Sisira Kumaragamage Don v. Merrick Garland

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 10, 2021
• Docket: 20-1822
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1822

SISIRA KUMARA KUMARAGAMAGE DON, a/k/a Sisira Kumara, a/k/a Sisira Kumara Kumaragamage,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Submitted: July 28, 2021 Decided: August 10, 2021

Before MOTZ, WYNN, and HARRIS, Circuit Judges.

Petition denied in part and dismissed in part by unpublished per curiam opinion.

Evan J. Law, GAYHEART & WILLIS, P.C., Culpeper, Virginia, for Petitioner. Jeffrey Bossert Clark, Acting Assistant Attorney General, Anthony C. Payne, Assistant Director, Jeffery R. Leist, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Sisira Kumara Kumaragamage Don, a native of Sri Lanka and a citizen of Australia,

petitions for review of an order of the Board of Immigration Appeals (Board) dismissing

his appeal from the Immigration Judge’s (IJ) decision ordering him removed from the

United States. Don conceded that he is not a citizen or national of the United States, that

he was admitted here with an E-3 visa, and that he overstayed his period of authorization.

The IJ therefore found him removable as charged and ordered his removal.

Don challenges his removal order, claiming that the statute forming the basis for his

removal, 8 U.S.C. § 1227(a)(1)(B), is impermissibly vague, rendering his Notice to Appear

invalid. Upon review, we find this claim to be without merit. Jordan v. De George, 341

U.S. 223, 231 (1951). Next, Don claims he was authorized by 8 U.S.C. § 1202(g) to remain

in this country temporarily after his visa expired. After reviewing the statute, we conclude

that this claim is unavailing. Next, Don’s claim that the Board violated his due process

rights by failing to consider his void for vagueness claim is meritless, as the Board does

not have authority to rule on the constitutionality of the statutes and regulations

administered by the agency. See Matter of Valdovinos, 18 I. & N. Dec. 343, 345 (B.I.A.

1982). We therefore deny the petition for review in part. See In re Kumaragamage Don

(B.I.A. July 10, 2020).

Finally, Don contends that the DHS’s decision to initiate removal proceedings

against him was improper and violated his due process rights. In support of this claim,

Don cites the affidavit he submitted in support of his motion to stay, which is not part of

the administrative record. For several reasons, we lack jurisdiction to consider this claim.

2 See 8 U.S.C. § 1252(b)(4)(A) (“the court of appeals shall decide the petition only on the

administrative record on which the order of removal is based”); 8 U.S.C. § 1252(d)(1) (a

court may review a final order of removal only if the alien has exhausted all administrative

remedies available to the alien); 8 U.S.C. § 1252(g) (no court shall have jurisdiction to hear

any claim by an alien arising from the decision or action by the Attorney General to

commence proceedings, adjudicate cases, or execute removal orders).

Accordingly, we deny in part and dismiss in part the petition for review. We

dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would not aid the decisional

process.

DENIED IN PART, DISMISSED IN PART