            Case: 17-14193   Date Filed: 07/10/2018   Page: 1 of 4


                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-14193
                         Non-Argument Calendar
                       ________________________

                        Agency No. A072-798-623



KE CHUN WANG,

                                                                       Petitioner,


                                   versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                        ________________________

                              (July 10, 2018)

Before WILSON, HULL, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Ke Chun Wang petitions for review of the Board of Immigration Appeal’s

(BIA) decision affirming the immigration judge’s (IJ) order denying his claims for

asylum and withholding of removal. Wang argues that the IJ violated his right to

due process by issuing a decision following the BIA’s remand order “rather than

giving [him] an opportunity to present additional evidence.”

      We review only the BIA’s decision, except to the extent that it expressly

adopts the IJ’s opinion or reasoning. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284

(11th Cir. 2001). We lack jurisdiction to consider claims raised in a petition for

review unless they have been exhausted before the BIA. Amaya-Artunduaga v.

U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam). We review

constitutional issues de novo. Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341

(11th Cir. 2003) (per curiam).

      Due process protections, including notice and an opportunity to be heard,

apply in removal proceedings. Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143

(11th Cir. 2010) (per curiam). However, in order to establish a due process

violation, one must “show that he or she was deprived of liberty without due

process of law and that the purported errors caused her substantial prejudice.” Id.

In other words, the petitioner must show that, “in the absence of the alleged

violations, the outcome of the proceeding would have been different.” Id.




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      Here, Wang makes no showing of a due process violation or of substantial

prejudice. He argues that a violation with substantial prejudice exists because

“twice in the BIA’s decision, the BIA stated they are remanding Petitioner’s case

back for ‘further proceedings.’” This meant, he argues, that there would be

additional “proceedings where the Petitioner would be allowed to present

additional evidence.”

      A reading of the BIA’s remand order shows that this is a distortion, and that

the BIA did not order that some sort of hearing take place on remand. The remand

order stated that the BIA “will remand the record for further proceedings relating

to the respondent’s claim,” as the IJ had only “noted in passing” some of Wang’s

evidence but did “not otherwise address the merits.” (emphasis added).

Accordingly, the BIA decided to “remand the record in order for the [IJ] to analyze

[the claim] in the first instance.” (emphasis added). This analysis is confirmed by

the instant BIA opinion, which, interpreting its own remand order, stated:

    The [IJ] was not required to hold further hearings merely because our prior
    order remanded for “further proceedings” and the issuance of a new
    decision . . . . Our prior order instructed the [IJ] to address the respondent’s
    CDP claim and issue a new decision doing so; whether or not to hold
    further hearings or whether or not to accept additional documentary
    evidence is within the discretion of the [IJ].

      Further, on remand, the IJ noted that it considered “the arguments of both

parties and the entire record carefully,” including, but not limited to, Wang’s

earlier supplemental exhibits and the transcript of his testimony from two days in
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2013. And Wang does not tell us what additional evidence he would have

submitted, or that he attempted to submit this unknown evidence and was

somehow prevented from doing so. In short, as stated, he has made no showing of

a violation, and certainly no showing of prejudice, let alone substantial prejudice. 1

       PETITION DENIED.




1
  Additionally, to the extent that Wang separately argues that his due process rights were violated
because he was not permitted to respond to the BIA’s decision on remand to the IJ, that argument
was not raised before the BIA in his second appeal and is therefore unexhausted. See Amaya-
Artunduaga, 463 F.3d at 1250. Regardless, this argument seems to also rely upon Wang’s
misreading of the remand order, see, e.g., Blue Br. at 12, and we have already explained that he
has not shown substantial prejudice from the IJ’s failure to conduct some sort of hearing on
remand.


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