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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-12638
Non-Argument Calendar
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D.C Docket No. A093-444-594
MODOU THIAM,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 26, 2021)
Before JILL PRYOR, LUCK and ANDERSON, Circuit Judge.
PER CURIAM:
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I.
The government has moved to dismiss this petition for review for lack of
jurisdiction and, alternatively, for summary denial. We first address our jurisdiction,
which we review de novo. Jeune v. U.S. Att’y Gen,
810 F.3d 792, 799 (11th Cir.
2016). The government argues that the petitioner, Modou Thiam, has failed to
exhaust his administrative remedies by not raising his due process claim before the
Board of Immigration Appeals (“BIA”). “[W]hen a petitioner has neglected to assert
an error before the BIA that he later attempts to raise before [this Court], the
petitioner has failed to exhaust his administrative remedies.”
Id. at 800. In other
words, we cannot consider issues that could have been, but were not properly raised
in immigration proceedings and appealed to the BIA. Bing Quan Lin v. U.S. Att’y
Gen.,
881 F.3d 860, 867 (11th Cir. 2018). However, this is not a stringent
requirement, and we look to the substance of the appeal for facts and allegations that
make manifest the petitioner’s attempt to raise this claim before the BIA. Indrawati
v. U.S. Att’y Gen.,
779 F.3d 1284, 1298 (11th Cir. 2015) (quotation marks omitted).
A petitioner has not exhausted a claim unless he has both raised the “core
issue” before the BIA, and also set out any discrete arguments he relies on in support
of that claim. Jeune, 810 F.3d at 800. “While exhaustion does not require a
petitioner to use precise legal terminology or provide well-developed arguments to
support his claim, it does require that the petitioner provide information sufficient to
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enable the BIA to review and correct any errors below.” Id. (quotation marks
omitted). Although we have noted that some constitutional claims may not be
subject to the exhaustion requirement, where a procedural due process claim
properly falls within the immigration courts’ power to review and provide a remedy,
the claim must be exhausted before it can be considered by this Court. Lin, 881 F.3d
at 867-68 (citing Sundar v. INS,
328 F.3d 1320, 1325 (11th Cir. 2003) and
Amaya-Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1250-51 (11th Cir. 2006)).
In Amaya-Artunduaga, we determined that the petitioner’s due process claim,
regarding the fairness of the Immigration Judge (“IJ”) as a neutral factfinder and
access to a full and fair hearing, was “precisely the kind of procedural error which
requires exhaustion.”
463 F.3d at 1251. If the petitioner fails to raise a claim before
the BIA, we will dismiss that part of the petition for review for lack of jurisdiction.
See e.g.,
id.
In his brief in this Court, Thiam has presented multiple discrete arguments
under the umbrella of the Fifth Amendment Due Process Clause, all of which needed
to be exhausted. See Lin, 881 F.3d at 867-68; Amaya-Artunduaga,
463 F.3d at 1251.
However, as the government argues, Thiam did not expressly mention due process
or the Constitution in his appellate brief before the BIA. Instead, as the BIA noted,
Thiam contended in his appellate brief that the IJ erred in denying Thiam more time
to gather corroborating record evidence and erred by holding the lack of
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corroborating evidence against him. Notably, in rejecting his arguments, the BIA
cited Matter of Santos,
19 I&N Dec. 105, 107-08 (BIA 1984), which explained that
an alien must demonstrate prejudice when raising a Fifth Amendment Due Process
claim. Thiam did not need to use precise legal terminology to exhaust a claim, and,
at least with respect to those arguments, he has sufficiently exhausted administrative
remedies.
However, Thiam also argues for the first time in his brief in this Court that the
IJ was biased and that he was deprived of a neutral factfinder. Thiam asserted in his
appellate brief before the BIA that the IJ allegedly deviated from his stated
procedures on corroborating evidence, but nothing in that brief nor his notice of
appeal to the BIA suggested that the IJ was biased or prejudiced against Thiam based
on the IJ’s use of the phrase “these cases” in describing his procedures. Nor did
Thiam argue, as he does now, that the IJ’s words, tone, emphasis, and manner
displayed a “complete lack of impartiality and neutrality” as he does in his brief in
this Court. Therefore, those arguments are unexhausted, and we lack jurisdiction to
consider them. See Amaya,
463 F.3d at 1251.
Accordingly, the petition for review is DISMISSED IN PART for lack of
jurisdiction with respect to Thiam’s claims of bias, and the government’s motion to
dismiss the petition for lack of jurisdiction is GRANTED IN PART to that extent.
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We now turn to the government’s alternative motion for summary denial with
respect to Thiam’s exhausted claims.
II.
Summary disposition is appropriate either where time is of the essence, such
as “situations where important public policy issues are involved or those where
rights delayed are rights denied,” or where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as to the
outcome of the case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).
An appeal is frivolous if it is “without arguable merit either in law or fact.” Napier
v. Preslicka,
314 F.3d 528, 531 (11th Cir. 2002).
We review an IJ’s denial of a motion for a continuance for abuse of discretion.
Zafar v. U.S. Att’y Gen.,
461 F.3d 1357, 1362 (11th Cir. 2006). “Judicial review of
discretionary relief incident to deportation proceedings . . . is limited to determining
whether there has been an exercise of administrative discretion and whether the
matter of exercise has been arbitrary or capricious.” Garcia-Mir v. Smith,
766 F.2d
1478, 1490 (11th Cir. 1985).
The Immigration Judge’s decision on whether to grant a continuance for
“good cause,”
8 C.F.R. § 1003.29, is discretionary, Alvarez Acosta v. U.S. Att’y Gen.,
524 F.3d 1191, 1197 (11th Cir. 2008), as is the decision to allow late filing of
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documents, Tang v. U.S. Att’y Gen.,
578 F.3d 1270, 1276 (11th Cir. 2009) (citing
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C.F.R. § 1003.31(c)). We have concluded that there is “no constitutionally protected
right to the discretionary relief of a continuance of removal proceedings.” Haswanee
v. U.S. Att’y Gen.,
471 F.3d 1212, 1218-19 (11th Cir. 2006) (per curiam); Zafar v.
U.S. Att’y Gen.,
461 F.3d 1357, 1367 (11th Cir. 2006). Similarly, exclusion of late-
filed documents in the Immigration Judge’s exercise of discretion does not give rise
to a due process claim. Tang,
578 F.3d at 1276 (“Tang does not have a
constitutionally protected liberty interest in the admission of evidence after the
court-ordered deadline.”).
When an alien says that he needs more time to obtain additional evidence, he
must show good cause, such as specifying what documents he is seeking and “how
they would have bolstered her withholding of removal claim.” Mi Ja Cho v. U.S.
Att’y Gen., 661 F. App’x 568, 572-73 (11th Cir. 2016); see also Matter of Sibrun,
18 I. & N. Dec. 354, 356 (BIA 1983) (bare allegation that alien could have located
unnamed witnesses if given a continuance is not sufficient to show abuse of
discretion; the movant must show what the witness would have said, that he was
available and willing to testify, and how it would have changed outcome).
IJ’s have administrative control over the removal hearing and the IJ “may set
and extend time limits for the filing of applications and related documents and
responses thereto, if any. If any application or document is not filed within the time
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set by the [IJ], the opportunity to file that application or document shall be deemed
waived.”
8 C.F.R. § 1003.31(c).
Here, there is no substantial question that Thiam cannot support a due process
claim as there is no constitutionally protected right based on an IJ’s discretionary
decisions. See Haswanee,
471 F.3d at 1218-19; Tang,
578 F.3d at 1276.
Accordingly, Thiam cannot allege a due process violation based on those two
discretionary decisions.
However, even considering the merits, the IJ did not abuse its discretion in
denying Thiam’s request for a continuance and excluding his late-filed evidence.
First, Thiam failed to demonstrate good cause for needing a continuance as he
repeatedly failed to explain to the IJ what type of documents he was waiting on and
how they would affect his case, despite the IJ repeatedly telling him that he had to
do so to substantiate his request. See Mi Ja Cho, 661 F. App’x at 572-73. Even on
appeal, Thiam has yet to describe in any detail the documents, how they would have
impacted his case, and whether he has obtained the documents in the intervening
years.
Additionally, the IJ reasonably excluded the evidence introduced at the merits
hearing considering (1) his counsel failed to file the documents in accordance to the
15-day advance filing requirement or paginate them, (2) his counsel failed to
demonstrate good cause for why the documents were not filed in compliance with
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the IJ’s scheduling requirement, especially since the main portion of the documents
was Thiam’s own personal statement, which presumably could have been written at
any time, and (3) the documents were introduced as the hearing was about to start,
without giving the court and the government a chance to review them in order to still
conduct the hearing as schedule. Further, the IJ questioned Thiam during the hearing
and allowed him to testify to many of the things covered by the documents, including
his story of fleeing Senegal and his family’s presence in France. Accordingly, there
is no substantial question that the IJ did not abuse its discretion and did not violate
Thiam’s due process rights by denying his request for a continuance and excluding
the late-filed evidence.
Thus, there is no substantial question as to the outcome of the case, and the
government’s position is correct as a matter of law. See Groendyke,
406 F.2d at
1162. Accordingly, the government’s motion for summary denial is GRANTED as
to Thiam’s properly exhausted claims.
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