Oliver v. US Atty.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 16, 2011
• Docket: 10-14089
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT MARCH 16, 2011 No. 10-14089 JOHN LEY Non-Argument Calendar CLERK ________________________

Agency No. A097-209-940

JOSEPH CARLO OLIVIER,

llllllllllllllllllllllllllllllllllllllll Petitioner,

versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll Respondent.

________________________

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

(March 16, 2011)

Before TJOFLAT, KRAVITCH and BLACK, Circuit Judges.

PER CURIAM:

Before us is a petition to review the final order of the Board of Immigration Appeals (“BIA”) denying petitioner’s motion to reopen removal proceedings

subsequent to the BIA’s affirmance of an Immigration Judge’s (“IJ”) denial of

petitioner’s application for asylum, withholding of removal, and relief under the

United Nations Convention Against Torture, 8 U.S.C. §§ 1158, 1231(b)(3)(A); 8

C.F.R. § 208.16(c). Petitioner, a native of Haiti and a citizen of Venezuela, moved

the BIA to reopen the proceedings so that he could have the immigration courts

review his application for Temporary Protective Status (“TPS”), which is available

to Haitian nationals. He asks us to reverse the BIA’s order, and direct the BIA to

reopen the removal proceedings on the ground that the BIA, in denying his motion

to reopen, infringed his Fifth Amendment right to due process.1

We review this due process challenge to the BIA’s decision de novo.

Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010). “To establish a

due process violation, the petitioner must show that [he] was deprived of liberty

without due process of law and that the purported errors caused [him] substantial

prejudice.” Id. No deprivation of liberty occurs when an alien fails “to receive

relief that is purely discretionary in nature,” such as the BIA’s granting of a

1 The BIA’s order indicated that the IJ had no jurisdiction over petitioner’s application for TPS, but that the Immigration and Nationality Act § 244A(b)(5)(B), 8 U.S.C. § 1254a(b)(5)(B), granted him the right to have the immigration courts review his TPS eligibility.

2 motion to reopen proceedings. Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253

(11th Cir. 2008). “To show substantial prejudice, an alien must demonstrate that,

in the absence of the alleged violations, the outcome of the proceeding would have

been different.” Lapaix, 605 F.3d at 1143.

Petitioner’s claim fails because the BIA’s denial of his motion to reopen did

not infringe on any constitutionally protected interest. See Scheerer, 513 F.3d at

1253 (holding that an alien could not prevail on a due process claim because he

had no constitutionally protected interest in the BIA’s granting of his motion to

reopen or in the adjustment of his immigration status). The statutory provision

petitioner cites does not grant him the right to have his initial TPS application

reviewed by the immigration courts instead of the Department of Homeland

Security. See Matter of Lopez-Aldana, 25 I. & N. Dec. 49, 50-52 & n.1 (BIA

2009). Moreover, because the BIA did not deprive him of any rights, he failed to

show that the BIA’s decision resulted in substantial prejudice.

PETITION DENIED.