Arriaya-Flores v. Holder, Jr. , 497 F. App'x 859 ( 2012 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 28, 2012
Elisabeth A. Shumaker
Clerk of Court
ANDRES ARRIAYA-FLORES,
Petitioner,
v. No. 11-9564
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before HARTZ, ANDERSON, and EBEL, Circuit Judges.
Andres Arriaya-Flores, a native and citizen of Mexico, petitions for review of
a final administrative order of removal issued by the Immigration and Customs
Enforcement agency (ICE). Because Arriaya-Flores failed to exhaust his
administrative remedies before the agency, we DISMISS the petition for lack
jurisdiction.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
BACKGROUND
Arriaya-Flores entered this country in 2005 without inspection. In 2010, he
was charged in Utah state court with violating Utah’s Controlled Substances Act.
The charging information alleged that Arriaya-Flores had sold detectives “42
balloons containing a substance that field tested positive for heroin” and that “a twist
of a substance that field tested positive for cocaine” was found inside his car. R. at 8.
He ultimately pleaded guilty to (1) attempting to arrange the distribution of a
controlled substance, a third-degree felony; and (2) attempting to possess a controlled
substance, a misdemeanor.
On September 9, 2011, upon Arriaya-Flores’s release from state custody, ICE
detained him and served him with a “Notice of Intent to Issue a Final Administrative
Removal Order” on the basis that he was deportable as an aggravated felon. Id. at 2.
The administrative record indicates that an immigration-enforcement agent
“explained and/or served” the Notice of Intent in Spanish, and advised Arriaya-Flores
of his right to contact the Mexican consulate, gave him a list of free legal services,
and offered him an opportunity to make a telephone call, which he refused. Id. at 3;
see also id. at 21. At 8:30 a.m., Arriaya-Flores signed the Notice of Intent with three
boxes checked, indicating:
I Do Not Wish to Contest and/or to Request Withholding of Removal
I admit the allegations and charge in this Notice of Intent. I admit that I
am deportable and acknowledge that I am not eligible for any form of
relief from removal. I waive my right to rebut and contest the above
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charges. I do not wish to request withholding or deferral of removal. I
wish to be removed to Mexico.
I understand that I have the right to remain in the United States for 14
calendar days in order to apply for judicial review. I do not wish this
opportunity. I waive this right.
Id. at 3.
On September 12, an attorney claiming to represent Arriaya-Flores
hand-delivered to ICE a “Motion to District Director for Immigration Bond under
INA 236(a).” Supp. R. at 1 (emphasis omitted). The motion was accompanied by,
among other things, a “Form G-28, Notice of Entry of Appearance as Attorney,” id.
at 1, and argument that Arriaya-Flores’s convictions did not preclude issuance of a
bond. The G-28 form had been signed roughly one month earlier by Arriaya-Flores
and his counsel.1
ICE summarily denied the request for a bond by fax on September 13. On
September 15, ICE served Arriaya-Flores personally with a “Final Administrative
Removal Order,” R. at 1, and removed him to Mexico that day. On September 28,
Arriaya-Flores’s counsel requested the charging documents in the case and indicated
that she had not learned of Arriaya-Flores’s deportation until the day after he was
transported to Mexico.
1
Counsel for Arriaya-Flores states in the opening brief that she telephoned ICE
on September 8, before Arriaya-Flores was in ICE custody, seeking his alien number
so she could submit the G-28 form. She also states that she faxed the G-28 form to
ICE around 1:00 p.m. on September 9. Nevertheless, whether the G-28 was given to
ICE on the afternoon of September 9 or on September 12 is not determinative of our
analysis.
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Arriaya-Flores petitions this court for review.
DISCUSSION
Congress has established expedited removal proceedings for aliens who have
been convicted of an aggravated felony and who are not legal permanent residents.
See 8 U.S.C. § 1228(b)(1) & (2). An alien in expedited removal proceedings who has
been served with a Notice of Intent to remove has several options, including filing a
response to the notice in order to either “rebut the allegations contained in the Notice
of Intent” or “request[ ] the opportunity to review the Government’s evidence.”
8 C.F.R. § 238.1(c)(1) & (2). Alternatively, the alien can concede deportability. Id.§ 238.1(d)(1). In that event, “the deciding Service officer shall issue and cause to be
served upon the alien a Final Administrative Removal Order.” Id. ICE may not
execute that order, though, “until 14 calendar days have passed from the date that
such order was issued, unless waived by the alien, in order that the alien has an
opportunity to apply for judicial review.” 8 U.S.C. § 1228(b)(3).
Here, Arriaya-Flores waived any challenges to the Notice of Intent’s charges
and he conceded deportability. Further, he waived his right to remain in the United
States while he sought judicial review. Although he now seeks judicial review of the
agency’s final removal order, arguing that his removal was improper because his
convictions do not constitute aggravated felonies, he did not make that argument
before waiving his rights and conceding deportability. Thus, he failed to present his
argument to the agency in time for it to be administratively addressed.
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We “may review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1).
This jurisdictional command applies to expedited removal proceedings. See, e.g.,
Escoto-Castillo v. Napolitano, 658 F.3d 864, 866 (8th Cir. 2011) (collecting cases).
Exhaustion gives the agency “the opportunity to apply its specialized knowledge and
experience to the matter, and to resolve a controversy or correct its own errors before
judicial intervention.” Sidabutar v. Gonzales, 503 F.3d 1116, 1121 (10th Cir. 2007)
(citation and quotations omitted).
Arriaya-Flores seeks to avoid the exhaustion rule, arguing that his waivers of
“rights were involuntarily entered where [he] asked for his attorney several times and
where the ICE officer failed to adequately explain . . . that by signing the [Notice of
Intent] [he] was waiving his rights to counsel, his right to contest the charges and his
rights to see an immigration judge for relief against removal and bond.” Aplt. Br. at
45. Arriaya-Flores contends that “[t]his all violated his due process rights.” Id.In removal proceedings, “aliens are entitled only to procedural due process,
which provides the opportunity to be heard at a meaningful time and in a meaningful
manner.” Schroeck v. Gonzales, 429 F.3d 947, 952 (10th Cir. 2005) (quotation
omitted). “[T]he procedural safeguards are minimal because aliens do not have a
constitutional right to enter or remain in the United States.” Id. at 951-52 (quotation
omitted).
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To show that his waivers were involuntary, counsel for Arriaya-Flores relies
on a declaration she prepared that purports to recount a telephone conversation with
Arriaya-Flores while he was in Mexico in January 2012. In the opening paragraph of
that document, “[c]ounsel asks for leave to sign the [declaration] for Mr. Flores
where Mr. Flores has attested to [c]ounsel that the . . . stated [assertions concerning
removal] in fact occurred.” Aplt. Opening Br., Addendum B at 1. We reject this
document. It does not qualify as Arriaya-Flores’s own declaration. See 28 U.S.C.
§ 1746 (providing for an unsworn declaration “in writing of such person which is
subscribed by him, as true under penalty of perjury” (emphasis added)). Further,
contrary to the assertion of Arriaya-Flores’s counsel, this document is not authorized
by 10th Cir. R. 10.3(D)(1), which requires an appellant to include in the record a
copy of “the pages of the reporter’s transcript” when appealing “the admission or
exclusion of evidence.” This document is clearly not a transcript, and was neither
admitted nor excluded from the administrative proceedings—indeed, it did not come
into existence until months after the proceedings closed. Finally, to the extent the
document could be viewed alternatively as counsel’s own declaration, it it entirely
hearsay, providing little reliable evidence.2 Thus, Arriaya-Flores has failed to
2
Additionally, we must “decide [Arriaya-Flores’s] petition [for review] only on
the administrative record on which the order of removal is based.” 8 U.S.C. §
1252(b)(4)(A). The purported declaration is not in the record.
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adequately support his claim that ICE misled and coerced him into waiving his rights
and signing the Notice of Intent.3
Arriaya-Flores also argues that ICE violated his due process rights by
“fail[ing] to properly acknowledge the legal representation by Counsel.” Aplt. Br. at
46. He contends that “ICE’s policy of not allowing G-28s to be filed until the alien is
not only in the custody of ICE but has been charged” prevented counsel from
entering an appearance until after he was in custody and had waived his rights. Id. at
44. But as Arriaya-Flores acknowledges, the reason ICE does not accept G-28 forms
before an alien is in custody and charged is that “[o]therwise, ICE . . . cannot track
which G-28 goes to which alien.” Aplt. Br. at 11. “[I]t is a touchstone of
administrative law that the formulation of procedures is basically to be left within the
discretion of the agencies to which Congress had confided the responsibility for
substantive judgments.” Sidabutar, 503 F.3d at 1120 (quotation and brackets
omitted). Arriaya-Flores has not shown that ICE’s policy is an abuse of discretion.
Indeed, ICE’s policy is consistent with the regulation that “commence[s] [expedited
3
Insofar as Arriaya-Flores asserts that the language in the Notice of Intent was
not understandable, he fails to devote any supporting argument or authority. We
therefore do not consider that assertion. See Herrera-Castillo v. Holder, 573 F.3d
1004, 1010 (10th Cir. 2009) (explaining that an alien waives an issue by failing to
make argument or cite authority to support his assertion); see also Fed. R. App. P.
28(a)(9)(A) (requiring that an appellant’s argument be supported by contentions and
reasoning, with citations to authorities and parts of the record on which the appellant
relies).
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removal proceedings] upon personal service of the Notice of Intent upon the alien.”
8 C.F.R. § 1238.1(b)(2)(i).
Moreover, the timing of the G-28’s submission had no effect on
Arriaya-Flores’s waivers, given that despite having signed the G-28 roughly one
month before being detained by ICE and thus being aware of counsel’s
representation, he nevertheless refused the opportunity to telephone counsel and take
advantage of that representation before waiving his rights. Consequently,
Arriaya-Flores was not harmed by ICE’s policy, and therefore, his due process rights
were not violated, see Alzainati v. Holder, 568 F.3d 844, 851 (10th Cir. 2009) (“To
prevail on a due process claim, an alien must establish not only error, but
prejudice.”).
CONCLUSION
Because Arriaya-Flores failed to exhaust his administrative remedies, his
petition for review is DISMISSED. But his motion for leave to proceed in forma
pauperis is GRANTED. The government’s motion to withdraw its motion for
reconsideration of this court’s order for re-certification of the record is GRANTED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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