                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                        U.S. COURT OF APPEALS
                            No. 08-13546                  ELEVENTH CIRCUIT
                                                              APRIL 6, 2009
                        Non-Argument Calendar
                                                           THOMAS K. KAHN
                      ________________________
                                                                CLERK

                        Agency No. A73-717-989

JUAN MAXIMIANO OCHOA-ARTEGA,


                                                                     Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                      ________________________

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

                              (April 6, 2009)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Juan Maximiano Ochoa-Artega (“Ochoa-Artega”) appeals the Board of

Immigration Appeals’ (“BIA”) decision to dismiss his appeal of the Immigration

Judge’s (“IJ”) order denying his motion for termination of his removal proceedings

and subsequent order of removal. The BIA did not err because the regulations do

not require that a Notice to Appear (“NTA”) be legibly signed. However, if the

NTA was invalid, Ochoa-Artega was not substantially prejudiced by the defect

because the decision of whether to cancel removal under 8 U.S.C. § 1229b(b)(1) is

a discretionary decision by the Attorney General, and there is no constitutionally

protected right to discretionary relief. Therefore, we DENY the petition.

                                I. BACKGROUND

      In November 1994, Ochoa-Artega filed an application for asylum.

Administrative Record (“AR”) at 118. In November 1997, the Immigration and

Naturalization Service (“INS”) issued an NTA, charging that Ochoa-Artega, a

citizen and native of Mexico, was subject to removal under INA § 212(a)(6)(A)(i)

as an alien present in the United States without being admitted or paroled. Id. at

124. On the NTA, both the signature and title of the issuing officer were illegible.

Id. In April 1998, Ochoa-Artega failed to appear at his removal hearing. Id. at

114. The IJ proceeded with the removal hearing, found Ochoa-Artega removable

as charged, and ordered him removed to Mexico in absentia. Id.



                                          2
      In June 2006, Ochoa-Artega filed a motion to rescind the order of removal

with the IJ, and the IJ reopened the proceedings. Id. at 76, 82. In May 2007,

Ochoa-Artega filed a motion to terminate proceedings. Id. at 73. In relevant part,

Ochoa-Artega argued that the NTA was illegibly signed and had no printed

notification as to the officer’s name or title. Id. Ochoa-Artega hypothesized that

the title of the officer was “DAO,” which is the designation for an officer not

authorized to issue an NTA under 8 C.F.R. § 239.1(a). Id.

      The government opposed Ochoa-Artega’s motion to terminate proceedings.

Id. at 67. The government contended that although the signature on the NTA was

somewhat illegible, § 239.1(a) did not require a legible signature. Id. Further,

even if there was an error, Ochoa-Artega suffered no prejudice. Id. at 68-69.

Finally, Ochoa-Artega failed to overcome the presumption that the immigration

official properly discharged his duty. Id. at 68.

      The IJ denied the motion to terminate proceedings. Id. at 62. First, the IJ

found that the plain meaning of § 239.1 did not require a legible signature, and

therefore Ochoa-Artega had failed to show that the NTA was insufficient or

otherwise failed to meet the regulatory requirements. Id. Second, because the

NTA complied with the notice requirements of § 239.1, Ochoa-Artega’s due

process rights were not violated. Third, even if the government committed error,

Ochoa-Artega failed to display prejudice. Id.
                                           3
      In August 2007, Ochoa-Artega filed a motion to issue a decision without a

hearing so he could appeal to the BIA the denial of his motion to terminate. Id. at

51-52. The IJ found that Ochoa-Artega was removable as charged and ordered him

removed to Mexico. Id. at 47. The IJ continued to find that the NTA’s illegible

signature did not give Ochoa-Artega any substantive or procedural rights. Id. at

46-47. Finally, the IJ found that Ochoa-Artega failed to overcome the presumption

that government employees regularly discharge their duties or that any such error

prejudiced him. Id. at 47.

      Ochoa-Artega appealed the IJ’s decision to the BIA. Id. at 31. Ochoa-

Artega conceded that § 239.1(a) did not require a legible signature, but in order to

assess whether the person who signed the NTA acted within the scope of his

authority there needed to be a clearly legible and understandable signature. Id. at

16-17. Ochoa-Artega argued that he was prejudiced because if the NTA was

terminated and a new NTA was issued in its place, he would have accumulated the

ten years’ of continuous physical presence required to be eligible for cancellation

of removal. Id. at 17. Further, although there is a presumption of regularity when

a government official is undertaking his duty, this presumption was overcome by

the hardship of being removed from the United States due to an invalid NTA. Id.

at 18. Ochoa-Artega requested that a new charging document be issued according

to § 239.1. Id.
                                          4
      The BIA affirmed the IJ’s decision. Id. at 2. The BIA found that neither

§ 239 nor 8 C.F.R. § 1003.15 required that the issuing officer’s name or title be

listed on the NTA. Id. Moreover, the illegibility of the signature and title for the

issuing officer on the NTA did not provide clear evidence that the official failed to

discharge his official duties properly. Id. In addition, Ochoa-Artega’s request for

a reissued NTA did not change the finding that the original NTA was not defective

and that the IJ correctly denied the motion to terminate. Id. at 2-3.

                                 II. DISCUSSION

      On appeal, Ochoa-Artega argues that although the NTA complied with the

notice requirements of 8 U.S.C. § 1229, the NTA violated 8 C.F.R. § 239.1(a)

because it is unclear who authorized the NTA due to the illegibility of the signature

and title. Ochoa-Artega estimates that the title of the officer was “DAO” or

“District Adjudicator Officer,” which is not an officer authorized under § 239.1(a)

to issue an NTA. Ochoa-Artega contends that because § 239.1(a) does not permit

the use of symbols, acronyms, or other shorthand methods for indicating the title of

an immigration officer, his conclusion that an immigration officer’s name and title

must be clearly legible is reasonable. Ochoa-Artega concedes that § 239.1(a) does

not require a legible signature, but because the regulation specifies who is

authorized to issue an NTA, there must be a legible signature and title to determine

if the specified authorized official signed the NTA. Ochoa-Artega argues that he
                                           5
was prejudiced by the issuance of the NTA because he did not satisfy the ten years

of continuous physical presence necessary to establish statutory eligibility for

cancellation of removal. However, he posits, if a new NTA was issued, he would

now have the requisite ten years of continuous physical presence necessary for

relief. Ochoa-Artega contends that although there is a presumption of regularity

for government officials undertaking their duties, the hardship he has suffered

overcomes this presumption.

         When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA did not explicitly adopt the IJ’s

findings, and thus we review only the BIA’s decision. AR at 2. “To the extent that

the BIA’s decision was based on a legal determination, this court’s review is de

novo.” D-Muhumed v. United States Att’y Gen., 388 F.3d 814, 817 (11th Cir.

2004).

         The contents of an NTA are prescribed in 8 U.S.C. § 1229(a)(1) and the

immigration regulations and include, inter alia, the nature of the proceedings

against the alien and the legal authority under which the proceedings are

conducted, but do not require the inclusion of a signature or title of the issuing

officer. 8 U.S.C. § 1229(a)(1); 8 C.F.R. § 1003.15(b). The regulations specify a

number of officials authorized to issue an NTA. 8 C.F.R. § 239.1(a). In addition,
                                           6
formal actions by administrative agencies are entitled to a presumption that they

acted properly and according to the law. F.C.C. v. Schreiber, 381 U.S. 279, 296,

85 S. Ct. 1459, 1470 (1965).

      “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.” Lonyem v. United States Att’y

Gen., 352 F.3d 1338, 1341-42 (11th Cir. 2003) (per curiam). The Attorney

General may cancel removal of a nonpermanent resident who has been physically

present in the United States for at least ten years and establishes that removal

would result in exceptional hardship to the alien’s citizen or resident spouse,

parent, or child. 8 U.S.C. § 1229b(b)(1). The BIA’s determination as to whether

an individual has demonstrated an “exceptional and extremely unusual hardship”

for purposes of cancellation of removal is a purely discretionary decision that is not

subject to judicial review. Martinez v. United States Att’y Gen., 446 F.3d 1219,

1222 (11th Cir. 2006).

      In Kohli v. Gonzales, 473 F.3d 1061 (9th Cir. 2007), the Ninth Circuit ruled

that the illegibility of the name and title of officer who issued the NTA was not

fatal because a legible name and title of the issuing officer were not required by

any statute or regulation and, in any event, Kohli failed to show prejudice. Id. at

1067-69. Further, Kohli failed to rebut the presumption of regularity accorded to
                                           7
administrative agencies because she did not “come forward with any evidence

indicating that the person who signed the NTA lacked the authority to do so.” Id.

at 1068. The Ninth Circuit held that “in light of the number of officials that may

sign a NTA pursuant to 8 C.F.R. § 239.1(a), it appears that the decision to issue a

NTA is not limited to the discretion of highly placed officers, and it seems unlikely

that the official who signed the NTA was not authorized to do so.” Id.

      Because there is no statutory or regulatory authority requiring that the

issuing officer’s signature and title be present on the NTA, the illegibility of the

signature and title does not render it defective. See 8 U.S.C. § 1229(a)(1); 8 C.F.R.

§ 239.1(a). In fact, Ochoa-Artega concedes that there is no requirement. See

Petitioner’s Brief at 10; Reply Brief at 3. It is unlikely that the official who signed

the NTA was not authorized to do so as the decision to issue an NTA is not limited

to the discretion of highly placed officers. See 8 C.F.R. § 239.1(a); Kohli, 473

F.3d at 1068. Moreover, based on the presumption of regularity granted to

government officials, it should be presumed that the proper authorized official

signed the NTA. Schreiber, 381 U.S. at 296, 85 S. Ct. at 1470. Ochoa-Artega’s

attempt to overcome this presumption by speculating that the issuing officer was a

“District Adjudicator Officer” is not sufficient because there is no support for this

theory in the record. See AR at 124; Petitioner’s Brief at 8.



                                           8
      In the alternative, even if the NTA was invalid, Ochoa-Artega was not

substantially prejudiced by the defect. Ochoa-Artega argues that he was prejudiced

because the invalid NTA was issued before he had satisfied the requisite ten years

of continuous physical presence necessary to establish statutory eligibility for

cancellation of removal under § 1229b(b)(1). Because the decision of whether to

cancel removal under § 1229b(b)(1) is a discretionary decision by the Attorney

General, Ochoa-Artega was not deprived of due process because the decision was

not subject to judicial review. Martinez, 446 F.3d at 1222. Therefore, the BIA did

not err by affirming the IJ’s decision denying Ochoa-Artega’s motion for

termination of his removal proceedings and subsequent order of removal.

                                III. CONCLUSION

      Petitioner’s challenge to his removal proceedings on the basis that the Notice

to Appeal which initiated those proceedings was invalid due to the legibility of the

signature and title of the issuing officer is rejected. The applicable regulations and

statute do not require legibility and petitioner can demonstrate prejudice sufficient

to warrant the relief requested. Accordingly, the petition is DENIED.




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