Antonio Osorio Diaz v. William Barr, U. S. Atty Ge ( 2020 )

Case: 20-60435 Document: 00515674918 Page: 1 Date Filed: 12/15/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
December 15, 2020
No. 20-60435 Lyle W. Cayce
Summary Calendar Clerk
Antonio Osorio Diaz, also known as Antonio Osorio Diaz,
Petitioner,
versus
William P. Barr, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A219 074 544
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Antonio Osorio Diaz, a native and citizen of Mexico, seeks review of
a Final Administrative Removal Order (“FARO”) issued pursuant to 8
U.S.C. § 1228(b), which “authorizes the Attorney General to expedite
removal of an alien who is not a lawful permanent resident and who is
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-60435 Document: 00515674918 Page: 2 Date Filed: 12/15/2020
No. 20-60435
deportable for committing an aggravated felony.” Valdiviez-Hernandez v.
Holder, 739 F.3d 184, 187 (5th Cir. 2013). Osorio Diaz does not dispute that
he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) on account of his
conviction under 18 U.S.C. § 922(g)(5), an aggravated felony. See 8 U.S.C. §
1101(a)(43)(E)(ii). He argues, however, that the agency violated statutes and
regulations by failing to serve his counsel with the Notice of Intent to Issue a
Final Administrative Removal Order (“NOI”) and by failing to timely serve
his counsel with the FARO.
To begin, the Attorney General (“AG”) contends that Osorio Diaz’s
petition for review should be dismissed for lack of jurisdiction. And to be
sure, we generally have jurisdiction to review “a final order of removal,” 8
U.S.C. § 1252(a), though we lack jurisdiction to review removal orders
against aliens who have been convicted of an aggravated felony. 8 U.S.C.
§ 1252(a)(2)(C).
An exception appears in § 1252(a)(2)(D), which provides that
“[n]othing in subparagraph (B) or (C) . . . shall be construed as precluding
review of constitutional claims or questions of law.” § 1252(a)(2)(D).
Because Osorio Diaz’s claims are based on established facts reflected in the
record provided by the agency and the attorney correspondence that this
court permitted Osorio Diaz to file, we conclude that Osorio Diaz is raising
“questions of law” within the meaning of § 1252(a)(2)(D). See Guerrero-
Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020) (concluding that the phrase
“question of law” includes “the application of a legal standard to undisputed
or established facts”). We therefore have jurisdiction to review his claims.
As to the substance of these claims, the AG contends that Osorio
Diaz’s purported counsel, Luke H. Abrusley, was not authorized to appear
as his representative during the administrative removal proceedings, and
hence, the agency’s alleged failure to serve counsel did not violate the law.
2
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No. 20-60435
As a threshold matter, Osorio Diaz responds that this argument should be
estopped, because the agency affirmatively misrepresented its requirements. 1
But Osorio Diaz falls short of establishing an estoppel claim, as he has failed
to show the agency intended for any claimed misconduct to be acted upon,
nor has he demonstrated how he reasonably relied on such conduct to his
substantial injury. See Moosa v. INS, 171 F.3d 994, 1004 (5th Cir. 1999)
(“Valid assertions of equitable estoppel against the Government are rare
indeed.”).
Further, “[t]o prove that administrative proceedings should be
invalidated for violation of regulations, an alien must show substantial
prejudice.” Molina v. Sewell, 983 F.2d 676, 678 (5th Cir. 1993). Osorio Diaz
disputes whether a showing of substantial prejudice is necessary to obtain
relief in this case. But this argument is to no avail, as our caselaw makes clear
that such a showing is necessary. See id. (citing Ka Fung Chan v. INS, 634
F.2d 248, 258 (5th Cir. Jan. 1981)). And, Osorio Diaz has not made the
required showing of substantial prejudice. We therefore need not decide
whether there were any violations with respect to the alleged failure to serve
Abrusley with the NOI and the alleged delay in serving Abrusley with the
FARO.
The petition for review is DENIED.
1
Typically, we do not look outside the administrative record in reviewing an
agency’s decision. Goonsuwan v. Ashcroft, 252 F.3d 383, 390 n.15 (5th Cir. 2001) (“It is a
bedrock principle of judicial review that a court reviewing an agency decision should not go
outside of the administrative record.”). We conditionally granted Osorio Diaz’s motion
seeking leave to supplement the record, and our consideration of the extra-record attorney
correspondence leaves our conclusions unaffected.
3