                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                             September 14, 2005
                              No. 05-10300                    THOMAS K. KAHN
                          Non-Argument Calendar                   CLERK
                        ________________________

                          Agency No. A96-335-053

KUMARALINGEM RAGEEVAN,


                                                                     Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                        ________________________

                   Petition for Review of a Decision of the
                        Board of Immigration Appeals
                        _________________________
                             (September 14, 2005)


Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

     Kumaralingem Rageevan, through counsel, petitions for review of the Board
of Immigration Appeals’s (“BIA”) adoption and affirmation of the Immigration

Judge’s (“IJ’s”) order directing his removal and finding his applications for

asylum, withholding of removal under the Immigration and Nationality Act

(“INA”), and relief under the United Nations Convention Against Torture and

Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”),

abandoned. We AFFIRM.

                                     I. BACKGROUND

       Rageevan, a native and citizen of Sri Lanka, arrived in United States

territory on 18 January 2004, at San Juan, Puerto Rico, seeking admission into the

United States as a nonimmigrant alien. Based on its determination that he was not

in possession of a valid immigrant visa, or any other entry document, and that he

was likely to become a public charge, the Immigration and Naturalization Service

(“INS”)1 arrested Rageevan and detained him at the Tensas Parish Detention

Center in Waterproof, Louisiana. The INS subsequently issued to Rageevan a

notice to appear (“NTA”) before an IJ, charging him with removability under 8

U.S.C. § 1182(a)(4)(A), (a)(7)(A)(i)(I).

       On 2 April 2004, Rageevan appeared before an IJ at a master calendar


       1
         On 25 November 2002, the Homeland Security Act of 2002 (“HSA”), Pub. L. No.
107-296, 116 Stat. 2135, was signed into law. The HSA abolished the INS and transferred its
functions to the newly created Department of Homeland Security (“DHS”). Because this case
was initiated while the INS was still in existence, however, this opinion will reference the INS
rather than the DHS.
                                                  2
hearing without counsel.2 An interpreter was present for the hearing and translated

the proceedings into Rageevan’s Tamil language. At the start of the proceedings,

the IJ informed Rageevan that he could retain counsel, but Rageevan responded

that he already had an attorney. Although the IJ had not received notice of

representation from any counsel on Rageevan’s behalf, the IJ ordered the

proceedings to be continued so that Rageevan’s counsel could appear. Before

dismissing Rageevan, however, the IJ informed him that he should submit an

asylum application if he feared persecution or torture in Sri Lanka and warned him

about filing a false asylum claim. During this warning, the interpreter asked the IJ

to repeat himself. At that time, the IJ repeated the warning about filing a false

asylum claim, but not the need to have the completed application for asylum at the

next hearing. At the conclusion of the hearing, however, the court officer provided

Rageevan with the I-589 Application for Asylum, and the IJ again instructed him

to have it completed by the next hearing. The IJ also instructed the court officer to

give Rageevan a list of attorneys. Rageevan acknowledged that he understood the

IJ’s instructions.

       On 21 April 2004, the INS personally served Rageevan with notice that his

next hearing would occur on 7 May 2004. At this hearing conducted via televideo,



       2
       The record contains no documentation that notice of this hearing was given to
Rageevan.
                                            3
Rageevan appeared again before the IJ without an attorney. While he maintained

that he had an attorney, no attorney had filed an appearance with the court, and

Rageevan did not have his attorney’s contact information at the hearing.3 The IJ

did not ask Rageevan if he wanted to continue with the hearing unrepresented, but

rather began to question Rageevan about the matters contained in the NTA.

Rageevan testified that: he was a native and citizen of Sri Lanka; he entered United

States territory in San Juan, Puerto Rico, on 18 January 2004, seeking entry as a

nonimmigrant; he did not have money or other available resources in the United

States; and he did not possess an immigrant visa. Regarding his asylum

application, Rageevan testified that he had completed the application, but had left it

in his dormitory. After Rageevan was allowed the retrieve the application, the IJ

asked the court officer to read whether Rageevan had indicated that he had a fear of

persecution if he returned to Sri Lanka. The court officer stated that Rageevan had

indicated he was seeking asylum based on his membership in a social group, but

failed to identify any particular social group. Accordingly, the IJ found Rageevan

had failed to return a completed asylum application as required, and therefore

deemed his application for asylum abandoned and ordered him removed. The IJ

informed Rageevan that the court would reconsider its order if he submitted a

completed I-589 form along with a motion to reopen.

      3
          Rageevan’s attorney did not file a notice of appearance until 1 June 2004.
                                                  4
        Rageevan, through counsel, appealed the IJ’s decision to the BIA. Rageevan

argued that his due process rights were violated, inter alia, because he was not

given proper notice of his hearings, his hearing was conducted via televideo, he

was not given a reasonable opportunity to find another attorney or to file for the

relief he sought pro se, and his Alien Registration Number (“ARN”) was

improperly reported on the Executive Office of Immigration Review’s information

line.

        The BIA adopted and affirmed the IJ’s decision. It held that, even though

there was no notice in the record of the first hearing, no prejudice occurred because

Rageevan attended the hearing. Moreover, the BIA rejected Rageevan’s claim that

he was not afforded an opportunity to retain counsel because he claimed at both

proceedings that he had counsel. Further, the BIA concluded that Rageevan could

not establish prejudice with regard to his claim of a due process violation because

the IJ offered him the opportunity to submit a completed asylum application and a

motion to reopen, but Rageevan failed to do so.

        On appeal, Rageevan argues that he was denied his due process rights to

counsel and to a fair hearing. Particularly, he asserts that he was effectively denied

counsel because of the discrepancy with his ARN and the lack of notice of the time

and date of his hearings. In addition, he argues that the proceedings before the IJ

were unfair because the record revealed miscommunications during the
                                           5
teleconference and because the IJ conducted the hearing via televideo and therefore

did not review personally his asylum application.

                                   II. DISCUSSION 4

       We review de novo a BIA’s dismissal of a petitioner’s claim that his due

process rights were violated by proceedings before the IJ. Lonyem v. United

States Att’y Gen., 352 F.3d 1338, 1341 (11th Cir. 2003) (per curiam). “To

establish due process violations in removal proceedings, aliens must show that they

were deprived of liberty without due process of law, and that the asserted errors

caused them substantial prejudice.” Id. at 1341-42.

       The Fifth Amendment provides that “[n]o person shall be . . . deprived of

life, liberty, or property, without due process of law.” U.S. C ONST. amend V.

Aliens are entitled to the Fifth Amendment’s due process rights during deportation

proceedings. Reno v. Flores, 507 U.S. 292, 306, 113 S. Ct. 1439, 1449 (1993). In

this appeal, Rageevan argues that his Fifth Amendment due process rights were

violated because he was denied counsel and because the hearings before the IJ

were unfair. We will examine each argument in turn.




       4
          Because Rageevan’s removal proceedings commenced after 1 April 1997, the effective
date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),
this case is governed by the permanent provisions of the INA, as amended by IIRIRA. See
Gonzalez-Oropeza v. United States Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003) (per
curiam).
                                                6
A. Right to Counsel

      The right to counsel at a removal hearing, although statutory, see 8 U.S.C.

§ 1229a(b)(4)(A), is nonetheless grounded in the Fifth Amendment right to due

process. See Reno, 507 U.S. at 306, 113 S. Ct. at 1449. According to regulations,

an IJ must advise the alien of his right to counsel and the availability of free legal

services, ascertain whether the alien desires counsel, and ensure that the alien has

received a list of available free legal service programs. 8 C.F.R. § 1240.10(a). An

alien may waive the right to counsel if he chooses to proceed without counsel after

being appraised of his right to the assistance of counsel. See Cobourne v. INS, 779

F.2d 1564, 1566 (11th Cir. 1986) (per curiam). Moreover, if an alien demonstrates

a due process violation, the alien must show that “the presence of counsel might

have affected the outcome” before we can conclude that there was “substantial

prejudice” as a result of the constitutional violation. Id.

      Based on the foregoing precedent, we conclude that Rageevan’s allegations

fail to demonstrate reversible error based on effective denial of counsel. At the 2

April 2004 hearing, the IJ informed Rageevan of his right to counsel and the

availability of free legal services as required by 8 C.F.R. § 1240.10(a). After

acknowledging that he understood his rights, Rageevan stated that he had counsel,

and the proceedings were continued so that counsel could appear. Thus, although

the record does not demonstrate that Rageevan received notice of his first hearing
                                            7
before the IJ, this error did not impact the outcome of his case because no action

was taken with respect to his case at the first proceeding. For the 7 May 2004

hearing, however, Rageevan did receive proper notice and therefore could have

arranged for appearance of counsel. Although Rageevan argues that a discrepancy

with the reporting of his ARN hindered the ability of counsel to appear, the record

indicates that Rageevan proceeded with the 7 May 2004 hearing without counsel

and admitted to the allegations in his NTA. Thus, by proceeding with the case,

Rageevan waived his right to counsel at the May hearing. See Cobourne, 779 F.2d

at 1566. Moreover, although Rageevan argues that the assistance of counsel would

have aided in the preparation of his asylum application, the record reflects that the

IJ informed Rageevan that the asylum application had to be completed by the 7

May 2004 hearing and that Rageevan acknowledged he understood this instruction.

Because Rageevan was appraised of his rights and yet proceeded with the 7 May

2004 hearing without counsel, we conclude he waived the benefit of counsel with

respect to filing the asylum application as well. Id. Moreover, we note that

although the IJ indicated he would grant a motion to reopen if filed, no such

motion was ever filed, even after counsel entered a notice of appearance in the

case. Accordingly, because Rageevan failed to seek further proceedings, we

conclude that any due process violations associated with the lack of notice of the

first IJ hearing or the purported ARN reporting discrepancy did not cause
                                           8
substantial prejudice. See Vasquez-Acevedo v. United States Att’y Gen., 131 Fed.

Appx. 182, 184 (11th Cir. 2005) (finding alien could not show substantial

prejudice where counsel failed to avail the client of IJ’s offer to seek additional

proceedings). Thus, we reject Rageevan’s argument that any due process

violations require reversal of the BIA’s order.

B. Right to Fair Trial

      The Fifth Amendment’s guarantee of “[d]ue process is satisfied only by a

full and fair hearing.” Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir. 1987).

“The presence of a competent interpreter is important to the fundamental fairness

of a hearing, if the alien cannot speak English fluently.” Vasquez-Acevedo, 131

Fed. Appx. at 184 (internal quotation and citation omitted). An alien must raise

objections to the insufficiency of the translation or hearing accommodations during

the proceedings, however, to demonstrate a due process violation. See Soares v.

INS, 449 F.2d 621, 623 (5th Cir. 1971); cf. Valladares v. United States, 871 F.2d

1564, 1566 (11th Cir. 1989) (“To allow a defendant to remain silent throughout the

trial and then, upon being found guilty, to assert a claim of inadequate translation

would be an open invitation to abuse.”). Moreover, to prevail on a due process

challenge to the sufficiency of removal proceedings, an alien must show substantial

prejudice, which typically requires a showing that the outcome would have differed

had the due process violation not occurred. See Ibrahim, 821 F.2d at 1550.
                                           9
      Based on the foregoing precedent, we conclude that Rageevan’s due process

rights to a fair hearing were not violated. Although Rageevan argues that there

were some miscommunications with the translator during his removal proceedings,

the record does not reflect that he made any mention or objection regarding these

purported miscommunications during the proceedings, and therefore he fails to

state a due process violation. Soares, 449 F.2d at 623. Moreover, the one

particular miscommunication Rageevan cites—the IJ’s failure at the first removal

hearing to repeat at the translator’s request in toto his instruction for Rageevan to

complete his asylum application—fails to state a due process violation because the

IJ repeated the directive about the need to complete the asylum application later in

the first proceeding. In addition, we reject Rageevan’s argument that his due

process rights were violated on account of the IJ’s failure to personally review his

asylum application because the proceeding took place via televideo. Had the IJ

been physically present to review Rageevan’s asylum application, the fact remains

that Rageevan did not complete the application because he did not identify that he

was part of a particular social group that would subject him to persecution in Sri

Lanka. See 8 C.F.R. § 208.3(c)(3) (“An asylum application that does not include a

response to each of the questions contained in the Form I-589 . . . is incomplete.”).

Because his application was incomplete, the IJ’s physical review of Rageevan’s

application would not have changed the outcome of the removal proceedings and
                                           10
therefore was not a reversible due process violation. See 8 C.F.R. § 1003.31(c)

(noting that if an alien fails to submit an application within the time set by an IJ,

the IJ may deem the application abandoned); see also Gonzalez-Quintero v. U.S.

Att’y Gen., No. 04-14592 (11th Cir. July 7, 2005) (finding no due process

violation where the IJ deemed an alien’s asylum application abandoned because

the alien failed to file a completed asylum application by time ordered by the IJ).

Moreover, we note that neither before the BIA nor on appeal did Rageevan argue

that the application was complete or that he was part of a particular social group

that would have affected the IJ’s determination. Thus, we reject Rageevan’s

argument that his due process rights were violated because he was not afforded a

full and fair hearing.

                                 III. CONCLUSION

       On appeal, Rageevan petitioned for review of the BIA’s adoption and

affirmation of the IJ’s order directing his removal and finding his applications for

asylum and withholding of removal abandoned. As we have explained, we discern

no reversible due process violations in the removal proceedings. Accordingly, the

PETITION is DENIED.




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