Tharanga Wanniarachchi v. William Barr

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 28, 2019
• Docket: 18-2132
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-2132

THARANGA INDIKA WANNIARACHCHI,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted: August 21, 2019 Decided: August 28, 2019

Before GREGORY, Chief Judge, KING, Circuit Judge, and SHEDD, Senior Circuit Judge.

Petition dismissed in part and denied in part by unpublished per curiam opinion.

Tharanga Indika Wanniarachchi, Petitioner Pro Se. Anna Juarez, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.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

Tharanga Indika Wanniarachchi, a native and citizen of Sri Lanka, petitions for

review of an order of the Board of Immigration Appeals (Board) denying his motion to

reconsider and terminate proceedings. We dismiss in part and deny in part the petition for

review.

Wanniarachchi has waived review of the reasons the Board provided for denying

reconsideration by not challenging those reasons in his informal brief. See 4th Cir. Rule

34(b) (requiring court to limit review to issues raised in pro se litigant’s informal brief);

Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014)) (stating that the “informal brief is

an important document; under Fourth Circuit rules, our review is limited to issues

preserved in that brief.”). To the extent that Wanniarachchi seeks review of the Board’s

decision that his conviction for distributing a controlled substance is a controlled substance

offense and an aggravated felony under the Immigration and Nationality Act, the issue is

not properly before us because the Board did not rule on this issue when it denied

reconsideration. Accordingly, we dismiss in part the petition for review.

Removal proceedings are subject to the requirements of procedural due process.

Rusu v. INS, 296 F.3d 316, 320 (4th Cir. 2002). To establish a due process violation,

Wanniarachchi must demonstrate a procedural defect that rendered the proceedings

“fundamentally unfair” and “prejudiced the outcome of the case.” Nardea v. Sessions, 876

F.3d 675, 681 (4th Cir. 2017). We will find prejudice “only when the rights of an alien

have been transgressed in such a way as is likely to impact the results of the proceedings.”

Id. (internal quotation marks omitted). Insofar as Wanniarachchi argues that his removal

2 to Sri Lanka violated his right to due process, we conclude that the argument is without

merit.

Nor has Wanniarachchi established that he was unfairly prejudiced because the

notice to appear did not include the time and place for the first removal hearing. We

recently rejected the same basic claim in United States v. Cortez, 930 F.3d 350 (4th Cir.

2019). In Cortez, we stated that “the failure of the notice to appear filed with the

immigration court to include a date and time for [the] removal hearing [] does not implicate

the immigration court’s adjudicatory authority or jurisdiction.” Id. at 358 (internal

quotation marks omitted). Whether a case is properly docketed with the immigration court

under 8 C.F.R. § 1003.14(a) (2019) turns on whether the notice filed with the immigration

court satisfies the distinct requirements set out at 8 C.F.R. § 1003.15(b), (c) (2019)—which

do not mandate inclusion of the hearing date and time. Cortez, 930 F.3d at 362-64. The

notice filed with the immigration court in Wanniarachchi’s case conformed to that

regulatory definition, meaning that his claim fails on the merits. Accordingly, we deny in

part the petition for review.

We dismiss in part and deny in part the petition for review. We also deny

Wanniarachchi’s motion to supplement the record. 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.

PETITION DISMISSED IN PART AND DENIED IN PART