                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-22-2009

Doe v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4953




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                  Nos. 06-4953 & 07-1701


                                       JOHN DOE,1

                                                             Petitioner,
                                             v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                             Respondent.


                            On Petition for Review of an Order
                           of the Board of Immigration Appeals
                                    (No. A25-445-939)
                            Immigration Judge: Annie S. Garcy


                                 Argued November 17, 2008

      Before: SCIRICA, Chief Judge, FUENTES and HARDIMAN, Circuit Judges.

                            (Opinion Filed: January 22, 2009)


Laura E. Neish, Esq. (Argued)
Charles E. Stewart, Esq.
Zuckerman Spaeder
1540 Broadway, Suite 1604
New York, NY 10036-0000
      Attorneys for Petitioner



       1
       In light of Petitioner’s legitimate concerns about his safety in Haiti, we have
chosen to replace Petitioner’s name with a pseudonym throughout this Opinion.
Kevin J. Conway, Esq. (Argued)
Richard M. Evans, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044-0000
       Attorneys for Respondent


FUENTES, Circuit Judge:

       Petitioner John Doe, a native and citizen of Haiti, entered the United States as a

refugee and later became a lawful permanent resident. On April 17, 2006, Doe was

charged with removability. Following a hearing, the immigration judge (“IJ”) denied

relief and ordered Doe removed pursuant to 8 U.S.C. § 1337(a)(2)(B)(i). Approximately

two weeks later, Doe filed a pro se Motion to Reopen his case in order to file an asylum

claim. The IJ denied the Motion and the Board of Immigration Appeals (“BIA”)

affirmed. Doe promptly filed a petition for review of the BIA’s decision. On December

4, 2006, before we had the opportunity to review his Motion to Reopen, Doe filed a

second Motion to Reopen with the BIA, offering evidence that was not available during

the original hearing before the IJ. The BIA denied the second Motion to Reopen and Doe

again filed a timely petition for review. We now consider both appeals.

       We have jurisdiction pursuant to 8 U.S.C. § 1252, and we will deny both petitions

for the reasons that follow.2


       2
      We pause to express our appreciation to pro bono counsel, Ms. Laura E Neish and
Mr. Charles E. Stewart, both of Zuckerman Spaeder, for representing Doe in this appeal.

                                             2
                                             I.

       Because we write exclusively for the parties, we only discuss the facts and

proceedings to the extent necessary for the resolution of this case.

       On September 16, 2005, Doe was convicted of aggravated sexual contact in the

third degree, and was charged with removability. The IJ, however, was not convinced

that the evidence supported the charge. The Government then withdrew the charge and

substituted two drug convictions from 2000 and 2001. Doe conceded the facts behind the

drug convictions, and the IJ ordered Doe removed. The IJ laid out Doe’s appellate

options, but he chose to waive his appellate rights rather than prolong his detention.

       Approximately two weeks after the IJ’s decision, Doe decided he did want to

appeal the removal order and filed a Motion to Reopen his asylum claim. On July 6,

2006, the Motion to Reopen was denied by the IJ, and Doe sought review of the decision

with the BIA twice: once directly after the IJ rendered her decision, and once after

submitting new evidence. Both petitions for review are discussed below.

                                             II.

       “We review the BIA’s denial of a motion to reopen for abuse of discretion, and

review its underlying factual findings related to the motion for substantial evidence.”

Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006) (internal citation omitted). This

standard of review grants broad deference to the decisions of the BIA. Ezeagwuna v.

Ashcroft, 325 F.3d 396, 409 (3d Cir. 2003); see Sevoian v. Ashcroft, 290 F.3d 166, 173

(3d Cir. 2002) (“No statute or regulation creates any circumstance in which a motion to

                                              3
reopen must be granted. This implies that motions to reopen remain discretionary

motions, which the Board or Immigration Judge has ‘broad discretion’ to grant or deny.”

(internal quotation marks and citations omitted)). Thus, we should reverse the BIA’s

decision only if it is “arbitrary, irrational, or contrary to law.” Fadiga v. Att’y Gen U.S.,

488 F.3d 142, 153 (3d Cir. 2007).

                                             III.

       On November 3, 2006, the BIA rejected Doe’s appeal of the IJ’s decision not to

reopen his immigration proceedings. According to the relevant immigration regulations,

a motion to reopen shall not be granted unless

              it appears to the Board that evidence sought to be offered is
              material and was not available and could not have been
              discovered or presented at the former hearing; nor shall any
              motion to reopen for the purpose of affording the alien an
              opportunity to apply for any form of discretionary relief be
              granted if it appears that the alien’s right to apply for such
              relief was fully explained to him or her and an opportunity to
              apply therefore was afforded at the former hearing, unless the
              relief is sought on the basis of circumstances that have arisen
              subsequent to the hearing.

8 C.F.R. § 1003.2(c)(1) (emphasis added). The BIA correctly noted that Doe had failed

to present any evidence with his initial Motion to Reopen—such as evidence of changed

circumstances—that was not available during the pendency of his hearing before the IJ.

To the contrary, all of the evidence presented by Doe with his Motion to Reopen predated

his initial hearing—in some instances by more than a decade. Accordingly, the BIA’s

denial of Doe’s appeal of his first Motion to Reopen was not an abuse of discretion.


                                              4
       Doe also argues that his waiver of his appellate rights during his hearing was not

knowing and voluntary. In particular, he states that he experienced difficulty obtaining a

lawyer due to restrictive phone rules at the institution where he was detained, and thus

was denied the benefit of counsel. “It is well-established that an alien at an immigration

hearing has some form of right to counsel. It is equally well-settled, though, that ‘there is

no Sixth Amendment right to counsel in deportation hearings.’” Ponce-Leiva v. Ashcroft,

331 F.3d 369, 374 (3d Cir. 2003) (citing Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir.

2002)). Rather, any arguments based on a denial of counsel must be grounded in the Fifth

Amendment’s due process guaranty. Uspango, 289 F.3d at 231. “Where an alien claims

a denial of due process because he was prevented from making his case to the BIA or the

IJ, he must show (1) that he was prevented from reasonably presenting his case and (2)

that substantial prejudice resulted.” Fadiga, 488 F.3d at 155 (internal quotation marks

omitted).

       Here, Doe cannot show that he was prevented from reasonably presenting his case.

The IJ repeatedly explained to Doe the ramifications of his decision to waive his right to

appeal. On numerous occasions, the IJ asked Doe if he wanted more time in order to

consult with a lawyer, offering to postpone her final determination in order for Doe to

obtain legal assistance. The IJ even asked Doe if he wanted to take the I-589 asylum

form with him to the detention center in order to give the matter more thought. Doe,

however, evidently desired to get the proceedings over with and expedite his release from

detention. Waiver of appeal to avoid further detention is one of the principal policy

                                              5
reasons behind permitting a petitioner to waive appellate remedies in an immigration

hearing:

              Achieving immediate finality of an Immigration Judge’s
              decision is important, especially for a detained alien who has
              no interest in appeal and wishes only to depart. Waiver of
              appeal permits the execution of a removal order prior to
              expiration of the 30-day appeal period, thereby sparing the
              alien additional time in custody and taxpayers the expense of
              needless detention.

In re Rodriguez-Diaz, 22 I. & N. Dec. 1320, 1322 (B.I.A. 2006). Doe acknowledged that

the IJ had informed him of the ramifications of his actions, and further acknowledged that

he had made a mistake in not listening to the IJ. Accordingly, the BIA’s did not abuse its

discretion in determining that Doe’s waiver of his appellate rights was both knowing and

voluntary.3

                                            IV.

       On December 13, 2006, Doe filed a second Motion to Reopen with the BIA.4


       3
        Doe cites only one case for the proposition that the sort of phone obstruction he
allegedly experienced was an “undo curtailment of the privilege of representation,” and
thus constituted a violation of due process: Chlomos v. U.S. Dep’t of Justice, 516 F.2d
310 (3d Cir. 1975). In Chlomos, however, the immigration hearing officer proceeded
with the case “despite Chlomos’s repeated requests for his lawyer.” Id. at 313. In Doe’s
hearing, the IJ bent over backward to ensure that Doe had the legal representation he
desired—she referred him to a legal services provider and repeatedly offered to postpone
the proceedings so that Doe could obtain representation. The IJ proceeded to a final
decision when she did because Doe wanted her to—he expressed a desire to be done with
the process, to be released from detention, and to go back to Haiti. Quite simply, the facts
of Chlomos are not on point.
       4
       In his December 4, 2006 Motion, Doe also petitioned for reconsideration of the
BIA’s November 3, 2006 ruling. The BIA denied this Motion, correctly noting that Doe

                                             6
Unlike his previous Motion to Reopen, this Motion included evidence that could not have

been presented at his initial hearing. Specifically, Doe presented evidence of legal

proceedings related to a family member and argued that those proceedings would provoke

his adversaries in Haiti into issuing reprisals.

       On February 9, 2007, the BIA rejected Doe’s second Motion to Reopen, holding

that Doe’s allegations of potential harm were too general, consisting of mere conjecture

and speculation. In particular, the BIA expressed doubt that Doe had properly connected

any personal threat of harm to the previously-mentioned legal proceedings:

              “[Doe] has provided no evidence that the [legal proceedings],
              which w[ere] premised on the activities perpetrated by [his
              adversaries] at the time of the military coup in Haiti, ha[ve]
              resulted in any new threats of harm to the respondent or his
              [family] since [they were] issued . . . Even if we were to
              accept the respondent’s contention that [his adversaries]
              continue their acts of violence to this day, we will not
              speculate as to the possibility that the respondent could be
              subjected to persecution on account of his [family’s legal
              proceedings], as it would be mere conjecture.

(App. 4.) This determination was not an abuse of discretion. We agree with the BIA that

the evidence presented by Doe does not demonstrate how his adversaries might

realistically connect him with his family’s legal proceedings. Without such evidence, the

BIA is surely correct–it is mere speculation that his adversaries would harm him because


had not pointed to any additional legal arguments, changes in law, or overlooked aspects
of the case that would warrant such a reconsideration. Accordingly, for the reasons
already detailed in Part III of this Opinion, the BIA did not abuse its discretion in denying
Doe’s original Motion to Reopen. See Borges v. Gonzalez, 402 F.3d 398, 404 (3d Cir.
2005) (noting that motions to reconsider are also reviewed for abuse of discretion).

                                               7
of the acts of related family members. Accordingly, the BIA’s denial of Doe’s second

Motion to Reopen was not an abuse of discretion.

                                           V.

       For the foregoing reasons, we deny Doe’s petition and affirm the decisions of the

BIA.




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