Javier Alejo-Ramirez v. U.S. Attorney General , 687 F. App'x 883 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12925
Non-Argument Calendar
________________________
Agency No. A205-130-643
JAVIER ALEJO-RAMIREZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 5, 2017)
Before MARCUS, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:
Javier Alejo-Ramirez (“Alejo”) appeals the Board of Immigration Appeals’s
(“BIA”) denial of his petition for cancellation of removal. On appeal, Alejo argues
that: (1) the BIA and Immigration Judge (“IJ”) erred in denying him cancellation
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of removal based on its finding that he lacked good moral character; and (2) the
IJ’s hostile conduct, his counsel’s ineffective assistance, and the BIA’s failure to
review the record denied him due process. After thorough review, we affirm.
When the BIA issues a separate decision, we review only that decision,
“except to the extent that [the BIA] expressly adopts the IJ’s opinion.” Al Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review de novo questions
about the BIA’s statutory interpretation and other questions of law. De Sandoval
v. U.S. Att’y Gen., 440 F.3d 1276, 1278 (11th Cir. 2006). We also review de novo
jurisdictional questions and constitutional challenges, including alleged due
process violations. Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 548 (11th Cir. 2011);
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We
review the BIA’s factual determinations under the substantial evidence test, which
means we will affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole. Ademfi
v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We will not
reverse the BIA’s decision unless the record compels it. Id. at 1027.
First, we are unpersuaded by Alejo’s argument that the BIA and IJ erred in
denying him cancellation of removal based on its finding that he lacked good
moral character as evidenced by his testimony concerning his prior use of aliases.
For certain nonpermanent residents, the Attorney General may cancel the removal
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of any alien who is inadmissible or deportable from the United States if: (1) the
alien has been physically present in the United States for a continuous period of
not less than ten years prior to the application; (2) he has been a person of good
moral character for those ten years; (3) he has not been convicted of certain crimes;
and (4) the alien’s removal would present an extreme hardship to the alien’s
spouse, parent, or child who is a U.S. citizen or lawful permanent resident. 8
U.S.C. § 1229b(b)(1). A person shall be deemed not to be of good moral character
if he “has given false testimony for the purpose of obtaining” immigration or
naturalization benefits. 8 U.S.C. § 1101(f)(6). “It is well established that when the
statute’s language is plain, the sole function of the courts -- at least where the
disposition required by the text is not absurd -- is to enforce it according its terms.”
Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004) (quotation omitted).
Here, the BIA and IJ did not err in finding that Alejo lacked good moral
character based on his false testimony about his prior use of aliases. As the record
shows, Alejo provided five different names in ten separate encounters with border
officers. When the IJ presented Alejo with not only the names he used, but also his
pictures associated with those names, Alejo continued to deny he used aliases, or at
least said he could not recall using them. On this record, it was not unreasonable
for the IJ to believe that Alejo was lying based on the significant number of times
he used an alias. Additionally, it did not appear from the record that Alejo was
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confused, and, moreover, Alejo was provided an interpreter. Because the record
supports the IJ’s finding, we deny his petition for review as to this claim.
As for Alejo’s claim that the IJ’s hostile conduct, his counsel’s ineffective
assistance, and the BIA’s failure to review the record denied him due process, we
lack jurisdiction over these claims. Under the Immigration and Nationality Act
(“INA”), we lack jurisdiction to review the denial of discretionary relief in
immigration proceedings, and this discretionary decision bar specifically applies to
any decision regarding cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i). We
have held that the INA precludes appellate review of the BIA’s purely
discretionary determination that an alien has failed to satisfy the “exceptional and
extremely unusual hardship” prong of the four-part cancellation-of-removal test.
Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221-23 (11th Cir. 2006).
Nevertheless, we retain jurisdiction to consider constitutional claims or
questions of law. 8 U.S.C. § 1252(a)(2)(D). Like challenges to the BIA’s
determination of the hardship prong of the cancellation-of-removal test, challenges
to the BIA’s determination of the “good moral character” prong are not
constitutional claims or questions of law subject to review pursuant to §
1252(a)(2)(D). See Alhuay, 661 F.3d at 549-50 (discussing the hardship prong).
In order for us to possess jurisdiction pursuant to the constitutional claim
exception, a petitioner’s claim must allege a colorable constitutional violation.
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Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 (11th Cir. 2007). We lack
jurisdiction under § 1252(a)(2)(D) to consider a meritless constitutional claim.
Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1333 (11th Cir. 2003). We
also lack jurisdiction to consider claims that have not been raised before the BIA.
Amaya-Artunduaga, 463 F.3d at 1250.
Due process requires that aliens be given notice and an opportunity to be
heard in their removal proceedings, and they are entitled to a full and fair hearing.
Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010); Alhuay, 661 F.3d
at 548. Although we’ve not yet addressed the issue in a published decision, our
sister circuits have recognized that petitioners are entitled to an unbiased arbiter
during removal proceedings, and their due process rights may be violated when the
IJ does not act as a neutral factfinder. See Ahmed v. Gonzales, 398 F.3d 722, 725
(6th Cir. 2005); Reyes-Melendez v. I.N.S., 342 F.3d 1001, 1006 (9th Cir. 2003)).
However, an immigration judge may “administer oaths, receive evidence, and
interrogate, examine, and cross-examine the alien and any witness.” 8 U.S.C. §
1229a(b)(1). In order to establish a due process violation, an alien must show that
he was deprived of liberty without due process, and that the asserted error caused
him substantial prejudice. Lapaix, 605 F.3d at 1143. To show substantial
prejudice, an alien must demonstrate that the outcome of the proceeding would
have been different if the alleged due process violation had not occurred. Id.
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In his petition for review, Alejo has not raised a colorable question of law or
constitutional claim. His claim that the BIA violated his due process rights by
failing to carefully review the evidence is not a constitutional claim or question of
law subject to review pursuant to § 1252(a)(2)(D). See Alhuay, 661 F.3d at 549-
50. As for his argument that the IJ denied him due process by acting in an
inquisitorial manner, it is a meritless constitutional claim -- the IJ was entitled to
ask questions and cross-examine witnesses, and the IJ acted as a neutral factfinder
who extensively reviewed the evidence in making its determination. 8 U.S.C. §
1229a(b)(1). Because these are constitutional claims without merit, we lack
jurisdiction to review them. Gonzalez-Oropeza, 321 F.3d at 1333.
Nor can we review Alejo’s ineffective-assistance-of-counsel claim. Because
he failed to present it to the BIA, it is unexhausted. Amaya-Artunduaga, 463 F.3d
at 1250. Lastly, even if Alejo has raised colorable due process claims, he cannot
show that he was deprived of a liberty interest, since the outcome of the
cancellation of removal proceeding would not have been different. Lapaix, 605
F.3d at 1143. As we’ve said, the IJ and BIA properly found that Alejo lacked good
moral character, and therefore, he was not entitled to cancellation of removal.
Accordingly, we dismiss the petition for review as to these claims.
PETITION DENIED IN PART, DISMISSED IN PART.
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