Salome Garcia v. Loretta E. Lynch

655 F. App'x 511
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 13, 2016
Docket15-1975
StatusUnpublished
Cited by2 cases

This text of 655 F. App'x 511 (Salome Garcia v. Loretta E. Lynch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salome Garcia v. Loretta E. Lynch, 655 F. App'x 511 (8th Cir. 2016).

Opinions

PER CURIAM.

Salome Garcia, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’s (“BIA”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), and ordering his removal. We deny Garcia’s petition.

Garcia entered the United States without inspection on June 4, 1991. He was apprehended by the Immigration and Naturalization Service (“INS”) one week later. At that time, the INS served Garcia with an order charging him with being deporta-ble under the former section 241(a)(1)(B) of the Immigration and Nationality Act. Two months later, Garcia filed a motion to change venue from Harlingen, Texas to Los Angeles, California and also submitted a Form 1-589 request for asylum, accompanied by a copy of his El Salvadoran birth certificate. Garcia’s motion was granted, and he appeared for a hearing in Los Angeles on December 3, 1991. At the hearing, he withdrew his asylum application, received until May 3, 1992 for voluntary departure, and waived appeal. Garcia failed to depart the United States within the voluntary-departure period, and a warrant for his deportation was issued on February 9,1995.

Meanwhile, on March 30, 1992, Garcia filed a second asylum application with the INS. In this application, Garcia falsely claimed to be a native and citizen of Guatemala and presented a falsified Guatemalan birth certificate. This application remained pending with the INS (and its successor agency, the United States Citizen and Immigration Services (“USCIS”)) until August 2005, when Garcia testified to an asylum officer in Kansas City in support of his second asylum application. On March 25, 2008, the USCIS issued a notice of intent to deny his application. The US-CIS found Garcia not credible, citing the discrepancies between his first and second asylum applications, particularly Garcia’s birthplace. The USCIS formally denied Garcia’s second asylum application on September 8, 2008.

The Department of Homeland Security (“DHS”) subsequently initiated the current removal proceedings against Garcia, serving him with a notice to appear (“NTA”) and charging him with being removable under 8 U.S.C. § 1182(a)(6)(A)(I) as an alien present in the United States without having been admitted or paroled. On October 13, 2011, Garcia appeared before an immigration judge (“IJ”) and, through counsel, admitted the factual allegations in the NTA (except for his country of nationality and citizenship) and conceded remov-ability. The IJ designated El Salvador as the country of removal, with Guatemala as the alternative.

Seeking relief from removal, Garcia filed a third application for asylum, withholding of removal, and relief under the CAT. In evaluating this application, the IJ considered several documents, including the NTA; Garcia’s 1992 asylum application; his October 2011 written pleading; his motion to permit the late filing of witness and exhibit lists for that day’s hearing; Garcia’s amended third 1-589 asylum application; and notarized translations of newspaper articles regarding country conditions in El Salvador. The IJ also took administrative notice of the most recent State Department country-conditions reports for El Salvador and Guatemala, while excluding as untimely filed two exhibits that previously had been submitted and already were in the record. The IJ rendered a written decision denying Garcia’s applica[513]*513tion because he had not presented credible testimony. The IJ nonetheless proceeded to the merits for “the sake of completeness,” finding Garcia’s claims defeated by fundamental changes in country conditions in El Salvador and Guatemala. The IJ granted Garcia a 60-day period of voluntary departure in lieu of removal or, failing voluntary departure, removal to El Salvador or, in the alternative, Guatemala. Garcia appealed to the BIA, which issued a written decision dismissing the appeal, declining to reinstate Garcia’s period of voluntary departure, and ordering Garcia removed from the United States pursuant to the IJ’s alternate order.

“We review the BIA’s legal determinations de novo, but we accord substantial deference to the BIA’s interpretation of the statutes and regulations it administers.” Etenyi v. Lynch, 799 F.3d 1003, 1006 (8th Cir. 2015) (quoting Garcia-Gonzalez v. Holder, 737 F.3d 498, 500 (8th Cir. 2013)). We disturb the BIA’s findings of fact only if unsupported by substantial evidence and if “any reasonable adjudicator would be compelled to conclude to the contrary.” Id. (quoting Goswell-Renner v. Holder, 762 F.3d 696, 699 (8th Cir. 2014)).

Garcia contends that the BIA violated his due process rights by dismissing his appeal of the IJ’s order because the dismissal was arbitrary, capricious, and an abuse of discretion. “To establish a due process claim, an alien must prove prejudice that ‘potentially affects the outcome.’ ” Zacarias-Velasquez v. Mukasey, 509 F.3d 429, 434-35 (8th Cir. 2007) (quoting Tun v. Gonzales, 485 F.3d 1014, 1026 (8th Cir. 2007)). ‘We review de novo due process claims in immigration proceedings.” Id. at 435.

Although, as Garcia argues, “[i]t is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings,” Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993), the entitlement to due process does not represent an entitlement to a favorable outcome of that process. Because the briefs supporting Garcia’s petition do not raise any meaningful argument regarding how or why the BIA’s dismissal violated his right to due process other than by its affirmance of the IJ’s unfavorable decision, we consider such a broad due process claim waived. See Awad v. Gonzales, 494 F.3d 723, 727 (8th Cir. 2007) (declining to address a petitioner’s due process claims because they “principally reiterate[d] his disagreement with the IJ’s and BIA’s determinations against him”); Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004) (considering a claim waived when petitioner made “no meaningful argument on this claim in his opening brief’). Nonetheless, to the extent that Garcia challenges the IJ’s exclusion of the two exhibits filed on the day of his merits hearing as untimely, Garcia cannot prove prejudice because, as the BIA noted, not only were the exhibits included elsewhere in the record, but they also were discussed in the IJ’s written decision. Accordingly, Garcia’s due process claim fails.

To the extent that Garcia’s petition instead asserts a challenge to the IJ’s adverse-credibility determination, this claim is not properly before us. We do not have jurisdiction to address claims not raised before the IJ or BIA. Juarez Chilel v. Holder,

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