Nnadozie v. Rosen

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 8, 2021
• Docket: 19-9582
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 8, 2021 _________________________________ Christopher M. Wolpert Clerk of Court OSITA OJIAKO NNADOZIE,

Petitioner,

v. No. 19-9582 (Petition for Review) JEFFREY ROSEN, Acting United States Attorney General, *

Respondent. _________________________________

ORDER AND JUDGMENT ** _________________________________

Before LUCERO, HOLMES, and EID, Circuit Judges. _________________________________

Petitioner Nnadozie Osita Ojiako 1 seeks review of the Board of Immigration

Appeals’ (BIA’s) summary affirmance of the Immigration Judge’s (IJ’s) decision

* On December 24, 2020, Jeffrey Rosen became Acting Attorney General of the United States. Consequently, his name has been substituted for William P. Barr as Respondent, per Fed. R. App. P. 43(c)(2). ** 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Petitioner gave his name as Nnadozie Osita Ojiako at several hearings during the removal proceedings. See A.R. at 54 (“My name is Nnadozie Osita Ojiako”); id. at 78 (“My full name is Nnadozie Osita Ojiako”); id. at 101 (“My full name is denying his request for a continuance and entering a final order of removal.

Exercising jurisdiction pursuant to 8 U.S.C. § 1252(a)(5), we dismiss the petition in

part and deny the petition in part.

BACKGROUND

Nnadozie, a Nigerian national, entered the United States in January of 2016 on

a nonimmigrant student visa. After completing his program of study, he overstayed

his visa. Nnadozie was detained at a border patrol checkpoint in January of 2019,

and the Department of Homeland Security (DHS) initiated removal proceedings.

Nnadozie, held at a detention center in Tulsa, Oklahoma, first appeared for a removal

hearing before an immigration judge in Dallas, Texas, on February 14, 2019. This

and all subsequent hearings were conducted remotely.

The IJ conducted five hearings in Nnadozie’s case from February 14 to April

23, 2019, during which span he granted four requests for continuance. At the first

hearing, Nnadozie stated he was married to a United States citizen. When asked

whether he was represented by an attorney, Nnadozie said that he had spoken to an

attorney who he thought was going to appear at the hearing. The IJ indicated no

attorney had filed an entry of appearance and granted Nnadozie a continuance for a

month to give him the opportunity to retain counsel. Attorney Patrick Chukwu, who

represented Nnadozie at a bond hearing before the same IJ, was present at the second

Nnadozie Osita Ojiako. My last name is actually Ojiako.”). Despite this, he was referred to as “Mr. Nnadozie” in the transcripts and captions of the agency proceedings. Solely for the sake of clarity, we will continue to refer to Petitioner as “Nnadozie” in this opinion. 2 hearing. The IJ prohibited him from speaking on Nnadozie’s behalf, however,

because Chuckwu’s entry of appearance form covered only the bond hearing, not the

removal proceedings. Nnadozie therefore proceeded pro se at the second and

subsequent hearings.

At the second hearing, Nnadozie claimed that his U.S.-citizen wife had filed a

form I-130 visa petition for an immediate relative on his behalf and that it was being

processed by the United States Citizenship and Immigration Service (USCIS).

Counsel for DHS could confirm, via an electronic database, that USCIS had denied

an I-485 petition to adjust status that Nnadozie had submitted, but counsel could not

look up the status of the I-130 petition without a receipt number. The IJ noted that it

would be unusual for USCIS to adjudicate an I-485 petition without acting on the

I-130 petition. Without objection from DHS, the IJ granted Nnadozie a second

continuance, for one week, “to present evidence to the Court that the I-130 Petition

has been approved.” A.R. at 97.

At the third hearing, Nnadozie did not produce evidence that the I-130 petition

had been approved, but counsel for the DHS was able to confirm that the petition had

been filed and was pending before the USCIS. The IJ granted a third continuance,

but he instructed Nnadozie that “this is not an indefinite continuance” and that “at the

next hearing, if the I-130 petition has not been adjudicated or you have not presented

any evidence that there’s been any movement on the I-130 petition, I will proceed

with your case.” A.R. at 112.

3 At the fourth hearing a month later, Nnadozie did not present any evidence

regarding the status of the I-130 petition. He stated his wife had talked to USCIS by

phone and had also submitted a request to have the petition expedited, which USCIS

had said it would do. Nnadozie presented no documentation to support his assertion,

however, and his wife was not available to testify. Nnadozie did have a receipt

number which he claimed USCIS gave his wife when she asked for written

documentation of her request to expedite the I-130 petition. However, the receipt

number did not match that of any documents associated with Nnadozie that DHS

counsel could access via the electronic database at the hearing.

The IJ granted Nnadozie a fourth continuance, for one week, so his wife could

come to the next hearing and testify regarding the status of the I-130 petition. The IJ

cautioned Nnadozie: “[L]et me make this clear to you, sir. Your wife must be present

on April 23rd, 2019 at 9:30 at the Dallas Immigration Court. No excuses because

she’s not feeling well, because she has to work, none of those excuses. Your wife

must be present.” A.R. at 128. The IJ cautioned further that “if she’s not present to

provide information to the Court and bring any additional documents that she would

like then I will proceed with your case.” Id.

At the fifth and final hearing, Nnadozie’s wife was not present to provide

information to the court. Nnadozie offered a letter in which his wife stated she could

not travel from Houston to Dallas to attend the hearing due to financial

circumstances, but that USCIS was expediting the I-130 petition. The letter did not

include any support for the latter assertion, and DHS counsel stated at the hearing

4 that the electronic database showed no change in the petition’s status. Nnadozie

stated his wife had received an email from USCIS the day before that confirmed her

request to expedite, but that he did not have access to a printer or a fax machine at

the detention center to make a copy of the email and would have to wait several days

to receive a copy in the mail from his wife. He asked for a short continuance to have

time to produce the email.

The IJ denied the request for a continuance, concluding Nnadozie had failed to

show good cause. The IJ stated Nnadozie could file a motion to reopen or reconsider

if he received proof that his I-130 was being expedited. Finding there was no further

basis to withhold removal or continue the proceedings, the IJ ordered Nnadozie

removed to Nigeria. Nnadozie appealed to the BIA, which affirmed the decision of

the IJ without opinion. Nnadozie then timely filed this petition for review, and we

granted him a stay of removal pending its disposition. 2

2 In all hearings, Nnadozie appeared via videoconferencing from a detention center in Tulsa, Oklahoma while the IJ was located in Dallas, Texas. We recognize that at least a colorable argument could be made challenging venue in this court under these circumstances. See 8 U.S.C. § 1252(b)(2) (“The petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.”). But we previously have held that this venue provision is not jurisdictional. See Yang You Lee v. Lynch, 791 F.3d 1261, 1263–64 (10th Cir. 2015) (“We find the reasoning of our sister circuits persuasive and therefore join in the consensus that § 1252(b)(2) is a non-jurisdictional venue provision.”). And the government has affirmatively declared that “venue is proper” in this court, Resp. Br. at 3, thereby waiving any argument to the contrary. Thus, we proceed on the assumption that venue is proper here.

5 DISCUSSION

Because his order was affirmed by the BIA without opinion, we review the IJ’s

findings and conclusions as the final agency determination. Tulengkey v. Gonzales,

425 F.3d 1277, 1279 (10th Cir. 2005). We review the IJ’s denial of a continuance for

abuse of discretion, granting the petition “[o]nly if the decision was made without a

rational explanation, inexplicably departed from established policies, or rested on an

impermissible basis.” Jimenez-Guzman v. Holder, 642 F.3d 1294, 1297 (10th Cir.

2011) (internal quotation marks and alteration omitted). Subject to exceptions not

applicable here, we lack jurisdiction to consider arguments that were not first

exhausted before the BIA. 8 U.S.C. § 1252(d)(1); Martinez-Perez v. Barr, 947 F.3d

1273, 1282 (10th Cir. 2020). “[A]n alien must present the same specific legal theory

to the BIA before he or she may advance it in court.” Garcia-Carbajal v. Holder,

625 F.3d 1233, 1237 (10th Cir. 2010). “It is not enough . . . to make ‘general

statements in the notice of appeal to the BIA’ or to level ‘broad assertions’ in a filing

before the Board.” Id. (quoting Torres de la Cruz v. Maurer, 483 F.3d 1013, 1018

(10th Cir. 2007)).

Nnadozie raises two arguments in his petition for review. He first asserts the

IJ abused his discretion in denying Nnadozie’s fifth motion for a continuance because

the IJ did not consider all relevant factors and impermissibly rested on

case-completion goals set forth in a 2018 memorandum from the Executive Office for

Immigration Review (EOIR). Second, he argues he was deprived of due process

because he did not have access to adequate resources to aid his defense at the

6 detention center in Tulsa and was not meaningfully heard on his defenses to removal

when his motion for continuance was denied. 3

We reject the first argument. As the party seeking a continuance, Nnadozie

bore the burden of showing good cause. See In re L- A- B- R-, 27 I. & N. Dec. 405,

413 (A.G. 2018). When weighing a request for continuance so that an alien may seek

collateral relief, “[t]he probability that a respondent’s collateral proceeding will

succeed and materially affect the outcome of the respondent’s removal proceedings

should . . . be the most important consideration in the good-cause analysis.” Id. at

415. The Attorney General has also provided guidance regarding the relationship

between an alien’s evidentiary burden and the factors an IJ must weigh when

considering a request for continuance:

To assess the speculativeness of a respondent’s collateral matter, an immigration judge will generally need an evidentiary submission by the respondent, which should include copies of relevant submissions in the collateral proceeding, supporting affidavits, and the like. . . . Absent such evidence, the respondent generally will not carry his burden of showing that a collateral matter is actually likely to bear on the outcome of the removal proceedings.

3 It is somewhat unclear from Nnadozie’s petition whether his constitutional claim relates to his requests for continuance so that he could seek an adjustment of status or to other forms of relief from removal. Compare Pet. at 9 (“When the Immigration Judge refused Nnadozie’s continuance request on April 23, 2019, he immediately proceeded to find Nnadozie ineligible for any form of relief and ordered him removed without a meaningful opportunity for Nnadozie to present an argument against removal.”), with id. at 23 (asserting Nnadozie did not have “a meaningful opportunity for a hearing for the immigration relief for which he was prima facie eligible [because he did not have] a meaningful opportunity to have his immigrant petition approved by the Department.”). 7 Id. at 418. Here, Nnadozie did not make an evidentiary submission sufficient for the

IJ to assess the speculativeness of his collateral matter (his wife’s pursuit of an I-130

visa on his behalf). Nor did Nnadozie provide the evidence the IJ requested

concerning the progress of his collateral matter so as to justify a further continuance.

Nnadozie failed to present the necessary evidence even after the IJ gave clear notice

of the form such evidence could take (live testimony from Nnadozie’s wife).

Nnadozie therefore did not carry his burden of showing that his collateral matter was

actually likely to bear on the outcome of the removal proceedings. “[T]here is no

agency or court precedent for requiring an IJ to grant an indefinite continuance so

that a petitioner may remain in this country while awaiting eligibility for adjustment

of status.” Luevano v. Holder, 660 F.3d 1207, 1215 (10th Cir. 2011). We therefore

conclude the IJ provided a rational explanation for his decision and acted consistently

with agency policy when he concluded Nnadozie had not carried his burden of

showing entitlement to a continuance. Under these circumstances, there is no basis

to conclude the IJ abused his discretion, and we deny the petition in connection with

that issue. 4

As to the second argument, we lack jurisdiction to consider it because it was

not exhausted before the BIA. While Nnadozie’s (counseled) submissions to the BIA

made reference to his conditions of confinement, limited resources, and financial

4 Nnadozie did not argue before the BIA that the IJ was improperly influenced by the case-completion goals in the 2018 EOIR memorandum. That claim is therefore unexhausted and unreviewable. See 8 U.S.C. § 1252(d)(1). 8 circumstance, they did so only in the context of his argument that the IJ abused his

discretion when applying the L- A- B- R- factors to his request for a fifth continuance.

“[O]bjections to procedural errors or defects that the BIA could have remedied must

be exhausted even if the alien later attempts to frame them in terms of constitutional

due process on judicial review.” Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094

(10th Cir. 2008). Because he did not raise the same specific legal theory before the

BIA that he now seeks to raise in his petition for review, the claim is unexhausted.

Garcia-Carbajal, 625 F.3d at 1237.

CONCLUSION

For the foregoing reasons, we dismiss the petition to the extent it raises

unexhausted due process claims. In all other respects, we deny the petition.

Entered for the Court

Jerome A. Holmes Circuit Judge