Sharan v. Wilkinson ( 2021 )

Case: 19-60774 Document: 00515774102 Page: 1 Date Filed: 03/10/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-60774 March 10, 2021
Summary Calendar Lyle W. Cayce
Clerk
Hamzeh Hani Marei Sharan,
Petitioner,
versus
Robert M. Wilkinson, Acting U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A060 834 204
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Hamzeh Hani Marei Sharan, a native and citizen of Jordan, seeks
review of the denial of his application for a waiver of inadmissibility under 8
U.S.C. § 1182(h). We DENY his petition.
*
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opinion should not be published and is not precedent except under the limited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.
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No. 19-60774
I
Sharan entered the United States as a lawful permanent resident in
November 2009. He attended school in Jordan from December 2009 to
March 2013, but he traveled to the United States during school breaks. In
March 2013, he returned to the United States full-time and enrolled in school
in Houston, Texas. On December 26, 2016, Sharan was arrested in Fort Bend
County, Texas for misdemeanor possession of marijuana. He was convicted
of that offense on September 12, 2017.
On November 30, 2018, the Department of Homeland Security
served Sharan with a Notice to Appear for removal proceedings, alleging that
the drug conviction rendered him inadmissible under 8 U.S.C.
§ 1182(a)(2)(A)(i)(II). The Immigration Judge found Sharan to be
inadmissible as charged. Sharan then applied for a waiver of inadmissibility. 1
The IJ denied the application on the ground that Sharan failed to establish 7
years of continuous residence in the United States, as required to be eligible
for the waiver. The Board of Immigration Appeals affirmed. Sharan timely
petitioned for our review.
II
Sharan argues that: (1) the BIA applied the wrong standard to
determine when he stopped accruing continuous residence in the United
States; (2) the BIA erred by concluding that he had not resided continuously
in the United States for 7 years; (3) the BIA abused its discretion by refusing
to continue the removal proceedings; (4) the IJ erred by requiring evidence
that was unavailable; and (5) the IJ violated his due process rights by
1
Sharan also applied for, and was denied, cancellation of removal under 8 U.S.C.
§ 1229b. He does not challenge that denial in his petition. See Soadjede v. Ashcroft, 324 F.3d
830, 833 (5th Cir. 2003) (issues not raised in the petition for review are abandoned).
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preventing his father from testifying, interrupting his own testimony, and
making biased remarks during the hearing.
While we lack jurisdiction to review the BIA’s discretionary decision
to waive inadmissibility, we retain jurisdiction over constitutional claims and
questions of law. 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D). Here, the BIA
concluded only that Sharan was ineligible for relief and never reached the
discretionary determination. Eligibility to seek a waiver is a legal question.
Martinez v. Mukasey, 519 F.3d 532, 541 (5th Cir. 2008); see also Guerrero-
Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020) (holding that the application
of a legal standard to established facts is a question of law reviewable under
§ 1252(a)(2)(D)). And, of course, Sharan’s due process claims present a
constitutional question. Further, § 1252(a)(2)(B)(i) does not bar us from
reviewing the BIA’s decision to deny a motion for a continuance. Ahmed v.
Gonzales, 447 F.3d 433, 437 (5th Cir. 2006); but see Ogunfuye v. Holder, 610
F.3d 303, 307 (5th Cir. 2010) (holding that § 1252(a)(2)(C) bars review of the
decision to deny a continuance). We therefore have jurisdiction to review all
of the issues raised in Sharan’s petition to the extent they were properly
exhausted before the BIA. 8 U.S.C. § 1252(d)(1); Omari v. Holder, 562 F.3d
314, 318–19 (5th Cir. 2009) (discussing jurisdictional nature of exhaustion).
We review Sharan’s legal and constitutional claims de novo. Sattani
v. Holder, 749 F.3d 368, 370 (5th Cir. 2014). We review the decision to deny
a continuance for abuse of discretion. Masih v. Mukasey, 536 F.3d 370, 373
(5th Cir. 2008). “To the extent the BIA’s decision is affected by the IJ’s
ruling, we review both decisions.” Sattani, 749 F.3d at 370.
A
The BIA determined that Sharan’s continuous residence ended on
November 30, 2018, the date he was served with the Notice to Appear for
removal proceedings. Citing Pereira v. Sessions, 138 S. Ct. 2105 (2018),
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Sharan contends that because his Notice to Appear did not designate a time
and place for his initial hearing, removal proceedings were never initiated for
purposes of 8 U.S.C. § 1182(h). Therefore, he argues, he accrued continuous
residence until he was removed from the United States on October 22, 2019.
But under our precedent, a subsequent notice of hearing setting forth the
hearing’s time and place cures any defects in the original notice to appear.
Yanez-Pena v. Barr, 952 F.3d 239, 241, 246 (5th Cir. 2020). At most, then,
Sharan accrued continuous residence until December 10, 2018, when he
received a Notice of Hearing with the time and place.
To be sure, it’s not clear that Pereira controls here. Pereira concerned
the accrual of continuous residence for purposes of cancellation of removal,
which is governed by a different statute than waiver of inadmissibility. The
cancellation of removal statute specifically provides that the period of
continuous residence ends “when the alien is served a notice to appear,” 8
U.S.C. § 1229b(d)(1)(A), while the waiver of inadmissibility statute speaks
of “the date of initiation of proceedings,” 8 U.S.C. § 1182(h). We need not
decide whether Pereira applies to a waiver of inadmissibility because, as
discussed below, Sharan cannot establish 7 years of continuous residence,
even if he accrued time until receiving the Notice of Hearing.
B
The IJ found that Sharan failed to present evidence that he was a
resident of the United States at any point before enrolling in school in
Houston. From his enrollment on March 1, 2013, until his receipt of the
Notice of Hearing on December 10, 2018, Sharan accrued only 5 years, 9
months, and 9 days of continuous residence—over a year short of the
required 7 years to be eligible for a waiver. To succeed, Sharan needs to show
that some of the time he spent traveling between Jordan and the United
States for school from 2009 to 2013 counts toward his continuous residence.
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Sharan argues that the IJ failed to recognize that his travel to Jordan
was temporary and did not break his period of continuous residence in the
United States. He thus contends that the IJ should have analyzed the nature
and length of his departures from the United States to determine whether he
was accruing continuous residence from November 2009 to March 2013. As
the BIA recognized, this argument rests on a faulty understanding of the IJ’s
findings. The IJ found that Sharan “did not provide evidence or cite any
addresses at which he resided prior to March 2013.” The IJ never considered
whether Sharan was temporarily attending school in Jordan because that
question presupposed that Sharan established residence in the United States
in the first place. Sharan does direct us to any evidence in the record to refute
or undermine the IJ’s findings that he failed to present an address in the
United States for the period from November 2009 to March 2013.
C
Sharan challenges the BIA’s denial of his request for a continuance.
Removal proceedings may be continued for good cause. Masih, 536 F.3d at
373. The key inquiry is the applicant’s ultimate likelihood of success. See Wu
v. Holder, 571 F.3d 467, 470 (5th Cir. 2009); Matter of L-A-B-R-, 27 I. & N.
Dec. 405, 411–13 (A.G. 2018). Here, Sharan requested a continuance on the
ground that he was still accruing continuous residence under Pereira and
would reach the required 7 years in March 2020, less than 8 months after his
brief was due. Assuming Pereira applies, Sharan stopped accruing continuous
residence when he was served with the December 10, 2018 Notice of
Hearing. See Yanez-Pena, 952 F.3d at 246. Because Sharan could not have
prevailed on his Pereira arguments, the BIA did not abuse its discretion in
denying a continuance. See Wu, 571 F.3d at 469–70; Masih, 536 F.3d at 373.
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D
Sharan argues that the IJ erred by requiring him to produce
unavailable evidence of his residence in the United States prior to March
2013. Sharan never raised this issue with the BIA. Because he failed to
exhaust this argument, we lack jurisdiction to consider it. See 8 U.S.C.
§ 1252(d)(1); Omari, 562 F.3d at 318–19.
E
Lastly, Sharan contends that the IJ violated his due process rights by
preventing Sharan’s father from testifying, repeatedly interrupting Sharan’s
testimony and his counsel’s argument, and making a “highly antagonistic
remark.” Sharan cites nothing in the record to show that the IJ barred his
father from testifying. To the contrary, the IJ expressed his desire to hear
from Sharan’s father. Moreover, the complained-of interruptions were
within the IJ’s authority to regulate the hearing and develop the record. See
Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 n.1 (5th Cir. 1986). The
frequency of the IJ’s questions—predominantly interjected to clarify
Sharan’s testimony—do not establish a due process violation where the IJ
did not prevent Sharan’s counsel from pursuing any proper line of
questioning or presenting relevant evidence. Id. at 1052–53; Wang v. Holder,
569 F.3d 531, 541 (5th Cir. 2009). Finally, though inappropriate, the IJ’s
single comment at the end of the hearing disapproving of Sharan’s parents’
conduct toward Sharan’s sister did not evince “such a degree of hostility that
fair judgment was impossible.” See Wang, 569 F.3d at 541. Sharan has not
established a due process violation. See id. at 540–41.
III
The petition for review is DENIED.
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