Ralph Hutchinson v. U.S. Attorney General , 628 F. App'x 675 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12683
Non-Argument Calendar
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Agency No. A042-257-373
RALPH HUTCHINSON,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 13, 2015)
Before TJOFLAT, WILSON, and MARTIN, Circuit Judges.
PER CURIAM:
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Ralph Hutchinson, a native and citizen of Jamaica, seeks review of the
Board of Immigration Appeals’ (BIA) order affirming the Immigration Judge’s (IJ)
order of removal and denial of asylum and deferral of removal under the United
Nations Convention Against Torture and Other Cruel, Inhuman, and Degrading
Treatment or Punishment. Hutchinson makes three arguments on appeal. First he
argues that he sufficiently established that he would likely face torture if returned
to Jamaica. Second he argues that the BIA erred in failing to address his claim that
he was deprived of due process when the IJ denied his motion to continue the
hearing so he could obtain counsel. Third he argues that the BIA did not articulate
its decision on his claim that the IJ was biased in terms sufficient to allow for
appellate review. After careful review, we affirm.
I.
Hutchinson first argues that the torture he experienced in Jamaica was too
extreme to be characterized as “harassment,” so the record does not support the
BIA’s conclusion that he was merely harassed. We lack jurisdiction to review that
decision. We review de novo whether we have jurisdiction over a petition. Tan v.
U.S. Att’y Gen., 446 F.3d 1369, 1373 (11th Cir. 2006). We do not have
jurisdiction to review any final order of removal against an alien who is removable
because he committed an aggravated felony pursuant to the Immigration and
Nationality Act (INA) § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). INA
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§ 242(a)(2)(C); 8 U.S.C. § 1252(a)(2)(C). When this bar to judicial review is
implicated, our review is limited. In these cases, the only facts we may review are
whether the petitioner is (1) an alien (2) who is removable (3) based on having
committed a disqualifying offense. Camacho-Salinas v. U.S. Att’y Gen., 460 F.3d
1343, 1346 (11th Cir. 2006) (per curiam). We also retain jurisdiction to review
constitutional claims or questions of law. See INA § 242(a)(2)(D), 8 U.S.C.
§ 1252(a)(2)(D); Camacho-Salinas, 460 F.3d at 1346–47. Hutchinson was
removed based on an aggravated felony conviction pursuant to INA
§ 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii). Because he does not raise a
constitutional claim or question of law, the first claim in his petition is dismissed.
II.
Hutchinson next argues that the BIA erred in not addressing his claim that
the IJ violated his right to due process by denying his third request for a
continuance to give him more time to hire an attorney. We review an IJ’s denial of
a motion to continue for abuse of discretion. See Zafar v. U.S. Att’y Gen., 461 F.3d
1357, 1362 (11th Cir. 2006). We generally have no power to make de novo
inquiries into matters entrusted to administrative agencies. Gonzales v. Thomas,
547 U.S. 183, 186, 126 S. Ct. 1613, 1615 (2006) (per curiam). Instead, when an
agency has not addressed the “particular issue that a petitioner put before it,” the
proper course is to remand to the agency for additional investigation or
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explanation. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007).
However, we may review these kinds of claims without remand in the “rare
circumstances” in which they turn on a pure question of law. See id. at 1330. As
for Hutchinson’s underlying claim, we review constitutional due process claims de
novo. Avila v. U.S. Att’y Gen., 560 F.3d 1281, 1285 (11th Cir. 2009) (per curiam).
Though there is no Sixth Amendment right to counsel in removal proceedings,
aliens enjoy the right to effective assistance of counsel pursuant to the Due Process
Clause of the Fifth Amendment. Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146
(11th Cir. 1999).
Hutchinson argues that the IJ denied him a fair and impartial hearing by
denying his third request for a continuance to enable him to hire an attorney.
Because the BIA did not address this claim, we could remand for further
adjudication. However, Hutchinson does not dispute any facts relating to this
claim and the issue here is one of pure law, so we can address it.
The record does not show that Hutchinson was deprived of his Fifth
Amendment right to effective assistance of counsel. Rather, the IJ gave
Hutchinson several chances to get a lawyer. First, the IJ continued Hutchinson’s
March 20, 2013, hearing specifically to allow Hutchinson’s brother to hire him an
attorney, as Hutchinson had requested. When granting this continuance, the IJ said
that he could not appoint Hutchinson a lawyer and warned that he would address
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the government’s allegations at the next hearing even if Hutchinson had not hired a
lawyer. Even so, when Hutchinson appeared without counsel at the next hearing
four months later, the IJ granted a second continuance to give him more time to
hire a lawyer. The IJ again warned that he would address the government’s
allegations at the next hearing even if Hutchinson had not then hired a lawyer.
At the next hearing on September 16, 2013, Hutchinson still had no lawyer
and requested a third continuance. Asked whether a continuance was warranted,
the government proposed that the IJ at least resolve the allegations regarding
removal and leave any other issues for a later date so that Hutchinson would still
have time to hire a lawyer as to those. The IJ denied Hutchinson’s continuance
request and found him removable based on a 2012 conviction for attempted first-
degree murder in Florida, as authorized by INA § 237(a)(2)(A)(iii), 8 U.S.C.
1227(a)(2)(A)(iii). No other issue was resolved at this hearing, and the IJ gave
Hutchinson sixty additional days to file an asylum application. Hutchinson again
appeared without counsel at the next hearing on January 21, 2014. This time, he
requested no continuance.
In light of this series of allowances and warnings, we find that that the IJ
afforded Hutchinson sufficient due process. His petition is denied as to this claim.
III.
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Finally, Hutchinson challenges the BIA’s denial of his claim that the IJ was
not impartial. He argues that the BIA’s opinion was not expressed in terms
sufficient to allow this court to review whether the BIA gave reasoned
consideration to the question of whether the IJ acted impartially in questioning
Hutchinson extensively in contrast to the brief questioning of the government.
When the BIA upholds an IJ’s findings, we review the BIA and IJ’s
conclusions of law de novo and findings of fact for substantial evidence.
Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). The BIA
must give “reasoned consideration” to a petition for relief from removal. Perez-
Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1232 (11th Cir. 2013) (per curiam).
Specifically, the BIA must consider the issues raised and announce its decision in
terms sufficient to enable a reviewing court to perceive that it heard and thought,
rather than merely reacting. Id.
The BIA expressed its denial of Hutchinson’s bias claim in terms sufficient
to allow appellate review. In denying Hutchinson’s claim, the BIA cited the broad
authority of an IJ to regulate the course of a removal proceeding and to interrogate,
examine, and cross-examine the alien who faces removal. See INA § 240(b)(1); 8
U.S.C. § 1229a(b)(1) (“The immigration judge shall administer oaths, receive
evidence, and interrogate, examine, and cross-examine the alien and any
witnesses.”). To the extent Hutchinson argues that the BIA’s decision was simply
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incorrect, the record supports the BIA’s conclusions. The IJ was authorized by
statute to examine Hutchinson during the hearing, and the IJ’s questions reflect no
bias, but rather a desire to elicit information about Hutchinson’s claims.
Hutchinson’s petition is denied as to this claim as well.
PETITION DISMISSED IN PART, DENIED IN PART.
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