Pedro Arturo Salmeron-Salmeron v. Warden Bill Spivey , 926 F.3d 1283 ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15152
________________________
D.C. Docket No. 4:16-cv-00291-CDL-MSH
PEDRO ARTURO SALMERON-SALMERON,
Petitioner - Appellant,
versus
WARDEN BILL SPIVEY,
FORMER SECRETARY DHS JEH JOHNSON,
ACTING ATTORNEY GENERAL SALLY QUILLIAN YATES,
Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(June 13, 2019)
Before MARCUS and BLACK, Circuit Judges, and RESTANI, * Judge.
RESTANI, Judge:
*
Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by
designation.
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Pedro Arturo Salmeron-Salmeron, an El Salvadorian national, appeals the
district court’s dismissal of his petition for writ of habeas corpus and partial grant
of summary judgment in favor of the Government regarding Salmeron-Salmeron’s
claim that United States Citizen and Immigration Services (“USCIS”) should have
exercised jurisdiction over his application for asylum.
After a review of the record and consideration of the arguments made both
in the briefs and during oral argument, we affirm the district court’s dismissal of
his petition for writ of habeas corpus and partial grant of summary judgment.
I. BACKGROUND
The facts of this case are not in dispute. In May 2014, Salmeron-Salmeron
entered the United States as a sixteen-year-old. On his initial I-213, Record of
Deportable/Inadmissible Alien form (“I-213”), a border officer indicated that
Salmeron-Salmeron feared returning to El Salvador. He was identified as an
unaccompanied alien child (“UAC”), and eventually released to his parents in
North Carolina.
Appellant’s parents hired an immigration attorney, but the attorney did not
file a claim for asylum, for withholding of removal, or under the Convention
Against Torture.1 Instead, the attorney applied for voluntary departure only, which
1
Appellant filed an ineffective assistance of counsel claim asserting that his previous
attorney should have sought these or other avenues of immigration relief and attempted to reopen
the case in order to apply for asylum. After a series of appeals, the Fourth Circuit eventually
2
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an Immigration Judge granted. Salmeron-Salmeron did not depart by July 21,
2015, as required by the terms of the voluntary departure, so the order became a
final order of removal. On August 27, 2015, Salmeron-Salmeron turned eighteen
years old. In January 2016, Immigration and Customs Enforcement (“ICE”)
detained Salmeron-Salmeron, completed a new I-213 stating that Salmeron-
Salmeron was eighteen, and transferred him to the Stewart County Detention
Center—an adult detention facility in Lumpkin, Georgia.
During his detention, Salmeron-Salmeron filed an asylum application with
USCIS and a petition for writ of habeas corpus under 28 U.S.C. § 2241.2 On July
28, 2016, USCIS determined that it did not have jurisdiction over Appellant’s
asylum claim because his UAC determination had been terminated prior to his
filing for asylum. Salmeron-Salmeron was deported to El Salvador on November
12, 2016.
In a Report and Recommendation to the district court, the magistrate judge
recommended the dismissal of Salmeron-Salmeron’s habeas corpus claim as moot
given his deportation from the United States. Report and Recommendation,
Salmeron-Salmeron v. Lynch, No. 4:16-cv-291-CDL-MSH (M.D. Ga. Aug. 24,
2017) (“Report and Recommendation”). The magistrate judge also recommended
affirmed the BIA’s denial of the motion. Salmeron-Salmeron v. Sessions, No. 16-2209, 2017 WL
3327813, 694 Fed. App’x 196 (4th Cir. Aug. 4, 2017).
2
Salmeron-Salmeron raised his Administrative Procedure Act (“APA”) claim in his
habeas petition, pursuant to 5 U.S.C. § 703.
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that the district court grant the Government’s motion for partial summary judgment
on Salmeron-Salmeron’s APA claims under 5 U.S.C. § 706 because USCIS had a
rational basis for its decision. Id. at 10. After a de novo review of the record and
consideration of Salmeron-Salmeron’s objections, the district court adopted the
Report and Recommendation in full and entered judgment on September 25, 2017.
Order on Report and Recommendation, Salmeron-Salmeron v. Spivey, No. 4:16-
cv-291-CDL (M.D. Ga. Sept. 22, 2017) (“Order on Report and
Recommendation”); Salmeron-Salmeron v. Spivey, No. 4:16-cv-291-CDL-MSH
(M.D. Ga. Sept. 25, 2017).
On appeal, Salmeron-Salmeron asserts two claims. First, he argues that the
inclusion of numerous documents unrelated to the jurisdictional decision of USCIS
and initial exclusion of other documents relied on by USCIS precluded effective
judicial review. Second, he argues that the jurisdictional decision of USCIS was
arbitrary and capricious because it violated agency procedures regarding UAC
designations. Specifically, Salmeron-Salmeron argues that agency procedure
required USCIS to adopt his previous UAC designation and exercise jurisdiction
over his asylum claim because no affirmative act terminating that designation
occurred. In a footnote, Salmeron-Salmeron also contends that if the Court reverses
the district court’s summary judgment decision on the APA claims, it should also
reverse the decision to dismiss his habeas claim as moot.
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II. JURISDICTION AND STANDARD OF REVIEW
This Court has jurisdiction pursuant to 28 U.S.C. § 1291 to review the final
decision of the district court. 3 It reviews a district court’s grant of summary
judgment de novo. Byars v. Coca-Cola Co., 517 F.3d 1256, 1263 (11th Cir. 2008).
Summary judgment is appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The Court considers all evidence and inferences reasonably drawn
therefrom “in the light most favorable to the nonmoving party.” McCullum v.
Orlando Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1141 (11th Cir. 2014).
Because Salmeron-Salmeron appeals the decision of USCIS under the APA,
the Court reviews whether the agency’s decision was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A); Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 41 (1983). This is a deferential standard; a court does not
substitute its own judgment for that of the agency, but assesses whether the agency
arrived at a rational conclusion connected to the evidence. State Farm, 463 U.S. at
43. Further, the Court employs a harmless-error analysis when “a mistake of the
administrative body is one that clearly had no bearing on the procedure used or the
3
All references to the district court’s analysis refer to the magistrate judge’s Report and
Recommendation, which was adopted in full by the district court. See Order on Report and
Recommendation; Report and Recommendation.
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substance of decision reached.” Animal Legal Def. Fund v. U.S. Dep’t of Agric.,
789 F.3d 1206, 1224 n.13 (11th Cir. 2015) (citations omitted); see also 5 U.S.C. §
706 (instructing a reviewing court to take account of “the rule of prejudicial
error”).
III. DISCUSSION
a. The adequacy of the Certified Administrative Record
It is a foundational principal of administrative law that a reviewing court
must review only the information that was before the agency at the time of its
decision in assessing whether that decision was permissible. See Camp v. Pitts, 411
U.S. 138, 142 (1973) (noting that “the focal point for judicial review should be the
administrative record already in existence, not some new record made initially in
the reviewing court.”). Here, there is clear evidence that the Government provided
the district court with an administrative record that contained numerous documents
unrelated to and post-dating the jurisdictional decision of USCIS. The Government
additionally supplemented the record with relevant documents after its initial
submission. It is thus undeniable that the Government erred in its provision of
documents to the district court. But a mistake is harmless when it “is one that
clearly had no bearing on the procedure used or the substance of decision reached.”
Animal Legal Def. Fund, 789 F.3d at 1224 n.13. It is clear that the errors as to the
administrative record are just that—harmless.
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As a logical matter, because the submission of the administrative record to
the district court did not arise until after USCIS made its jurisdictional decision,
there is no way any problem with this submission affected the decision itself.
Salmeron-Salmeron does not specify in his brief exactly what harm was caused by
the inclusion of numerous documents unrelated to the jurisdictional decision of
USCIS, but stated at oral argument that the harm was a lack of knowledge
regarding what the agency relied on in rendering its decision. The record submitted
to the district court, however, indicates that USCIS based its decision that
Salmeron-Salmeron’s UAC designation had been terminated both on his detention
in an adult facility and an issuance of a new I-213 by ICE indicating that he was
eighteen years old. Although the July 28, 2016, decision by USCIS finding a lack
of jurisdiction does not explain its reasoning, emails between a USCIS officer and
USCIS headquarters about Salmeron-Salmeron’s application, and whether USCIS
possessed jurisdiction, clarify the rationale for the decision.
Appellant does not allege that the improperly included documents or
supplementation of the administrative record affected the district court’s review.
Nonetheless, a review of the court’s decision reveals that it did not rely on any
improperly included documents in its decision. The court sees no other potential
harm or prejudice in this case caused by the inclusion of numerous documents not
before the agency at the time of its decision. See Report and Recommendation at 9
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(noting that the jurisdictional decision of USCIS was not irrational given the newly
filed I-213 indicating Salmeron-Salmeron’s age as eighteen). To be sure, including
numerous documents unrelated to the question being reviewed has the potential to
frustrate judicial review. In such a situation, a court is well-equipped to order
submission of a less voluminous and accurate record. Apparently, it saw no need to
do so here.
Similarly, the Court finds no harm caused by the Government’s
supplementation of the administrative record. Although these later-submitted
documents do contain information that explain the rationale of USCIS for not
exercising jurisdiction, the documents were provided to the district court and
Appellant’s counsel before the district court completed its review.
Accordingly, the Court holds that the improper inclusion of irrelevant
documents in the administrative record and its subsequent supplementation with
relevant documents did not prejudice Salmeron-Salmeron and any errors on the
part of the Government in this respect are harmless.
b. The decision not to exercise jurisdiction over Salmeron-
Salmeron’s asylum claim by USCIS
Salmeron-Salmeron does not allege that he was under eighteen when he filed
a petition for asylum. His age is not in dispute. Rather, he alleges that the decision
of USCIS denying jurisdiction based on his UAC status having been terminated
prior to his application is arbitrary and capricious. Specifically, Salmeron-
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Salmeron argues that USCIS failed to follow its own internal policy guidance
regarding UAC status determinations and challenges its finding that an affirmative
act had terminated his UAC status.
As indicated, the Court will uphold an agency’s action unless it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). This standard requires the Court to assess whether the agency
demonstrated a “rational connection between the facts found and the choice made,”
State Farm, 463 U.S. at 43 (citations omitted), and whether an agency considered
all the relevant factors, Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of
Eng’rs, 833 F.3d 1274, 1285 (11th Cir. 2016). In order to assess this claim, the
Court must first turn to the statute at issue.
The William Wilberforce Trafficking Victims Protection Reauthorization
Act of 2008 (“TVPRA”), Pub. L. No. 106–386, 114 Stat. 1464 (2000), was passed
in part to afford UACs additional protections. See 154 Cong. Rec. 24,565 (2008)
(statement of Sen. Feinstein, cosponsor of original Senate version). The relevant
provisions allow UACs facing removal to have an asylum claim heard by a USCIS
officer, rather than by an immigration judge, as is the norm for those in removal
proceedings. 8 U.S.C. § 1158(b)(3)(C).4 A UAC is one who:
4
8 C.F.R. § 208.2(b) (2011) provides that immigration judges shall have jurisdiction over
asylum applications once a document commencing removal proceedings has issued.
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(A) has no lawful immigration status in the United States
(B) has not attained 18 years of age; and
(C) with respect to whom—
(i) there is no parent or legal guardian in the United States; or
(ii) no parent or legal guardian in the United States is available to
provide care and physical custody.
6 U.S.C. § 279(g)(2). The TVPRA leaves it to the “Secretary of Health and Human
Services, in consultation with the Secretary of Homeland Security” to develop
procedures to be used by these agencies to identify UACs. See 8 U.S.C. §
1232(b)(4).
To avoid redundant factfinding, and the resulting waste of agency resources,
USCIS has developed procedures for identifying UACs in making jurisdictional
determinations. According to a 2013 policy memorandum, USCIS officers are to
adopt a prior UAC finding without additional inquiry unless there has been an
affirmative act by a relevant agency to terminate that finding.5 See Memorandum
from Ted Kim, USCIS Acting Chief, Asylum Division (May 28, 2013), Updated
Procedures for Determination of Initial Jurisdiction over Asylum Applications
Filed by Unaccompanied Alien Children, HQRAOI 120/12a (“2013 UAC Memo”).
What constitutes an “affirmative act” is not defined in the 2013 UAC Memo, but
5
The 2013 UAC Memo states that “in those cases in which either [Customs and Border
Protection (“CBP”)] or ICE has already made a determination that the applicant is a UAC, and
that status determination was still in place on the date the asylum application was filed, Asylum
Offices will adopt that determination without another factual inquiry. Unless there was an
affirmative act by HHS, ICE or CBP to terminate the UAC finding before the applicant filed the
initial application for asylum, Asylum Offices will adopt the previous DHS determination that
the applicant was a UAC.” 2013 UAC Memo.
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an Asylum Procedure Manual from 2016 helps elucidate what USCIS considers to
be such an act. See USCIS, Asylum Division, Affirmative Asylum Procedures
Manual (“AAPM”) (2016). In the AAPM, evidence of prior UAC determinations
includes a “Form I-213, Record of Deportable Alien.” Id. at II(B)(1)(a)(iii)(1). The
AAPM also notes that transferring an individual to an adult detention facility is an
affirmative act that terminates UAC status. Id. at II(B)(1)(a)(iii)(1) & n.9.
USCIS found that an affirmative act had occurred because ICE issued a new
I-213 indicating that Salmeron-Salmeron was eighteen years old and he was placed
in an adult detention facility. This determination is in accord with USCIS policy
and practice as laid out in the 2013 UAC Memo and AAPM. Appellant’s
arguments that this decision is arbitrary or capricious insofar as the action was out
of line with agency guidance are, accordingly, unpersuasive. The sole issue
remaining is whether the jurisdictional determination by USCIS was a rational
decision based on the evidence.6
Salmeron-Salmeron argues the actions identified by USCIS do not constitute
6
The court notes that the notion that USCIS may exercise jurisdiction over an asylum
application filed by a person facing removal who has previously been determined to be a UAC—
even in the face of evidence that the applicant may have turned eighteen—is not derived from
any statute or regulation, but from the 2013 UAC memo. The 2013 Memo effectively allows
USCIS to engage in a legal fiction, exercising jurisdiction over an asylum application filed by a
person in removal proceedings who received a favorable UAC determination in the past, even
where it knows that person no longer qualifies as a UAC. It does so despite the regulations and
the limited exception provided by the clear jurisdictional language of the statute as modified by
the TVPRA, which specifically grants USCIS “initial jurisdiction over any asylum application
filed by [a UAC].” 8 U.S.C. § 1158(b)(3)(C). Because no party challenges this framework as
impermissible under the statute or regulations, the Court does not address that issue here.
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“affirmative acts” sufficient to terminate his UAC status because: (1) an I-213 is
not an “action document” to which Salmeron-Salmeron would have been able to
object; and (2) placement in an adult detention facility is not necessarily
inconsistent with UAC status.7
While these points might give pause in another matter, here they do not
because it is undisputed that Salmeron-Salmeron was over the age of eighteen
when he was apprehended, determined to be eighteen, and then placed in adult
detention.
The issuance of a new I-213 indicating that Salmeron-Salmeron was
eighteen years of age followed by detention in an adult facility, is sufficient for
USCIS to find an affirmative act terminating UAC status prior to Salmeron-
Salmeron’s asylum application. The issuance of the new I-213 identifying
Salmeron-Salmeron as an adult indicates that the transfer to the adult facility was
not made under exceptional circumstances or without consideration of potential
UAC status. The jurisdictional decision of USCIS was accordingly rational and
based on the information before it. See State Farm, 463 U.S. at 43. Therefore, the
7
To this latter point, although the TVPRA requires UACs to be transferred to Health and
Human Service’s Office of Refugee Resettlement, it allows some flexibility in completing that
transfer. 8 U.S.C. § 1232(b)(3) (“Except in the case of exceptional circumstances, any
department or agency of the Federal Government that has an unaccompanied alien child in
custody shall transfer the custody of such child to the Secretary of Health and Human Services
not later than 72 hours after determining that such child is an unaccompanied alien child.”); see
also 6 U.S.C. § 279(g)(1) (noting that a UAC can be placed in “either a detention facility or an
alternative to such a facility”).
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decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law.
c. Salmeron-Salmeron’s Habeas Petition
As a general rule, a habeas petition presents a live case or controversy only
when a petitioner is in custody. See 28 U.S.C. § 2241(c); Spencer v. Kemna, 523
U.S. 1, 7–8 (1998); Al Najjar v. Ashcroft, 273 F.3d 1330, 1335–36 (11th Cir. 2001)
(noting that “[a] case is moot when the issues presented are no longer ‘live’ or the
parties lack a legally cognizable interest in the outcome”) (citations omitted). This
general rule does not govern when a detention has a tangible “collateral
consequence.” See Mattern v. Sec’y for Dep’t of Corr., 494 F.3d 1282, 1285 (11th
Cir. 2007).
In the immigration context, this Court has held previously that a habeas
petition filed by a subsequently deported alien who challenges not only his
detention, but also his final order of removal, may survive a mootness challenge.
See Moore v. Ashcroft, 251 F.3d 919, 922 (11th Cir. 2001) (holding that the time
bar on readmission to the United States after applicant’s removal satisfied the
injury requirement); see also Soliman v. United States ex rel. INS, 296 F.3d 1237,
1243 n.2 (11th Cir. 2002) (distinguishing Moore, and finding the case moot, on the
grounds that Soliman, unlike Moore, did not challenge his final order of removal).
Salmeron-Salmeron only challenged his detention, and not his final order of
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removal. Thus, his habeas claim is moot. Further, as Salmeron-Salmeron’s APA
claim has failed, Appellant does not otherwise argue that any meaningful relief
could be granted to him via a habeas petition.
IV. CONCLUSION
For the reasons set forth above, the Court affirms the decision of the district
court to dismiss Salmeron-Salmeron’s habeas claim as moot and to grant partial
summary judgment in favor of the Government.
AFFIRMED.
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