Neville Ratego v. Loretta Lynch , 639 F. App'x 250 ( 2016 )

Case: 15-60090 Document: 00513481607 Page: 1 Date Filed: 04/26/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-60090
Fifth Circuit
FILED
Summary Calendar April 26, 2016
Lyle W. Cayce
NEVILLE OCHIENG RATEGO, Clerk
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A203 300 412
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Neville Ochieng Ratego, a native and citizen of Kenya, petitions for
review of the decision of the Board of Immigration Appeals (BIA) upholding
the denial by the immigration judge (IJ) of his application for adjustment of
status under 8 U.S.C. § 1255. He argues that the BIA erred in finding that he
made a false claim to citizenship, which rendered him inadmissible and
ineligible for adjustment of status, and that the IJ denied him due process.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-60090 Document: 00513481607 Page: 2 Date Filed: 04/26/2016
No. 15-60090
This court reviews the decision of the BIA and will consider the IJ’s
decision only to the extent it influenced the BIA. Shaikh v. Holder, 588 F.3d
861, 863 (5th Cir. 2009). The BIA’s legal conclusions are reviewed de novo, and
its findings of fact are reviewed under the substantial evidence test. Efe v.
Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).
Ratego raises the legal argument that lying on an application for private
sector employment, as opposed to a government citizenship verification form,
does not amount to falsely representing himself “to be a citizen of the United
States for any purpose or benefit under this chapter (including section 1324a
of this title) or any other Federal or State law.” 8 U.S.C. § 1182(a)(6)(C)(ii)(I)
(making aliens who do so inadmissible). But we have already rejected this
argument, finding reasonable under Chevron deference the government’s view
that private sector employment is a “purpose or benefit” because the referenced
statute (8 U.S.C. § 1324a) governs unlawful employment by private entities.
Theodros v. Gonzales, 490 F.3d 396, 402 (5th Cir. 2007). Ratego’s attempts to
distinguish Theodros are unconvincing.
Ratego’s due process argument contends that the IJ failed to adequately
explain his burden of proof and the hearing procedure. Even assuming those
inadequacies, Ratego cannot show that any due process violation resulted in
substantial prejudice. See Toscano-Gil v. Trominski, 210 F.3d 470, 473 (5th
Cir. 2000) (explaining that alien must establish that the due process violation
resulted in substantial prejudice). To establish substantial prejudice, Ratego
“must make a prima facie showing that he was eligible for [adjustment of
status] and that he could have made a strong showing in support of his
application.” Anwar v. I.N.S., 116 F.3d 140, 144 (5th Cir. 1997). Ratego does
not address these criteria, instead asserting in conclusory fashion that he
suffered substantial prejudice. By not properly briefing the issue of substantial
2
Case: 15-60090 Document: 00513481607 Page: 3 Date Filed: 04/26/2016
No. 15-60090
prejudice, Ratego has forfeited it. United States v. Williams, 400 F.3d 277, 283
(5th Cir. 2005) (holding that an issue is inadequately briefed where party cites
to relevant case law, but fails to “argue explicitly how the standards set forth
in the caselaw apply here”). And even if he had properly briefed the issue,
Ratego could not make a strong showing of his entitlement to relief given the
IJ’s adverse credibility determination, the finding that Ratego had engaged in
employment fraud, and the determination that Ratego was not entitled
discretionary relief. Absent a showing of substantial prejudice, Ratego’s due
process claim fails.
The petition for review is DENIED.
3