Beyagi Touray v. U.S. Attorney General , 546 F. App'x 907 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10655
Non-Argument Calendar
________________________
Agency No. A205-502-407
BEYAGI TOURAY,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 5, 2013)
Before HULL, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
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Beyagi Touray seeks review of the Board of Immigration Appeals’s (“BIA”)
dismissal of his appeal of the Immigration Judge’s (“IJ”) final removal order.
After review, we deny the petition for review.
I. BACKGROUND
A. Admission and Notice to Appear
On May 17, 2011, Touray, a citizen of Gambia, was admitted to the United
States on a nonimmigrant student visa to attend Brookhaven College in Dallas,
Texas. From December 2011 onward, however, Touray failed to attend
Brookhaven College, which terminated its visa sponsorship for Touray.
On June 27, 2012, Immigrations and Customs Enforcement (“ICE”) agents
encountered Touray in College Park, Georgia during a law enforcement operation
conducted with the Bureau of Alcohol, Tobacco, Firearms and Explosives. Upon
making immigration inquiries, ICE learned that Touray had violated the terms of
his student visa. The same day, Touray was served in person with a Notice to
Appear (“NTA”), charging him with removability under INA § 237(a)(1)(C)(1), 8
U.S.C. § 1227(a)(1)(C)(i), based on his failure to attend Brookhaven College. The
NTA specified that the date and time for Touray’s hearing would be set at a later
time. Touray was detained by ICE at the Lumpkin County Detention Center.
The ICE agent who interviewed Touray on June 27, 2012 noted in Touray’s
record, inter alia, that Touray admitted not attending school because he was
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waiting for money to be sent to him and to being “out of status.” Touray “claimed
to be married, but could not spell his wife’s first name, provide a phone number for
her, or provide an address where she currently resides – claiming they don’t live
together any longer.” Touray also could not remember the month in 2012 that he
was married or provide any legal document of the marriage.
B. July 30, 2012 Hearing Before the IJ
On July 26, 2012, Touray was served with notice by mail at the Lumpkin
County Detention Center of his master calendar hearing scheduled for July 30,
2012, and to be held at the detention center.
At the July 30, 2012 master calendar hearing, the IJ explained to Touray that
an admission to the charges in the NTA would be sufficient to remove Touray
from the country, but she would try to determine if there were any grounds for
relief from removal available to him, including legal marriage. The IJ informed
Touray: (1) of his right to have an attorney at his own expense; (2) of an available
list of affordable legal services providers; (3) that if he elected to represent himself,
he would be waiving his right to an attorney; and (4) he had a right to have
witnesses testify on his behalf and to present evidence, paperwork, or documents to
support his case. The IJ advised Touray that if he needed more time to get
witnesses, documents, or other evidence, she would grant him time at his request.
Touray affirmed that he understood all of his rights as explained by the IJ.
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The IJ asked Touray whether he wanted additional time to speak to an
attorney or to his family. Touray declined the IJ’s offer and stated that he was
prepared to proceed with the hearing. Among other things, Touray agreed that he
was admitted to the United States for the purpose of attending Brookhaven
College, and that after December 2011, he had not attended the last semester of
college. Based on Touray’s admissions, the IJ found that Touray was removable
by clear and convincing evidence.
The IJ then explored with Touray possible grounds for relief from removal.
Among other things, the IJ asked Touray about his marriage. Touray stated that he
had married a U.S. citizen before he was taken into custody, but that his wife had
not filed the necessary documents to allow him to remain in the country. Although
Touray said that he lived with his wife, he did not know his wife’s telephone
number or home address. In response to the IJ’s questions, Touray explained that
he knew the street name of his home, but that he was not good with numbers and
that he stored this type of information on his phone. The IJ found that Touray’s
marriage “ha[d] all the appearances of a fraudulent marriage,” and declined to
grant him voluntary departure “as a matter of discretion.” After confirming that
none of Touray’s immediate family was a U.S. citizen and that Touray did not fear
persecution or torture in Gambia, the IJ ordered Touray removed to Gambia, and
reserved Touray’s right to appeal the decision.
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C. IJ’s Written Decision
The BIA returned the case to the IJ for a written decision. The IJ’s written
decision found Touray removable for failing to comply with the conditions of his
student visa. The IJ explained that Touray was married to a U.S. citizen, but his
wife had not filed paperwork on his behalf to allow him to remain in the United
States, and Touray was unable to “spell her name, provide her phone number, or
provide her address.” Because the government had proved by clear and convincing
evidence that Touray was removable and Touray had neither applied for, nor
showed evidence of, his eligibility for any form of relief, the IJ ordered him
removed to Gambia.
D. BIA Appeal
Touray filed a pro se appeal to the BIA. Touray’s pro se brief argued that he
was unable to attend Brookhaven College because of financial issues that were
being resolved and that he did not concede removability. He also contested the IJ’s
finding that his marriage was fraudulent, noting that he correctly spelled his wife’s
name at the hearing. Touray stated that his wife was in the process of filing an I-
130 petition on his behalf and that he was unaware that he was supposed to provide
evidence of his marriage at the removal hearing.
An attorney then filed an entry of appearance as Touray’s counsel and filed a
counseled brief. Touray’s counseled brief offered additional facts about Touray’s
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status as a student and his marriage. Touray’s counseled brief argued that Touray
“enrolled in and attended the 2011 Fall semester” at Brookhaven College, which
“ended in December 2011,” that Touray “could not attend classes in the 2012
Winter semester because he had not received the anticipated funds from his family
in Gambia,” but that he planned to attend “the 2012 Summer semester.” Touray’s
brief stated that he was married to a U.S. citizen on April 20, 2012 in Fulton
County, Georgia, and the couple lived in Austell, Georgia. Touray submitted a
copy of his marriage certificate.
Touray’s counseled brief argued that his due process rights were violated
because the IJ failed to: (1) inform him of his right to counsel; (2) give him an
opportunity to continue the hearing so that he could develop his argument for relief
from removal; (3) give him a reasonable opportunity to present evidence of the
validity of his marriage; or (4) give him the required ten-day notice prior to the
July 30 master calendar hearing.1 Touray asked the BIA to remand his case so that
he could prove the legitimacy of his marriage.
E. BIA’s Decision
In a single-judge decision, the BIA dismissed Touray’s appeal. The BIA
rejected Touray’s argument that he should be excused from complying with the
terms of his admission because he could not afford to pay for tuition and planned
1
In light of the issues raised in Touray’s counseled brief, there is no merit to the
government’s contention that Touray failed to exhaust his due process claims before the BIA.
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on re-enrolling the next semester. The BIA noted that Touray did not seek
alternative authorization to remain in the United States. The BIA found, based on
Touray’s admissions, that there was clear and convincing evidence that Touray
was removable.
The BIA further agreed with the IJ that because Touray’s wife “ha[d] not
filed a visa petition on his behalf, no relief from removal [was] available, and
because he ha[d] not demonstrated that the marriage [was] bona fide, good cause
for a continuance to pursue approval of a visa petition was not shown.”
II. DISCUSSION
A. Due Process Claims
Touray argues that his due process rights were violated because (1) he was
not given timely notice of his removal hearing, and (2) the IJ did not continue the
removal hearing to give Touray an opportunity to seek counsel and prepare for his
hearing.2
In the immigration context, “[d]ue process requires that aliens be given
notice and an opportunity to be heard in their removal proceedings.” Lapaix v.
U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010). To establish a due process
violation, an alien must show both a deprivation of liberty without due process and
2
We review only the BIA’s decision, except to the extent the BIA adopted the IJ’s
opinion. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). We review
constitutional challenges, including alleged due process violations, de novo. Lapaix v. U.S.
Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010).
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substantial prejudice. Garcia v. Att’y Gen. of U.S., 329 F.3d 1217, 1222 (11th Cir.
2003). “[T]he failure to receive relief that is purely discretionary in nature does
not amount to a deprivation of a liberty interest.” Scheerer v. U.S. Att’y Gen., 513
F.3d 1244, 1253 (11th Cir. 2008) (internal quotation marks omitted) (concluding
that adjustment of status and the decision to reopen or reconsider are discretionary
relief that cannot form the basis of due process violation). To show substantial
prejudice, the alien must show that the outcome would have differed “in the
absence of the alleged procedural deficiencies.” See Patel v. U.S. Att’y Gen., 334
F.3d 1259, 1263 (11th Cir. 2003).
Here, Touray has not shown a due process violation. The record reflects that
Touray was given notice and an opportunity to be heard. Specifically, on July 26,
Touray was served by mail with notice of his master calendar hearing to be held on
July 30 at the detention center. See INA § 239(a)(1)(G)(i), 8 U.S.C.
§ 1229(a)(1)(G)(i) (requiring an alien be given written notice, either by mail or in
person, of the “time and place” of each hearing during removal proceedings).
Touray in fact appeared at that July 30 hearing, and the IJ gave Touray an
opportunity to testify and to present evidence on his behalf during the hearing.
Touray claims that his hearing notice was not “timely” and that he did not
have sufficient opportunity to prepare for the hearing. However, at the July 30
hearing, the IJ advised Touray of his rights to counsel, to present witnesses, and to
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present evidence. The IJ expressly asked Touray whether he needed more time to
gather witnesses or evidence or to speak with his family or an attorney. Touray
declined and told the IJ he was prepared to proceed with the hearing. 3
Touray then admitted to the IJ that he had failed to attend Brookhaven
College after December 2011, which was the charged basis for his removal. In
fact, Touray has never disputed that he violated the conditions of his student visa
by failing to continue to attend Brookhaven College. Touray’s admission
constituted clear and convincing evidence of his removability.
More importantly, Touray admitted that his U.S.-citizen wife had not filed
any paperwork on his behalf that would allow him to remain in the United States.
Because Touray did not have a pending I-130 family-based visa petition, there was
no basis for the IJ to grant relief from removal on that basis. Under the
3
There is no statute or regulation requiring a hearing notice to be served ten days before
the hearing. Touray cites the Immigration Court Practice Manual, but that document does not
contain such a requirement either. Rather, the Practice Manual states that “[t]o allow the
respondent an opportunity to obtain counsel and to prepare to respond, at least ten days must
elapse between service of the Notice to Appear (Form I-862) on the respondent and the initial
master calendar hearing.” Immigration Court Practice Manual § 4.15(b). Consistent with the
Practice Manual, Touray was personally served with his NTA (Form I-862) on June 27, 2012,
more than a month before his master calendar hearing on July 30, 2012.
Here, Touray’s NTA did not contain the date, time, and location of the master calendar
hearing. The Immigration Court subsequently mailed him a notice of hearing on July 26, 2012
with that information. The Practice Manual provides that “[i]f the Notice to Appear does not
contain notice of the date, time, and location of the initial master calendar hearing, the
respondent will be mailed a notice of hearing containing this information.” Id. § 4.15(c). The
Practice Manual does not contain a time requirement on the mailing of the notice of hearing. In
any event, Touray did appear at the hearing and declined a continuance.
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circumstances, Touray has not shown that the outcome of his removal hearing
would have been different and, thus, that his due process rights were violated.
In addition, to the extent that Touray argues that the IJ’s and the BIA’s
findings that his marriage was not bona fide violated his due process rights, Touray
had not filed an application for relief from removal based on his marriage, so these
findings did not affect the outcome of his removal proceedings.
Touray further contends that the IJ should have continued the removal
hearing sua sponte so he could gather and present evidence that his marriage was
bona fide and pursue approval of an I-130 family-based visa petition. However,
the decision to grant a continuance is discretionary. See 8 C.F.R. § 1003.29(providing that an IJ “may” continue removal proceedings “for good cause
shown”); see also In re Hashmi, 24 I. & N. Dec. 785, 788-89 (BIA 2009) (stating
that the IJ has “broad discretionary authority over continuances” and outlining
factors an IJ may consider when determining whether good cause exists to
continue removal proceedings to await adjudication of a pending I-130 family-
based visa petition). As such, Touray had no constitutionally protected liberty
interest in a continuance and cannot establish a due process violation based on the
IJ’s failure to continue the removal hearing. See Scheerer, 513 F.3d at 1253.4
4
Based on Scheerer, there is also no merit to Touray’s argument that his due process
rights were violated because the IJ’s decision was reviewed by a single member of the BIA. The
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B. Removability
Touray also challenges the IJ’s finding that he is removable. 5 Touray argues
that he failed to attend classes at Brookhaven College after December 2011 only
due to his financial situation and that he intended to resume attending classes in the
summer of 2012.
An alien who “is a bona fide student qualified to pursue a full course of
study and who seeks to enter the United States temporarily and solely for the
purpose of pursuing such a course of study” may be admitted as a nonimmigrant.
INA § 101(a)(15)(F)(i), 8 U.S.C. § 1101(a)(15)(F)(i); 8 C.F.R. § 214.2(f)(1). A
nonimmigrant student’s status continues as long as the student “is pursuing a full
course of study at an [approved] educational institution” and “is considered to be
maintaining status if he or she is making normal progress toward completing a
course of study.” 8 C.F.R. § 214.2(f)(5)(i). An alien who was admitted as a
nonimmigrant is removable if he fails “to maintain the nonimmigrant status in
which the alien was admitted . . . or to comply with the conditions of any such
status . . . .” INA § 237(a)(1)(C)(i), 8 U.S.C. § 1227(a)(1)(C)(1).
decision to assign a case to a three-member panel is discretionary. See 8 C.F.R. § 1003.1(e)(6)
(providing that cases “may” be assigned to a three-member panel under certain circumstances).
5
We review findings of fact, including findings of removability, for substantial evidence.
Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004).
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Here, substantial evidence supports the IJ’s finding that Touray was
removable under INA § 237(a)(1)(C)(i), 8 U.S.C. § 1227(a)(1)(C)(1), for failing to
maintain the conditions of his nonimmigrant student status. It is undisputed that
Touray was admitted to the United States on a student visa to attend Brookhaven
College and that in December 2011 Touray stopped attending Brookhaven College.
In other words, Touray was not “pursuing a full course of study,” as required to
maintain his status as a nonimmigrant student. See 8 C.F.R. § 214.2(f)(5).
Although Touray offers his inability to pay tuition as an excuse for his
noncompliance, his financial situation does not alter his immigration status or the
conditions of that status. Further, there is no evidence that Touray obtained
alternative authorization to remain in the United States.
In sum, Touray failed to show any due process violations, and substantial
evidence supports the finding that Touray is removable.
PETITION DENIED.
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