. Accordingly, we do not address them. 2 removal proceedings to allow DHS to determine whether Brown had filed the

marriage certificate with USCIS and to allow Brown to obtain the information he

needed to establish that he complied with the other terms of his visa. Brown said he

was having difficulty communicating with his wife and USCIS, and complained that

his deportation officer had not provided “information about [his] case.” Admin. R. at

131. But the IJ told Brown that gathering the information was not his deportation

officer’s responsibility and she reminded him that it was his burden to establish that

he had complied with the terms of his visa, not DHS’s burden to establish that he

didn’t. The IJ again encouraged Brown to seek pro bono legal assistance.

Brown reported at the next hearing that he had not determined what, if any,

documents had been submitted to DHS after he was married, but said his wife told

him DHS had denied a waiver she had applied for on his behalf. Counsel for DHS

had no record of a waiver application but suggested that Brown could seek an

adjustment of status. Id. at 137. The IJ reiterated that it was Brown’s responsibility

to prove that he complied with the visa and to take the steps necessary to seek an

adjustment of status, and when she asked him what efforts he had made to do so, he

indicated that he was trying to “come up with the paperwork and stuff” but was

having difficulty because his wife, who lived in another state, had recently had

surgery and because “you guys . . . never told me directly what type of paperwork . . .

to present.” Id. at 139. The IJ explained that she was not Brown’s attorney and

noted that despite her repeated suggestions that he seek pro bono legal assistance, he

had failed to do so. She expressed concern that Brown did not “seem to be making a

3 lot of effort . . . to find these documents,” continued the hearing a third time to give

him “one more opportunity to do so,” and provided him with an application for

adjustment of status. Id. at 141.

At the next hearing in November 2017, Brown appeared without

documentation proving he complied with the terms of his visa. He submitted his

application for adjustment of status, however, and the IJ continued the hearing to

allow him to gather the materials he needed to complete his application. She

explained that Brown was required to have a medical examination and that he was

“responsible for coordinating the medical exam” and working with officials at his

detention facility to schedule transportation. Id. at 156. She advised him to review

the instructions on the application to ensure that he complied with the requirements

for an adjustment of status, emphasizing that she could not consider his application if

he did not have a medical examination or it was otherwise incomplete. When Brown

expressed frustration that his detention officer was not helping him with the process,

the IJ reiterated that it was not the officer’s responsibility to do so and recommended

several times, as she had at each of the previous hearings, that Brown seek help from

pro bono legal services. The IJ then continued the removal proceedings a fourth time

and stressed the importance of Brown bringing a completed application, including

proof of a medical examination, to the next hearing.

Brown appeared at the next hearing without having had the required medical

examination and blamed his detention officer for his failure to complete his

adjustment application. The IJ repeated her earlier admonitions that it was Brown’s

4 responsibility, not DHS’s, to find a medical professional and schedule the exam. She

then continued the proceedings again and told Brown:

I’ll give you another opportunity to get that done but I can’t keep continuing your case if you’re not going to take any action for yourself in this case. At some point, I will deem [the adjustment application] abandoned and you’ll be removed. . . . [Y]ou’re going to have to take some steps for yourself to get the medical exam done. . . .

Id. at 162. The IJ acknowledged that the process was complicated and that Brown’s

detention made it even more difficult, and she again recommended that he seek pro

bono legal assistance. But she noted that Brown had chosen to continue to represent

himself and told him that having made that choice, it was his “responsibility to get it

done.” Id. at 166.

At the next hearing in January 2018, Brown reported that he had not completed

the medical examination and, because his adjustment application was incomplete, the

IJ reset the matter for a final hearing on his asylum application. She told Brown she

would consider his adjustment application at that hearing if he could prove he had

had a medical examination. But she reiterated that she could not adjudicate the

application if it was incomplete and told him that if he did not have a medical

examination before the next hearing, she would deem the application abandoned.

At the next hearing in February 2018, Brown reported that he had not had a

medical examination. When the IJ asked what steps he had taken to schedule an

appointment, he said he had tried unsuccessfully to contact his wife and had asked

his deportation officer to transfer him to a facility where he could use the phone more

5 frequently. The IJ indicated that she was willing to continue the proceedings “one

more time” to allow Brown to have the exam and complete his adjustment

application, id. at 177, and she gave him a document printed from the USCIS website

explaining the medical examination process and a list of thirty nearby doctors

authorized to perform them. After Brown testified in support of his asylum

application, the IJ continued the proceedings for a decision on the asylum application

and for consideration of his adjustment application.

The final hearing was in May 2018—seven months after the initial hearing and

six months after the IJ first explained the medical examination requirement. Brown

indicated that he had still not had a medical examination because the doctors had not

returned his and his family members’ calls.

The IJ issued a written decision denying all relief. With respect to Brown’s

adjustment application, she found him ineligible for adjustment of status because he

failed to complete his medical evaluation and submit Form I-693, Report of Medical

Examination and Vaccination Record. Id. at 97. Brown appealed to the BIA,

challenging the IJ’s determination that he made insufficient efforts to get a medical

examination and complete the required paperwork, and claiming, without

explanation, that the denial of his application violated his right to due process.

The BIA affirmed the IJ’s ruling and dismissed his appeal, agreeing with the

IJ’s determination that Brown’s failure to obtain a medical examination rendered him

ineligible for an adjustment in status. The BIA acknowledged Brown’s argument that

he was unable to have a medical exam because of his detention and other logistical

6 challenges. But the BIA noted that despite the IJ having given Brown the

information he needed to complete the medical examination requirement and having

continued the proceedings multiple times to allow him to either schedule an

appointment himself or get pro bono legal assistance to help him schedule one, he

failed to articulate “any efforts or arrangements he may have made toward

compliance with the medical examination requirement.” Id. at 3. The BIA also

concluded that the record did not support Brown’s “general and lacking in specificity

allegation that his due process rights have been violated.” Id. at 5.

Discussion

Brown claims the BIA violated his right to due process by finding him

ineligible for an adjustment of status based on his failure to comply with the medical

examination requirement.

1. Jurisdiction

As a threshold matter, we note that although we do not have jurisdiction to

review the agency’s ultimate determination whether to grant an adjustment of status

to an alien who is statutorily eligible for it, see 8 U.S.C. § 1252(a)(2)(B)(i), we do

have jurisdiction to consider “constitutional claims or questions of law,”

§ 1252(a)(2)(D), and final orders of removal, § 1252(a)(1). Accordingly, we have

jurisdiction to consider Brown’s claim that the BIA violated his right to due process

by finding him ineligible for an adjustment of status and ordering him removed. See

Herrera-Castillo v. Holder, 573 F.3d 1004, 1006, 1010 (10th Cir. 2009) (recognizing

that court lacks jurisdiction under § 1252(a)(2)(B) to review an agency’s

7 discretionary determinations but exercising jurisdiction under § 1252(a)(2)(D) to

review alien’s equal protection challenge to BIA’s determination that he was

ineligible for an adjustment of status).

2. Requirements for Adjustment of Status and Standard of Review

The Attorney General may, in his discretion, adjust an alien’s status to that of

a lawful permanent resident, including based on the alien’s marriage to a U.S. citizen,

if the alien demonstrates that: (1) he is eligible to receive an immigrant visa and is

admissible to the United States for permanent residence; and (2) a visa is

immediately available to him. See 8 U.S.C. § 1255(c), (i)(1)(A)(ii), (i)(2); Padilla-

Caldera v. Holder, 637 F.3d 1140, 1148 (10th Cir. 2011). One of the requirements

for satisfying the eligibility requirement is establishing that the applicant is not

inadmissible on public health grounds, which requires having a medical examination

and submitting a Form I-693 reporting the results of the medical examination to

USCIS. See 42 U.S.C. § 252 (authorizing promulgation of regulations regarding

medical examinations of aliens); 8 C.F.R. § 245.5 (“[A]n applicant for adjustment of

status shall be required to have a medical examination by a designated civil surgeon .

. . .”); 42 C.F.R § 34.1(d) (providing that requirements regarding medical

examinations apply to applicants for adjustment of status); Carpio v. Holder,

592 F.3d 1091, 1093 (10th Cir. 2010) (explaining that aliens seeking to obtain

adjustment of status to that of a lawful permanent resident “must proceed through a

detailed procedure involving” numerous steps and must “file various documents

establishing their eligibility for the visas and submit to a medical examination”); see

8 also 42 C.F.R § 34.3 (establishing scope of medical examinations), § 34.4 (requiring

medical examiners to issue medical notification of their findings), § 34.2(l) (defining

medical notification).

The applicant bears the burden of establishing eligibility for adjustment of

status and demonstrating that he merits a favorable exercise of discretion. 8 U.S.C.

§ 1229a(c)(4)(A); Mena-Flores v. Holder, 776 F.3d 1152, 1161–62 (10th Cir. 2015);

Matter of Rainford, 20 I. & N. Dec. 598, 599 (BIA 1992). To meet that burden, the

applicant “must comply with the applicable requirements to submit information or

documentation” supporting his application. 8 U.S.C. § 1229a(c)(4)(B). The IJ

determines whether the applicant’s testimony is credible and persuasive and whether

he has satisfied his burden of proof. Id. The IJ may require the applicant to provide

corroborating evidence unless he demonstrates that he “does not have the evidence

and cannot reasonably obtain the evidence.” Id.

Here, a single member of the BIA affirmed the IJ’s decision in a brief order.

See 8 C.F.R. § 1003.1(e)(5). Under these circumstances, we review the BIA’s

opinion rather than the decision of the IJ, but we may also consult the IJ’s “more

complete explanation” of the grounds for the Board’s decision. Neri-Garcia v.

Holder, 696 F.3d 1003, 1008–09 (10th Cir. 2012) (internal quotation marks omitted).

We review the BIA’s legal conclusions, including on constitutional questions,

de novo and its factual findings for substantial evidence. Mena-Flores, 776 F.3d at

1162. Under the substantial evidence standard, “our duty is to guarantee that factual

determinations are supported by reasonable, substantial and probative evidence

9 considering the record as a whole.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204

(10th Cir. 2006) (alterations and internal quotation marks omitted). The agency’s

findings of fact “are conclusive” unless the record, considered as a whole,

“demonstrates that any reasonable adjudicator would be compelled to conclude to the

contrary.” Rivera-Barrientos v. Holder, 666 F.3d 641, 645 (10th Cir. 2012) (internal

quotation marks omitted); see also Sidabutar v. Gonzales, 503 F.3d 1116, 1125

(10th Cir. 2007) (explaining that “[i]t is not our prerogative to reweigh the evidence,

but only to decide if substantial evidence supports the agency’s decision” (internal

quotation marks omitted)). Our review is limited to the agency record. 8 U.S.C.

§ 1252(b)(4)(A).

3. Analysis of Brown’s Due Process Claims

Brown claims the denial of his adjustment application violated his right to due

process because (1) he was “denied his right to an unbiased fact finder,” Opening Br.

at 3; and (2) the IJ “did not consider that the [sic] he was detained and a Pro Se

litigant who has little resources while detained,” id. at 5. We disagree.

“Because aliens do not have constitutional right to enter or remain in the

United States, the only protections afforded are the minimal procedural due process

rights for an opportunity to be heard at a meaningful time and in a meaningful

manner.” Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009) (internal

quotation marks omitted). To prevail on his due process claim, Brown must establish

“both that he was deprived of due process and that that deprivation prejudiced him.”

10 Lucio-Rayos v. Sessions, 875 F.3d 573, 576 (10th Cir. 2017), cert. denied, 139 S. Ct.

865 (2019).

The right to a removal hearing that comports with due process includes the

right to “a fair and impartial decision-maker.” Id. An IJ must recuse herself if she

(1) has a personal bias “stemming from an extrajudicial source which resulted in an

opinion on the merits on some basis other than what [she] learned from her

participation in the case”; (2) her judicial conduct demonstrates “such pervasive bias

and prejudice” that it amounts to “bias against [the] party”; or (3) she has “an

inherent bias.” Id. (brackets and internal quotation marks omitted).

Brown cites no facts or law supporting his conclusory claim that the IJ was

biased, and our independent review of the record reveals no evidence that the IJ

denied Brown’s application based on extrajudicial influences or that she was biased

against him. Nor does the record support Brown’s claim that the IJ violated his right

to due process by failing to consider the difficulties his detention, pro se status, and

limited resources presented in completing the required medical examination.

The IJ complied with regulatory requirements by advising Brown of his right

to obtain counsel and providing him with a list of pro bono legal services available to

him. See 8 C.F.R. § 1240.10(a). She repeatedly recognized the challenges Brown’s

detention presented, cautioned him that choosing to proceed pro se would make

navigating the process even more difficult, and encouraged him at each of the eight

hearings to obtain pro bono legal assistance. She gave him the information he needed

to schedule and complete his medical examination himself if he chose to proceed pro

11 se, and she continued the hearing four times after he submitted his adjustment

application to allow him to complete it. When he blamed his inability to obtain a

medical examination on the IJ, his detention officer, and his difficulties

communicating with his wife, the IJ appropriately reminded him that it was his

burden to establish eligibility for adjustment of status and complete the medical

examination. And when she asked him multiple times to explain what steps he had

taken to do so, he provided no specific examples, giving only vague assurances that

he was “trying [his] best,” Admin. R. at 139, 173, see id. at 141, 176, and saying the

unnamed doctors his family members contacted had not responded.

On this record, we conclude that Brown’s own failure to obtain a medical

examination does not call into question the fundamental fairness of his removal

proceedings, and we agree with the BIA’s determination that the IJ did not violate his

due process rights by finding him ineligible for adjustment of status. In so

concluding, we do not consider the new documentation Brown submitted in support

of his petition for review. Brown did not present this evidence to the IJ, and we must

decide his petition “only on the administrative record on which the order of removal

is based.” 8 U.S.C. § 1252(b)(4)(A).

12 Conclusion

The petition for review is denied. Brown’s motion to proceed on appeal

without prepayment of costs and fees is granted.

Entered for the Court

Timothy M. Tymkovich Chief Judge