                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      November 18, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
LUIS CARLOS RAMIREZ,

             Petitioner,

v.                                                         No. 13-9610
                                                       (Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,

             Respondent.


                            ORDER AND JUDGMENT*


Before KELLY, ANDERSON, and TYMKOVICH, Circuit Judges.


      Petitioner Luis Carlos Ramirez seeks review of a decision by the Board of

Immigration Appeals (BIA) upholding the denial of a motion to reopen his removal

proceedings. Considering the BIA’s decision under an abuse-of-discretion standard,

see Thongphilack v. Gonzales, 506 F.3d 1207, 1209 (10th Cir. 2007), we deny his

petition for review for the reasons stated below.


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Petitioner does not contest that he is removable. Instead, his petition for

review relates to two forms of relief from removal he sought administratively:

(1) cancellation of removal under the Nicaraguan Adjustment and Central American

Relief Act of 1997 (NACARA),1 and (2) humanitarian asylum, both derivatively

through his father. While petitioner’s pursuit of these remedial avenues overlapped

somewhat in time, they are substantively distinct and focus on different procedural

events. We therefore set out a general background and separate timelines, followed

by legal analysis of the dispositive issues raised, as to each form of relief. We then

conclude by addressing certain broader objections raised in the petition for review.

                          I. GENERAL BACKGROUND

      Petitioner’s father came to the United States from Guatemala in 1989,

followed by his wife in 1991, and their children in 1995. He filed an asylum

application in 1991, and added petitioner as a derivative applicant in June 2001. It is

not clear what happened to this initial asylum application. In 2006, he pursued an

updated application, again with petitioner as a derivative applicant. Petitioner and

his father also applied for NACARA relief around the same time. After these

applications were denied administratively, petitioner’s father sought a hearing before

an immigration judge (IJ) on his request for asylum (as well as withholding of
1
       NACARA allows qualified aliens from certain countries, including Guatemala,
to apply for “special rule” cancellation from removal, which affords relief under the
more lenient standards that predated passage of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996. See De Leon v. Holder, 761 F.3d 336, 338
(4th Cir. 2014); Argueta v. Holder, 617 F.3d 109, 111 (2d Cir. 2010).


                                          -2-
removal and relief under the Convention Against Torture). The IJ denied relief in a

decision upheld by the BIA on the grounds that petitioner’s father had failed to

demonstrate either past persecution or a reasonable fear of future persecution. A

petition for review of that decision was dismissed by this court after the BIA granted

a motion to reopen to allow petitioner’s family to reapply for NACARA relief.

      The United States Citizenship and Immigration Services (USCIS) granted

NACARA relief to petitioner’s father and, derivatively, to petitioner’s mother and

sister, but not to petitioner and his brother because they were over twenty-one and

thus had aged-out of eligibility as child derivative applicants. Thereafter, petitioner’s

proceedings were recalendared and the IJ confirmed his ineligibility under

NACARA. Petitioner did not appeal that decision to the BIA.

      In July 2012, petitioner filed a motion to reopen with the IJ seeking relief as a

derivative applicant on a humanitarian asylum application allegedly pending before

the USCIS from his father. The IJ denied the motion for deficiencies relating to the

alleged humanitarian asylum application, and also recounted the previous denial of

NACARA relief. The BIA upheld the denial of the motion to reopen, and further

held that petitioner had been properly found ineligible for NACARA relief. The

petition on review here timely challenged the BIA’s decision.




                                          -3-
                               II. NACARA RELIEF

      Because petitioner complains about agency delay in handling his NACARA

application, the timing of certain events will be more important than is usually the

case. The relevant timeline is as follows:

      10/25/2005 Date of initial NACARA application, administratively denied
                 in 2006, after which petitioner pursues other relief before IJ.

      8/05/2008     USCIS adopts new NACARA policy favorable to petitioner’s
                    father, whose 1991 asylum application now qualifies him as
                    timely registered for NACARA relief. 2

      6-7/2010      Petitioner’s family files (and later supplements) motion to reopen
                    with BIA in order to resume pursuit of NACARA relief.

      10/14/2010 BIA grants motion and remands to IJ to determine whether
                 to enter administrative closure order enabling USCIS to consider
                 NACARA relief.

      12/15/2010 Petitioner turns 21 (aging out of eligibility for derivative relief
                 on father’s NACARA application).

      1/21/2011     IJ enters administrative closure order.

      1/9-10/2012 USCIS grants NACARA relief to petitioner’s father and,
                  derivatively, to his mother and sister, but not to petitioner, who
                  has aged-out of eligibility.

      6/18/2012     IJ denies petitioner NACARA relief based on his age.

      8/14/2012     IJ denies petitioner’s motion to reopen seeking to pursue
                    derivative asylum, and in course of decision reiterates basis
                    for previous denial of NACARA relief.
2
       USCIS altered its policy to allow the filing of an asylum application to satisfy
the separate registration requirement for NACARA relief. See Admin. R. at 181-85.
Under this change, petitioner’s father was ultimately found to have timely registered
in 1991, even though he did not file a NACARA application until 2005.


                                          -4-
      11/17/2013 On appeal from denial of motion to reopen, BIA upholds denial
                 of NACARA relief based on petitioner’s age.

      12/06/2013     Petition for review is filed with Tenth Circuit.

      Under 8 U.S.C. § 1252(a)(2)(B) and (D), the denial of NACARA relief

(cancellation of removal) is not subject to judicial review except for constitutional

claims or questions of law arising from the denial. De Leon, 761 F.3d at 339;

Argueta, 617 F.3d at 111-12. Petitioner asserts three constitutional claims in this

regard: (1) his right to procedural due process, particularly the right to be heard at a

meaningful time, was violated by agency delay causing him to age-out of derivative

eligibility on his father’s NACARA application; (2) even if relief for agency delay is

not available on a procedural due process theory, the same delay is remediable as a

violation of substantive due process; and (3) his equal protection rights were violated

when he was held ineligible for NACARA relief as a derivative child while, by

operation of the Child Status Protection Act (CSPA), similarly aged-out applicants

for other relief, such as asylum, would not be treated as ineligible.3 To these claims,

petitioner adds a non-constitutional objection that the agency allegedly breached the

settlement agreement in American Baptist Churches v. Thornburgh, 760 F. Supp. 796


3
        CSPA grants specific types of applicants a protective age tied to the date of
filing rather than the date an application is granted. But CSPA “makes no reference
to the wholly separate NACARA provisions, even though NACARA was enacted
before the CSPA was enacted.” Tista v. Holder, 722 F.3d 1122, 1126 (9th Cir. 2013)
(“agree[ing] with the BIA . . . that there is no basis for declaring that NACARA
applicants . . . come within the provisions of the CSPA”).


                                          -5-
(N.D. Cal. 1991), as enforced by Chaly-Garcia v. United States, 508 F.3d 1201,

1203-05 (9th Cir. 2007), by not handling the NACARA application in a more timely

manner. This objection was not raised to or decided by the BIA, however, and we

lack jurisdiction to consider it. See Rivera-Jimenez v. INS, 214 F.3d 1213, 1215 n.3

(10th Cir. 2000) (per curiam).

      We do have jurisdiction over petitioner’s constitutional claims. His equal

protection challenge to the exclusion of NACARA applicants from the beneficial

operation of CSPA falls squarely within the general rule that constitutional claims,

particularly those challenging the constitutionality of the immigration laws, need not

be exhausted, because the BIA lacks authority to review them. See Vicente-Elias v.

Mukasey, 532 F.3d 1086, 1094 (10th Cir. 2008). In contrast, his due process claims

based on agency delay arguably implicate the exception from this general rule for

“procedural errors or defects that the BIA could have remedied [and which are later]

frame[d] . . . in terms of constitutional due process on judicial review.” Id.; see also

Rivera-Jimenez, 214 F.3d at 1215 n.3 (holding estoppel argument based on agency

delay barred for failure to exhaust). But petitioner did complain to the BIA, albeit in

fairly perfunctory fashion, that agency delay caused him to age out of eligibility for

NACARA relief. We therefore reach these constitutional objections.

      Petitioner’s procedural due process claim seeks to estop the government from

enforcing the NACARA scheme as set up by Congress. A party asserting estoppel

against the government “must show that the government has engaged in ‘affirmative


                                          -6-
misconduct,’” and this showing must be “particularly strong” in the immigration

context. Rios v. Ziglar, 398 F.3d 1201, 1208 (10th Cir. 2005) (following Kowalczyk

v. INS, 245 F.3d 1143, 1149-50 (10th Cir. 2001)). “‘Proof only that the Government

failed to process promptly an application falls far short of establishing affirmative

misconduct.’”4 Kowalczyk, 245 F.3d at 1150 (brackets omitted) (quoting INS v.

Miranda, 459 U.S. 14, 19 (1982) (per curiam)); see also In re DePaolo, 45 F.3d 373,

377 (10th Cir. 1995) (“Mere negligence, delay, inaction, or failure to follow agency

guidelines does not constitute affirmative misconduct.”) (internal quotation marks

omitted). Petitioner has not made such a showing here. His 2005 NACARA

application was administratively resolved in 2006 (he complains in passing about the

merits of that resolution, but any objection in that regard is not before us because he

did not pursue the matter before an IJ and the BIA). When the governing policy

changed favorably in 2008, petitioner let twenty months go by before filing a motion

to reopen with the BIA to pursue a renewed NACARA application. The BIA ruled

on the motion four months later, remanding to the IJ, who entered an administrative

closure order just two months after that to allow USCIS consideration of the




4
       Petitioner inaptly frames the issue as whether the delay was “reasonable,”
citing cases involving the Administrative Procedures Act. These authorities are
inapposite here, where “our review is conducted under the INA [Immigration and
Nationality Act] and not under the Administrative Procedure Act (“APA”). Unlike
the INA, the APA includes a judicially enforceable duty to proceed within a
reasonable time.” Kowalczyk, 245 F.3d at 1150 n.5 (emphasis added).


                                          -7-
NACARA application. But given petitioner’s delay in initiating this process, he had

already aged out before the matter even got to the USCIS.

      The USCIS then took twelve months to resolve the application. Consistent

with the authorities discussed above, administrative processing time does not

demonstrate affirmative misconduct “[i]n the absence of a showing that the delay . . .

[1] was deliberate or [2] resulted in identifiable prejudice to the petitioner’s case.”

Kowalczyk, 245 F.3d at 1150. Neither has been shown here. Petitioner does not

claim (nor could he on our record) that the government deliberately set out to

sabotage his NACARA application while granting relief to his father, mother, and

sister. He does make a prejudice argument, contending that the administrative delays

caused him to age-out of derivative NACARA eligibility, but that is demonstrably

not so. After the favorable policy change, he had twenty-eight months before he

aged-out. The entire time spent by the BIA, IJ, and USCIS from the filing of the

motion to reopen to the ruling on the NACARA application was just nineteen

months. Given the decisive role played by petitioner’s twenty-month delay in

initiating the process for the renewed NACARA application, he can make no claim of

actionable prejudice by the government here. We therefore reject the procedural due

process challenge to the denial of NACARA relief.

      To succeed on his substantive due process claim, petitioner must show

government misconduct so egregious and outrageous as to shock the conscience of

federal judges. Hernandez v. Ridley, 734 F.3d 1254, 1261 (10th Cir. 2013). From


                                           -8-
what we have already said in regard to the affirmative-misconduct requirement of

petitioner’s procedural due process claim, it should be evident that his substantive

due process claim based on the same conduct must fail. Indeed, this court has

specifically acknowledged that government action causing delay cannot “‘shock the

conscience’ without even rising to the level of affirmative misconduct.” United

States v. Batie, 433 F.3d 1287, 1293 (10th Cir. 2006).

      As for equal protection, petitioner complains that CSPA improperly treats

applicants for NACARA relief less favorably than applicants for certain other forms

of relief, such as asylum, to whom it grants a protective age-status as of the date of

filing. The same constitutional objection was rejected in Tista v. Holder, 722 F.3d

1122 (9th Cir. 2013), with which we agree on all material points. First, given the

plenary authority Congress has over immigration matters, statutory classifications

distinguishing between groups of aliens should not be disturbed by the courts unless

they are wholly irrational. Id. at 1126-27; see also Midi v. Holder, 566 F.3d 132, 137

(4th Cir. 2009) (making same point in connection with similar constitutional

challenge to CSPA by aged-out applicant for relief under Haitian Refugee

Immigration Fairness Act); Lockett v. INS, 245 F.3d 1126, 1129 (10th Cir. 2001)

(noting “[e]qual protection challenges in immigration matters warrant very

deferential review”).

      Second, children (like petitioner) of aliens who seek NACARA relief are

clearly distinguishable from children of aliens who seek asylum relief: “an applicant


                                          -9-
for NACARA relief need only show that he came from one or more of at least

seventeen countries, and need not demonstrate”—as an asylum applicant must—“that

he was, or may be, persecuted in that country.” Tista, 722 F.3d at 1127 (footnote

omitted). This clear-cut distinction “leaves [petitioner] with the obligation of

showing that Congress had no possible rational basis for treating those groups

differently.” Id.

      Third, Congress differentially extends many immigration benefits properly

“‘to advance security, foreign relations, humanitarian, or diplomatic goals.’” Id. at

1128 (quoting Midi, 566 F.3d at 137). Here, a number of rational bases for the

differential treatment of derivative asylum applicants and derivative NACARA

applicants are evident, including the fact that “Congress could well have seen much

more danger and need for the children of those [seeking asylum,] who had actually

suffered [or reasonably feared future] persecution.”5 Id. (also suggesting Congress

could have seen institutional delay as more of a problem needing correction in the

comparatively complicated asylum process, or could simply have restricted the reach

of CSPA to limit the influx of aliens through means other than asylum). “Congress

could have believed any or all of these premises (and, no doubt, others) without being

‘wholly irrational.’” Id. We therefore deny petitioner’s equal protection challenge.



5
       Petitioner contends this rationale is inapposite here, because, he insists, his
father did in fact suffer persecution in Guatemala. But the IJ and BIA found
otherwise in an asylum determination not subject to review here.


                                          - 10 -
                         III. HUMANITARIAN ASYLUM

       Petitioner challenges the denial of his derivative humanitarian asylum claim in

part on grounds of delay. Once again, it is useful to set out a timeline of relevant

events. While there is some overlap with its NACARA counterpart, there are enough

distinct events to warrant a separate asylum timeline, as follows:

      2/15/1989     Petitioner’s father enters the U.S.

      10/15/1991 Petitioner’s father initially applies for asylum.

      12/20/1995 Petitioner enters the U.S.

      6/14/2001     Petitioner is added to father’s asylum application.

      6/07/2006     Asylum application is updated and interview is taken;
                    asylum is ultimately denied administratively.

      7/01/2008     IJ denies asylum following hearing.

      4/01/2010     BIA dismisses appeal from denial of asylum, upholding
                    IJ’s finding of no past, or fear of future, persecution. Tenth
                    Circuit dismisses petition for review of BIA’s decision on
                    10/22/10.

      10/14/2010 BIA grants motion to reopen and remands for IJ to consider
                 whether to enter administrative closure order to permit
                 USCIS to process NACARA application.

      3/14/2012     Department of Homeland Security (DHS) moves to recalendar
                    removal proceedings after petitioner fails to secure
                    NACARA relief from USCIS.

      6/08/2012     IJ holds that BIA’s remand was solely for consideration of
                    NACARA relief, which IJ denies on age grounds; petitioner
                    does not appeal to the BIA.




                                         - 11 -
      7/09/2012     Petitioner files motion with IJ to reopen the proceedings for
                    consideration of derivative humanitarian asylum through his
                    father.

      8/14/2012     IJ denies motion to reopen.

      11/07/2013 BIA dismisses appeal, upholding denial of motion to reopen.

      12/06/2013 Petition for review is filed with Tenth Circuit.

      Petitioner raises several objections to the denial of his motion to reopen for his

asylum claim. To begin with, he challenges it on the merits. The IJ denied the

motion because (1) petitioner had not shown an asylum application was pending, and

(2) petitioner had not presented evidence indicating a new eligibility for asylum to

support reconsidering the prior denial. The BIA upheld the IJ’s decision on the same

grounds. Petitioner challenges both of these grounds (as he must to justify reversal

on the merits).

      First, he contends the operative asylum application was still pending, citing a

document reflecting the grant of legal permanent resident status to his father (based

on the NACARA application) on which his father indicated he did not want to

withdraw his asylum request due to its continuing importance for petitioner. But that

request had already been rejected administratively and then heard and denied by the

IJ and BIA.6 Second, petitioner insists he offered new evidence to show eligibility


6
       While the BIA thereafter reopened and remanded the proceedings to allow
petitioner’s family to pursue NACARA relief, on remand the IJ ruled that the BIA’s
grant of reopening was limited solely to the NACARA application. Petitioner did not
appeal that IJ decision.


                                         - 12 -
for asylum. But he only attached to his motion some emails encouraging his attorney

to pursue asylum sent by an asylum officer who evidently was not aware that an

application had already been adjudicated or that the subsequent reopening of that

proceeding had been limited to the pursuit of NACARA relief (as DHS counsel

clarified in a follow-up message).7 Admin. R. at 219-21. Petitioner did not support

his motion to reopen with the necessary evidentiary showing. See generally

Maatougui v. Holder, 738 F.3d 1230, 1239-40 (10th Cir. 2013) (discussing

evidentiary showing required to warrant reopening).8

      In sum, the denial of petitioner’s motion to reopen is not subject to reversal on

the merits. We therefore turn to his procedural objections.

      Petitioner claims that agency delay, this time in resolving his father’s asylum

application, violated his due process rights.9 As explained in connection with his

objection to NACARA delay, to prevail on this procedural due process claim he must

show identifiable prejudice resulting from affirmative misconduct. As for prejudice,

7
       Petitioner also refers us to evidence discussed in the opening brief in his prior
appeal to this court (No. 10-9524), but that evidence the BIA had already found
insufficient to support asylum the first time around.
8
       Petitioner complains that he had previously been prevented from offering
(unspecified) new evidence relating to asylum at the hearing held by the IJ on remand
from the BIA in 2010. But, as already noted, the IJ held that the remand was limited
to NACARA relief, and petitioner never appealed that ruling. Moreover, petitioner
could have proffered any new evidence he had to support asylum eligibility when he
later moved the IJ to reopen on that basis.
9
      Petitioner objected to this delay, albeit in fairly perfunctory fashion, in his
appeal to the BIA from the denial of his motion to reopen.


                                          - 13 -
he relies on a comment made by the IJ when denying the application in 2008, that,

had the matter been decided “back in 1993, ’94, ’95, before the peace accord [in

Guatemala] was signed” petitioner’s father would “probably” have “had a very good

shot at getting asylum.” Admin. R. at 29 (petitioner’s appeal brief to BIA recounting

IJ’s comment). Where, as here, agency delay does not deprive the alien of his right

to apply for relief, the mere fact that a prompt adjudication might have been more

favorable is too speculative a basis upon which to build a case of prejudice. See

Roman v. INS, 233 F.3d 1027, 1033 (7th Cir. 2000) (denying similar due process

claim for lack of prejudice and contrasting it with claim based on delay that deprived

alien of right to apply for asylum); see also Hernandez v. Holder, 579 F.3d 864, 873

(8th Cir. 2009) (denying claim for nunc pro tunc grant of asylum as speculative on

similar basis), relevant holding reaffirmed on reh’g, 606 F.3d 900, 902 (8th Cir.

2010). But even if sufficient prejudice were shown, petitioner’s due process claim

would fail for lack of affirmative misconduct. The operative delay here is limited to

the few years immediately following his father’s initial asylum application in late

1991. And the record is silent as to efforts by petitioner’s father to prompt action by

the agency during that time. Indeed, it took petitioner’s father until 2001—more than

five years after petitioner came to the U.S.—just to add petitioner as a derivative

beneficiary on the application. More importantly, as was the case with the NACARA

application, there is no evidence of any deliberate effort by the agency to sabotage

the asylum application through delay.


                                         - 14 -
       Petitioner’s substantive due process claim fails here for the same reason it

failed in connection with the NACARA application. Given the absence of any

demonstrated affirmative misconduct, we cannot say the government’s handling of

the asylum application shocks the judicial conscience so as to support relief on a

substantive due process theory.

       While petitioner devotes much discussion to his equal protection claim

regarding NACARA relief, his equal protection argument with respect to asylum

essentially begins and ends with the unsupported assertion that “as a derivative

asylum applicant from Guatemala [he] is not treated the same as other [unspecified]

derivative asylum applicants by providing for a timely asylum hearing.” Pet’r

Opening Br. at 49. Such a bald and unsubstantiated allegation is “too conclusory to

permit a proper legal analysis” and cannot support a plausible constitutional

challenge. Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1215 (10th Cir. 2009); see

also Abdulhaseeb v. Calbone, 600 F.3d 1301, 1323 (10th Cir. 2010) (holding “vague

and conclusory allegations, without any specific facts” regarding differential

treatment insufficient to support equal protection claim).

       As he did in connection with NACARA relief, petitioner appears to argue here

that the handling of his asylum application breached the settlement agreement in

American Baptist Churches, as enforced by Chaly-Garcia. Once again, however, this

argument was not made to or decided by the BIA and we therefore lack jurisdiction

to consider it.


                                         - 15 -
                         IV. ADDITIONAL OBJECTIONS

      Petitioner concludes his opening brief by arguing that the denial of his motion

to reopen was an abuse of discretion and then arguing that it was error at least not to

extend to him certain favorable forms of prosecutorial discretion. The first argument

is just a summary recapitulation of his various objections, which we have already

found to lack merit.

      The second argument faults DHS for failing to exercise its prosecutorial

discretion to forgo enforcement proceedings against him, and faults the IJ and BIA

for failing to review this non-action. Nothing about this complaint is cogent: the IJ

and BIA do not have authority over matters of prosecutorial discretion and, in any

event, this court lacks jurisdiction to review such matters under 8 U.S.C. § 1252(g).10

Young Dong Kim v. Holder, 737 F.3d 1181, 1185 (7th Cir. 2013); see also

Aguilar-Alvarez v. Holder, 528 F. App’x 862, 870-71 (10th Cir. 2013) (following

numerous authorities recognizing jurisdictional bar in § 1252(g) on judicial review of

10
      Section 1252(g) states:
      Except as provided in this section and notwithstanding any other
      provision of law . . ., no court shall have jurisdiction to hear any cause
      or claim by or on behalf of any alien arising from the decision or action
      of the Attorney General [or, now, DHS] to commence proceedings,
      adjudicate cases, or execute removal orders against any alien under this
      chapter.

The Supreme Court has made it clear that this provision “was directed against a
particular evil: attempts to impose judicial constraints upon prosecutorial discretion”
in immigration matters. Reno v. American-Arab Anti-Discrimination Comm.,
525 U.S. 471, 485 n.9 (1999).


                                         - 16 -
prosecutorial discretion in immigration cases). We note that petitioner’s conclusory

references to due process and equal protection, tacitly invoking the special provision

for judicial review of constitutional issues in § 1252(a)(2)(D), have no jurisdictional

import here. Section 1252(a)(2)(D) exempts constitutional claims or issues of law

only from the jurisdiction-stripping provisions “in subparagraph (B) or (C), or in any

other provision of this chapter (other than this section),” id. (emphasis added), so

“the remaining limits on judicial review in ‘this section’—i.e., § 1252—still apply,”

Hamilton v. Gonzales, 485 F.3d 564, 567 (10th Cir. 2007) (holding § 1252(a)(2)(D)

inapplicable to provision in § 1252(a)(1) limiting judicial review to final orders of

removal). Thus, “[b]y its plain language, § 1252(a)(2)(D)’s authorization to review

certain constitutional claims or questions of law does not apply to § 1252(g).”

Hussain v. Keisler, 505 F.3d 779, 784 (7th Cir. 2007).

      The petition for review is denied.


                                                    Entered for the Court


                                                    Timothy M. Tymkovich
                                                    Circuit Judge




                                           - 17 -
