Brown v. Barr ( 2019 )

UNITED STATES COURT OF APPEALS FILED
United States Court of Appeals
FOR THE TENTH CIRCUIT Tenth Circuit
_________________________________
September 17, 2019
NAVADO RICARDO BROWN,
Elisabeth A. Shumaker
Clerk of Court
Petitioner,
v. No. 18-9580
(Petition for Review)
WILLIAM P. BARR, United States
Attorney General,
Respondent.
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ORDER AND JUDGMENT *
_________________________________
Before TYMKOVICH, Chief Judge, BALDOCK and HARTZ, Circuit Judges.
_________________________________
Navado Ricardo Brown petitions for review of the Board of Immigration
Appeals (BIA) decision affirming an Immigration Judge’s (IJ) decision denying his
application for adjustment of status. 1 Exercising jurisdiction under 8 U.S.C. § 1252,
we deny the petition for review.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1
The BIA also dismissed Brown’s appeal of the IJ’s denial of his applications
for asylum, withholding of removal, and protection under the Convention Against
Background
Brown is a native and citizen of Jamaica who entered the United States in 2013
on a nonimmigrant K–1 fiancé visa, see 8 U.S.C. § 1101(a)(15)(K)(i), which
authorized him to remain in the country until February 25, 2014. Brown overstayed
his visa and in June 2017, he pleaded guilty to felony menacing in Colorado state
court. Before his scheduled sentencing hearing, the Department of Homeland
Security (DHS) took him into custody and initiated removal proceedings, charging
him with removability under 8 U.S.C. § 1227(a)(1)(B) for staying in the country
beyond the period authorized by his visa.
At a hearing in October 2017, Brown admitted the allegations regarding his
nationality and that he had overstayed his visa without permission, but he alleged that
he married his fiancée, a U.S. citizen, before his visa expired and sought to extend it.
The IJ continued the removal proceedings to allow the parties to determine whether
Brown complied with the terms of his visa. She encouraged him to get a pro bono
attorney to help him prove his marriage and resolve other visa-related issues with the
United States Citizenship and Immigration Service (USCIS).
At the next hearing, Brown submitted a marriage certificate indicating that he
and his U.S. citizen wife had gotten married before his visa expired. Counsel for
DHS indicated that it had no record of the marriage and that Brown had not sought
either an extension of his visa or adjustment of his status. The IJ continued the
Torture (CAT), but he does not challenge those rulings on appeal. Accordingly, we
do not address them.
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removal proceedings to allow DHS to determine whether Brown had filed the
marriage certificate with USCIS and to allow Brown to obtain the information he
needed to establish that he complied with the other terms of his visa. Brown said he
was having difficulty communicating with his wife and USCIS, and complained that
his deportation officer had not provided “information about [his] case.” Admin. R. at
131. But the IJ told Brown that gathering the information was not his deportation
officer’s responsibility and she reminded him that it was his burden to establish that
he had complied with the terms of his visa, not DHS’s burden to establish that he
didn’t. The IJ again encouraged Brown to seek pro bono legal assistance.
Brown reported at the next hearing that he had not determined what, if any,
documents had been submitted to DHS after he was married, but said his wife told
him DHS had denied a waiver she had applied for on his behalf. Counsel for DHS
had no record of a waiver application but suggested that Brown could seek an
adjustment of status. Id. at 137. The IJ reiterated that it was Brown’s responsibility
to prove that he complied with the visa and to take the steps necessary to seek an
adjustment of status, and when she asked him what efforts he had made to do so, he
indicated that he was trying to “come up with the paperwork and stuff” but was
having difficulty because his wife, who lived in another state, had recently had
surgery and because “you guys . . . never told me directly what type of paperwork . . .
to present.” Id. at 139. The IJ explained that she was not Brown’s attorney and
noted that despite her repeated suggestions that he seek pro bono legal assistance, he
had failed to do so. She expressed concern that Brown did not “seem to be making a
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lot of effort . . . to find these documents,” continued the hearing a third time to give
him “one more opportunity to do so,” and provided him with an application for
adjustment of status. Id. at 141.
At the next hearing in November 2017, Brown appeared without
documentation proving he complied with the terms of his visa. He submitted his
application for adjustment of status, however, and the IJ continued the hearing to
allow him to gather the materials he needed to complete his application. She
explained that Brown was required to have a medical examination and that he was
“responsible for coordinating the medical exam” and working with officials at his
detention facility to schedule transportation. Id. at 156. She advised him to review
the instructions on the application to ensure that he complied with the requirements
for an adjustment of status, emphasizing that she could not consider his application if
he did not have a medical examination or it was otherwise incomplete. When Brown
expressed frustration that his detention officer was not helping him with the process,
the IJ reiterated that it was not the officer’s responsibility to do so and recommended
several times, as she had at each of the previous hearings, that Brown seek help from
pro bono legal services. The IJ then continued the removal proceedings a fourth time
and stressed the importance of Brown bringing a completed application, including
proof of a medical examination, to the next hearing.
Brown appeared at the next hearing without having had the required medical
examination and blamed his detention officer for his failure to complete his
adjustment application. The IJ repeated her earlier admonitions that it was Brown’s
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responsibility, not DHS’s, to find a medical professional and schedule the exam. She
then continued the proceedings again and told Brown:
I’ll give you another opportunity to get that done but I can’t keep
continuing your case if you’re not going to take any action for
yourself in this case. At some point, I will deem [the adjustment
application] abandoned and you’ll be removed. . . . [Y]ou’re going
to have to take some steps for yourself to get the medical exam
done. . . .
Id. at 162. The IJ acknowledged that the process was complicated and that Brown’s
detention made it even more difficult, and she again recommended that he seek pro
bono legal assistance. But she noted that Brown had chosen to continue to represent
himself and told him that having made that choice, it was his “responsibility to get it
done.” Id. at 166.
At the next hearing in January 2018, Brown reported that he had not completed
the medical examination and, because his adjustment application was incomplete, the
IJ reset the matter for a final hearing on his asylum application. She told Brown she
would consider his adjustment application at that hearing if he could prove he had
had a medical examination. But she reiterated that she could not adjudicate the
application if it was incomplete and told him that if he did not have a medical
examination before the next hearing, she would deem the application abandoned.
At the next hearing in February 2018, Brown reported that he had not had a
medical examination. When the IJ asked what steps he had taken to schedule an
appointment, he said he had tried unsuccessfully to contact his wife and had asked
his deportation officer to transfer him to a facility where he could use the phone more
5
frequently. The IJ indicated that she was willing to continue the proceedings “one
more time” to allow Brown to have the exam and complete his adjustment
application, id. at 177, and she gave him a document printed from the USCIS website
explaining the medical examination process and a list of thirty nearby doctors
authorized to perform them. After Brown testified in support of his asylum
application, the IJ continued the proceedings for a decision on the asylum application
and for consideration of his adjustment application.
The final hearing was in May 2018—seven months after the initial hearing and
six months after the IJ first explained the medical examination requirement. Brown
indicated that he had still not had a medical examination because the doctors had not
returned his and his family members’ calls.
The IJ issued a written decision denying all relief. With respect to Brown’s
adjustment application, she found him ineligible for adjustment of status because he
failed to complete his medical evaluation and submit Form I-693, Report of Medical
Examination and Vaccination Record. Id. at 97. Brown appealed to the BIA,
challenging the IJ’s determination that he made insufficient efforts to get a medical
examination and complete the required paperwork, and claiming, without
explanation, that the denial of his application violated his right to due process.
The BIA affirmed the IJ’s ruling and dismissed his appeal, agreeing with the
IJ’s determination that Brown’s failure to obtain a medical examination rendered him
ineligible for an adjustment in status. The BIA acknowledged Brown’s argument that
he was unable to have a medical exam because of his detention and other logistical
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challenges. But the BIA noted that despite the IJ having given Brown the
information he needed to complete the medical examination requirement and having
continued the proceedings multiple times to allow him to either schedule an
appointment himself or get pro bono legal assistance to help him schedule one, he
failed to articulate “any efforts or arrangements he may have made toward
compliance with the medical examination requirement.” Id. at 3. The BIA also
concluded that the record did not support Brown’s “general and lacking in specificity
allegation that his due process rights have been violated.” Id. at 5.
Discussion
Brown claims the BIA violated his right to due process by finding him
ineligible for an adjustment of status based on his failure to comply with the medical
examination requirement.
1. Jurisdiction
As a threshold matter, we note that although we do not have jurisdiction to
review the agency’s ultimate determination whether to grant an adjustment of status
to an alien who is statutorily eligible for it, see 8 U.S.C. § 1252(a)(2)(B)(i), we do
have jurisdiction to consider “constitutional claims or questions of law,”
§ 1252(a)(2)(D), and final orders of removal, § 1252(a)(1). Accordingly, we have
jurisdiction to consider Brown’s claim that the BIA violated his right to due process
by finding him ineligible for an adjustment of status and ordering him removed. See
Herrera-Castillo v. Holder, 573 F.3d 1004, 1006, 1010 (10th Cir. 2009) (recognizing
that court lacks jurisdiction under § 1252(a)(2)(B) to review an agency’s
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discretionary determinations but exercising jurisdiction under § 1252(a)(2)(D) to
review alien’s equal protection challenge to BIA’s determination that he was
ineligible for an adjustment of status).
2. Requirements for Adjustment of Status and Standard of Review
The Attorney General may, in his discretion, adjust an alien’s status to that of
a lawful permanent resident, including based on the alien’s marriage to a U.S. citizen,
if the alien demonstrates that: (1) he is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence; and (2) a visa is
immediately available to him. See 8 U.S.C. § 1255(c), (i)(1)(A)(ii), (i)(2); Padilla-
Caldera v. Holder, 637 F.3d 1140, 1148 (10th Cir. 2011). One of the requirements
for satisfying the eligibility requirement is establishing that the applicant is not
inadmissible on public health grounds, which requires having a medical examination
and submitting a Form I-693 reporting the results of the medical examination to
USCIS. See 42 U.S.C. § 252 (authorizing promulgation of regulations regarding
medical examinations of aliens); 8 C.F.R. § 245.5 (“[A]n applicant for adjustment of
status shall be required to have a medical examination by a designated civil surgeon .
. . .”); 42 C.F.R § 34.1(d) (providing that requirements regarding medical
examinations apply to applicants for adjustment of status); Carpio v. Holder,
592 F.3d 1091, 1093 (10th Cir. 2010) (explaining that aliens seeking to obtain
adjustment of status to that of a lawful permanent resident “must proceed through a
detailed procedure involving” numerous steps and must “file various documents
establishing their eligibility for the visas and submit to a medical examination”); see
8
also 42 C.F.R § 34.3 (establishing scope of medical examinations), § 34.4 (requiring
medical examiners to issue medical notification of their findings), § 34.2(l) (defining
medical notification).
The applicant bears the burden of establishing eligibility for adjustment of
status and demonstrating that he merits a favorable exercise of discretion. 8 U.S.C.
§ 1229a(c)(4)(A); Mena-Flores v. Holder, 776 F.3d 1152, 1161–62 (10th Cir. 2015);
Matter of Rainford, 20 I. & N. Dec. 598, 599 (BIA 1992). To meet that burden, the
applicant “must comply with the applicable requirements to submit information or
documentation” supporting his application. 8 U.S.C. § 1229a(c)(4)(B). The IJ
determines whether the applicant’s testimony is credible and persuasive and whether
he has satisfied his burden of proof. Id. The IJ may require the applicant to provide
corroborating evidence unless he demonstrates that he “does not have the evidence
and cannot reasonably obtain the evidence.” Id.
Here, a single member of the BIA affirmed the IJ’s decision in a brief order.
See 8 C.F.R. § 1003.1(e)(5). Under these circumstances, we review the BIA’s
opinion rather than the decision of the IJ, but we may also consult the IJ’s “more
complete explanation” of the grounds for the Board’s decision. Neri-Garcia v.
Holder, 696 F.3d 1003, 1008–09 (10th Cir. 2012) (internal quotation marks omitted).
We review the BIA’s legal conclusions, including on constitutional questions,
de novo and its factual findings for substantial evidence. Mena-Flores, 776 F.3d at
1162. Under the substantial evidence standard, “our duty is to guarantee that factual
determinations are supported by reasonable, substantial and probative evidence
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considering the record as a whole.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204
(10th Cir. 2006) (alterations and internal quotation marks omitted). The agency’s
findings of fact “are conclusive” unless the record, considered as a whole,
“demonstrates that any reasonable adjudicator would be compelled to conclude to the
contrary.” Rivera-Barrientos v. Holder, 666 F.3d 641, 645 (10th Cir. 2012) (internal
quotation marks omitted); see also Sidabutar v. Gonzales, 503 F.3d 1116, 1125
(10th Cir. 2007) (explaining that “[i]t is not our prerogative to reweigh the evidence,
but only to decide if substantial evidence supports the agency’s decision” (internal
quotation marks omitted)). Our review is limited to the agency record. 8 U.S.C.
§ 1252(b)(4)(A).
3. Analysis of Brown’s Due Process Claims
Brown claims the denial of his adjustment application violated his right to due
process because (1) he was “denied his right to an unbiased fact finder,” Opening Br.
at 3; and (2) the IJ “did not consider that the [sic] he was detained and a Pro Se
litigant who has little resources while detained,” id. at 5. We disagree.
“Because aliens do not have constitutional right to enter or remain in the
United States, the only protections afforded are the minimal procedural due process
rights for an opportunity to be heard at a meaningful time and in a meaningful
manner.” Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009) (internal
quotation marks omitted). To prevail on his due process claim, Brown must establish
“both that he was deprived of due process and that that deprivation prejudiced him.”
10
Lucio-Rayos v. Sessions, 875 F.3d 573, 576 (10th Cir. 2017), cert. denied, 139 S. Ct.
865 (2019).
The right to a removal hearing that comports with due process includes the
right to “a fair and impartial decision-maker.” Id. An IJ must recuse herself if she
(1) has a personal bias “stemming from an extrajudicial source which resulted in an
opinion on the merits on some basis other than what [she] learned from her
participation in the case”; (2) her judicial conduct demonstrates “such pervasive bias
and prejudice” that it amounts to “bias against [the] party”; or (3) she has “an
inherent bias.” Id. (brackets and internal quotation marks omitted).
Brown cites no facts or law supporting his conclusory claim that the IJ was
biased, and our independent review of the record reveals no evidence that the IJ
denied Brown’s application based on extrajudicial influences or that she was biased
against him. Nor does the record support Brown’s claim that the IJ violated his right
to due process by failing to consider the difficulties his detention, pro se status, and
limited resources presented in completing the required medical examination.
The IJ complied with regulatory requirements by advising Brown of his right
to obtain counsel and providing him with a list of pro bono legal services available to
him. See 8 C.F.R. § 1240.10(a). She repeatedly recognized the challenges Brown’s
detention presented, cautioned him that choosing to proceed pro se would make
navigating the process even more difficult, and encouraged him at each of the eight
hearings to obtain pro bono legal assistance. She gave him the information he needed
to schedule and complete his medical examination himself if he chose to proceed pro
11
se, and she continued the hearing four times after he submitted his adjustment
application to allow him to complete it. When he blamed his inability to obtain a
medical examination on the IJ, his detention officer, and his difficulties
communicating with his wife, the IJ appropriately reminded him that it was his
burden to establish eligibility for adjustment of status and complete the medical
examination. And when she asked him multiple times to explain what steps he had
taken to do so, he provided no specific examples, giving only vague assurances that
he was “trying [his] best,” Admin. R. at 139, 173, see id. at 141, 176, and saying the
unnamed doctors his family members contacted had not responded.
On this record, we conclude that Brown’s own failure to obtain a medical
examination does not call into question the fundamental fairness of his removal
proceedings, and we agree with the BIA’s determination that the IJ did not violate his
due process rights by finding him ineligible for adjustment of status. In so
concluding, we do not consider the new documentation Brown submitted in support
of his petition for review. Brown did not present this evidence to the IJ, and we must
decide his petition “only on the administrative record on which the order of removal
is based.” 8 U.S.C. § 1252(b)(4)(A).
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Conclusion
The petition for review is denied. Brown’s motion to proceed on appeal
without prepayment of costs and fees is granted.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
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