Antonio De Leon-Solis v. Jefferson Sessions, III ( 2018 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0504n.06
CASE NO. 18-3311
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ANTONIO DE LEON SOLIS, ) FILED
) Oct 11, 2018
Petitioner, ) DEBORAH S. HUNT, Clerk
)
v. )
)
JEFFERSON B. SESSIONS III, Attorney ) ON PETITION FOR REVIEW
General, ) FROM THE BOARD OF
) IMMIGRATION APPEALS
Respondent. )
)
Before: BATCHELDER, GIBBONS, and ROGERS, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. The petitioner, an alien and convicted felon,
seeks review of an Immigration Judge’s denial of his applications for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT), and review of a Board of
Immigration Appeals’ dismissal of his attempted appeal. Because we lack jurisdiction over part
of the petitioner’s claim and find no merit to the other part, we DENY the petition.
Antonio De Leon Solis, a 43-year-old native and citizen of Guatemala, twice entered the
United States illegally: once in 1997 and again in 2007, after returning to Guatemala in 2005.
Sometime after this second entry, Solis began a practice of identity theft, misappropriating the
identities of several unsuspecting victims. In 2017, Solis was convicted of felony forgery, in
violation of Ohio Revised Code § 2913.31(A)(3) and (1), and served six months in prison.
On July 5, 2017, the Department of Homeland Security (DHS) filed charges to remove
Solis from the United States as an inadmissible alien, pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I)
(“[A]ny alien convicted of . . . a crime involving moral turpitude . . . is inadmissible.”). On August
22, 2017, Solis admitted the factual allegations underlying the forgery convictions and conceded
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removability. On October 4, 2017, he applied for asylum, withholding of removal, and CAT
protection. That same day, the Immigration Judge (IJ) heard Solis’s testimony in support of his
application, with the assistance of a Spanish-language interpreter. During that testimony, Solis
made several implausible claims and contradictory statements, changed his testimony when
challenged, and admitted that, during an attempted illegal entry, he had lied to U.S. Border Patrol
Agents by claiming to be Mexican. Solis also conceded that he had used several other names and
identities, though he had not revealed any of them in his asylum application documents.
The IJ denied Solis’s application and ordered him removed to Guatemala. The IJ held that
Solis was ineligible for asylum because his application was untimely. The IJ then explained that,
even if the application had been timely, Solis was not entitled to asylum because he was not a
credible witness and did not present a credible claim. The IJ recognized that because Solis could
not satisfy the lower burden of proof for asylum, neither could he satisfy the more stringent
standard for withholding of removal. Finally, the IJ concluded that Solis could not meet the CAT
standard because he had not claimed to fear harm from any government actor, nor had he produced
any evidence that the government in Guatemala approves, tolerates, or “turns a blind eye” to torture
of its citizens.
Solis appealed to the Board of Immigration Appeals (BIA), which found that Solis had
forfeited any challenge to his application’s being untimely; affirmed the IJ’s conclusion that Solis
had not met his burden of proof for asylum or withholding of removal; upheld the IJ’s adverse
credibility finding (citing numerous supporting examples); and upheld the IJ’s denial of CAT
protection because Solis had not established that he would be subjected to torture “by or at the
instigation of or with the consent or acquiescence of a public official or other person acting in an
official capacity.” The BIA rejected Solis’s claim that the IJ was biased against him, finding that
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the record did not support the accusation and that Solis could not demonstrate that he suffered any
prejudice or received an unfair hearing. The BIA dismissed the appeal.
In this appeal, Solis urges this court to reverse the BIA and vacate the IJ’s decision because
he disagrees with the IJ’s factual findings concerning government-sanctioned torture and accuses
the IJ of bias. Solis alleges that the IJ mischaracterized the state of torture in Guatemala because
he did not properly apply, or even read, a State Department Country Conditions Report that Solis
claims to be quoting at length in his appellate brief, but which is not included in the record.
Because that report is not in the record, we are not at liberty to consider it here. 8 U.S.C.
§ 1252(b)(4)(A) (stating that “the court of appeals shall decide the petition only on the
administrative record on which the order of removal is based”). Solis alleges the IJ was biased
against him because he doubted Solis’s credibility, was discourteous, and bullied him.
The government responds that, because Solis is a felon convicted of a crime of moral
turpitude (forgery), we have no jurisdiction to review his final order of removal. We lack
“jurisdiction to review any final order of removal against an alien who is removable by reason of
having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C),
or (D).” 8 U.S.C. § 1252(a)(2)(C). Although the statute gives us limited jurisdiction to consider
“constitutional claims or questions of law,” we may not consider the IJ’s or BIA’s factual
determinations underlying the removal order. 8 U.S.C. § 1252(a)(2)(D).
Construing Solis’s claim of judicial bias as a constitutional due process claim, the
government concedes that we have jurisdiction but argues that the record disproves the factual
accusations and the law denies Solis any cause of action, inasmuch as he has not alleged and cannot
show that he was denied a fair trial or suffered any prejudice beyond the alleged discourtesy or
bullying. This is correct. See Gafurova v. Sessions, 712 F. App’x 540, 545 (6th Cir. 2017) (holding
that “[a]n alien must establish both error and substantial prejudice to prevail on a due process
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challenge to immigration proceedings,” and “[s]ubstantial prejudice requires a showing [that] the
alleged violation affected the outcome of the proceeding” (quotation marks, editorial marks, and
citations omitted)).
Based on our careful review of the record and consideration of governing law, we find that
we lack jurisdiction over Solis’s non-constitutional claim, and that insofar as Solis brought a
constitutional claim, it fails as a matter of both fact and law. We therefore DENY the petition for
review.
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