                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-3570
                                      _____________

                             MILTON MODESTO JARAMA,
                                           Petitioner
                                       v.

                            ATTORNEY GENERAL OF THE
                            UNITED STATES OF AMERICA,
                                            Respondent

                                     ______________

       On Petition for Review of a Decision of the Board of Immigration Appeals
                                  (No. A073-576-642)
                         Immigration Judge: John P. Ellington
                                   ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  December 9, 2019
                                  ______________

                Before: RESTREPO, ROTH and FISHER, Circuit Judges.

                                  (Filed: March 12, 2020)
                                      ______________

                                        OPINION*
                                     ______________




       *
         This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
RESTREPO, Circuit Judge.

       Petitioner Milton Modesto Jarama petitions for review of the decision of the Board

of Immigration Appeals (BIA) dismissing his appeal of the Immigration Judge’s (IJ)

denial of adjustment of status under the Immigration and Nationality Act, 8 U.S.C. §

1255(a).

                                             I

       Jarama is a native and citizen of Ecuador who has resided in the United States

since 1988. In March 2014, the Department of Homeland Security issued a Notice to

Appear (NTA) charging him as inadmissible. In the course of proceedings, Jarama

applied for adjustment of status as relief from removal. At a May 30, 2017 final hearing,

the IJ denied Jarama’s application for adjustment of status both “as a matter of statutory

eligibility and as a matter of discretion” and ordered him removed. App. A_17. Jarama

appealed the IJ’s decision to the BIA.

       In an October 23, 2017 opinion, the BIA affirmed the IJ’s discretionary denial of

adjustment of status and thus declined to address statutory eligibility. Reviewing the IJ’s

discretionary decision de novo, the BIA considered the following positive and negative

factors:

              The respondent has presented positive factors which generally weigh
       in favor of granting his application. The respondent, who has resided in the
       United States for nearly 30 years, has strong family ties to this country,
       including his spouse and three children, and has apparently maintained
       gainful employment in this country. His removal from the United States
       would result in a significant level of hardship to himself and his family.
              The respondent’s criminal record is a serious adverse factor. Aside
       from his arrests not resulting in convictions, the respondent was convicted
       of drunk driving offenses in 1997, 2012, 2016, and 2017, and other

                                             2
       offenses, such as tampering with a public record in 2006 and recklessly
       endangering another person in 2012. While the respondent has testified
       regarding an effort to seek rehabilitation, he demonstrated a tendency to
       minimize his conduct. He continued to drive after his license was
       suspended in approximately 2011 and has not complied with this nation’s
       tax laws for more than a decade.

App. A_2–3 (citations omitted). Considering the “totality of the circumstances,” the BIA

affirmed the IJ’s discretionary decision. App. A_3.

       The BIA declined to remand the case to a different IJ based on Jarama’s claim that

the IJ failed to maintain “judicial objectivity.” App. A_3. On this point, the BIA stated:

       Here, the respondent was provided a reasonable opportunity to present the
       merits of his application for adjustment of status and has not established
       that substantial prejudice resulted from the alleged misconduct. Fadiga v.
       U.S. Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007). Given the overall
       seriousness and repeated nature of the respondent’s criminal convictions, he
       has not established that the claimed infraction had potential for affecting the
       outcome of these proceedings, i.e., a discretionary denial of his application
       for adjustment of status and the entry of an order of removal. Cham v. U.S.
       Att’y Gen., 445 F.3d 683, 691, 694 (3d Cir. 2006).

App. A_3. Jarama timely petitions for review of the BIA’s decision.1

                                             II

       Jarama raises two issues in his petition, one jurisdictional and one constitutional.

                                             A

       First, Jarama contends that the IJ and the BIA lacked subject matter jurisdiction

over his removal proceedings because the March 2014 NTA charging him as

inadmissible failed to list the time and place of his hearing before the IJ. By his



       1
        The BIA exercised jurisdiction over this case under 8 C.F.R. § 1003.1(b)(3), and
we exercise jurisdiction over this petition for review pursuant to 8 U.S.C. § 1252.
                                              3
argument, because the NTA lacked this statutorily required information, the defective

charging document failed to vest the IJ with subject matter jurisdiction.2

       Our precedential opinion in Nkomo v. Attorney General, 930 F.3d 129 (3d Cir.

2019) squarely forecloses this argument. In Nkomo, we held that “a notice to appear that

fails to specify the time and place of an initial removal hearing” does not “deprive[] an

immigration judge of jurisdiction over the removal proceedings.” Id. at 131. Here,

pursuant to Nkomo, the IJ and the BIA properly exercised subject matter jurisdiction over

Jarama’s case, despite the lack of time and place information in the charging document.3

                                             B

       Second, Jarama argues that the IJ failed to act in a neutral manner in violation of

his Fifth Amendment due process rights. The Government contends that this Court lacks

jurisdiction to review Jarama’s due process challenge because his claim is “not colorable”

and is “ultimately challenging the agency’s discretionary denial of adjustment of status.”

Respondent’s Br. 16.4

       While this Court lacks jurisdiction to review judgments regarding discretionary

relief, 8 U.S.C. § 1252(a)(2)(B)(i), we retain jurisdiction to review “constitutional claims

       2
         Petitioner acknowledges he received the relevant time and place information in a
separate notice issued at around the same time as the deficient NTA.
       3
         Our recent opinion in Guadalupe v. Att’y Gen., No. 19-2239, 2020 WL 913242,
at *3 (3d Cir. Feb. 26, 2020), held that an insufficient NTA fails to trigger the stop-time
rule. Nevertheless, as we decided in Nkomo, 930 F.3d at 131, an insufficient NTA does
not affect jurisdiction. Nkomo is controlling here.
       4
         The Government also raised this argument in a motion to dismiss the petition for
review for lack of jurisdiction filed on November 28, 2017. For the reasons discussed
herein, we will deny that motion.
                                             4
or questions of law” when they are “colorable,” Pareja v. Att’y Gen., 615 F.3d 180, 186

(3d Cir. 2010). “To determine whether a claim is colorable, we ask whether ‘it is

immaterial and made solely for the purpose of obtaining jurisdiction or is wholly

insubstantial and frivolous.’” Id. (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 513

n.10 (2006)). A colorable claim must “consist of more than mere bald-faced allegations

of misconduct.” United States v. Voigt, 89 F.3d 1050, 1067 (3d Cir. 1996). A claim can

be both colorable and meritless—and we would exercise jurisdiction over such a claim.

       We hold that Jarama’s due process claim, discussed below, is “colorable.” It is

not “immaterial,” “made solely for the purpose of obtaining jurisdiction,” or “wholly

insubstantial and frivolous.” See Pareja, 615 F.3d at 186. And he asserts “more than

mere bald-faced allegations of misconduct.” See Voigt, 89 F.3d at 1067. We will thus

address the merits. In doing so, we will affirm findings of fact that are based on

“substantial evidence,” and we will exercise plenary review over legal determinations.

Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 212–13 (3d Cir. 2017).

       Fifth Amendment due process protections afford individuals in immigration

proceedings an “‘opportunity to be heard at a meaningful time and in a meaningful

manner.’” Serrano-Alberto, 859 F.3d at 213 (quoting Dia v. Ashcroft, 353 F.3d 228, 239

(3d Cir. 2003) (en banc)). “[P]etitioners must receive a full and fair hearing that allows

them a reasonable opportunity to present evidence on their behalf and a decision on the

merits of their claim by a neutral and impartial arbiter.” Id. (internal quotations and

citations omitted); see also Cham, 445 F.3d at 691 (“No person may be deprived of his

interests in the absence of a proceeding [where] . . . the arbiter is not predisposed to find

                                              5
against him.” (internal quotations and alteration omitted)). Even where the Petitioner’s

underlying claim is for discretionary relief, he maintains his constitutional due process

rights. Id.

       To establish a due process violation, a petitioner must demonstrate that the alleged

violation “had the potential for affecting the outcome” of the proceedings. Id. at 694. In

Cham, this Court held that an IJ violated a petitioner’s due process rights where the IJ

approached the petitioner with “belligerence” and “wholesale nitpicking of [his]

testimony,” effectively preventing him from presenting his case. Id. at 691, 694 (“Had

Cham not been brow beaten, and had corroboration by his relatives been actually heard

and considered, it is possible that material details surrounding his experience would have

come to light, justifying relief from deportation.”).

       Jarama first argues that the IJ violated his due process rights when he “rel[ied] not

just on convictions but also on contacts with law enforcement against the legal standard

for finding removability.” Petitioner’s Br. 25–26. Under BIA precedent, an arrest—

without a prosecution, an admission, any corroboration, or the like—should be given

“little weight” as a negative factor in a discretionary analysis. In re Arreguin De

Rodriguez, 21 I. & N. Dec. 38, 42 (B.I.A. 1995).

       Here, contrary to Jarama’s arguments, the IJ did not rely on Jarama’s arrests or

charges that did not result in convictions in denying his adjustment of status. While the

IJ noted separate instances where multiple charges were brought against Jarama, the IJ

took care to differentiate which charges resulted in convictions and which did not. Then,

in summarizing his conclusion on the negative discretionary factors, the IJ made it clear

                                              6
that he appropriately relied on convictions and admissions of criminal conduct, not

arrests:

       The court would find that the respondent’s criminal convictions are
       overwhelming in this case. The court would note that the pattern of
       conduct regarding irresponsible and potentially deadly behavior is
       overwhelming in this case. The respondent has been convicted of multiple
       DUIs. The court would note that the respondent has been convicted of two
       DUIs since he was placed in immigration proceedings. The court would
       find that the respondent knew of the potential consequences, since he was
       in immigration proceedings, and continued to engage in criminal behavior.

App. A_16–17 (emphasis added). In addition to the IJ’s lack of reliance on the existence

of arrests, this alleged misconduct could not have potentially impacted the outcome of the

case, given the IJ’s strong emphasis on convictions and given that the Petitioner does not

take issue with the BIA’s de novo review of the negative discretionary factors, which

independently affirmed the IJ’s conclusion.

       Jarama’s next argument, based on three different comments by the IJ, essentially

contends the IJ was not a “neutral and impartial arbiter.” Serrano-Alberto, 859 F.3d at

213. This argument fails because the Petitioner mischaracterizes the IJ’s quotations and

because, unlike in Cham, the Petitioner has not shown how the alleged indiscretions

would have “the potential for affecting the outcome” of his proceedings. See 445 F.3d at

694.

       The first two comments by the IJ that the Petitioner claims were improper, (1) that

Jarama’s wife “‘should get comfortable” taking the “children to the laundromat by

herself’” and (2) that the IJ would “‘bet his pension’ that Jarama would be deported,”

Petitioner’s Br. 26 (record citations not provided), appear to reference an October 20,


                                              7
2016 hearing that took place before Jarama applied for adjustment of status. A.R. 739–

40, 742–43 (respectively). Viewing these statements as they were actually said and in

proper context, it is clear that the IJ was not demonstrating bias or animosity.

       Regarding the first statement, during an exchange about whether Jarama was

seeking voluntary departure, the IJ seemed to acknowledge Jarama’s wife’s difficult

situation in a straightforward manner:

       I understand it’s a difficult situation because you have kids and you have a
       husband that’s locked up. And there are all kinds of issues. And it’s not
       easy because you’re losing money and it’s nerve wrack [sic] and you have
       to deal with the sick kids and the laundry and the grocery shopping and
       everything by yourself. . . . I only understand a little bit of what you’re
       going through but I have empathy for what you are probably going through
       as the head of the household.

A.R. 739–40.

       Regarding the second statement, the IJ was speculating that the BIA would uphold

his decision denying bond for Jarama. The IJ stated:

       I got to be honest with you. I think even if you appeal your bond, based on
       my experience – and I could be wrong – the Board of Immigration Appeals
       is not going to give you a bond. I would honestly be willing to bet my
       retirement on that. But I could be wrong. So, if anybody is listening and
       he gets a bond, I’m not actually betting my requirement [sic]. I was just
       being whatever. So, I can’t give you a bond. So, right now you have no
       form of relief other than voluntary departure.

A.R. 742–43.

       While the IJ perhaps took more editorial license than ideal—and then seemingly

bit his tongue—he did not “‘bet his pension’ that Jarama would be deported” before

hearing all of the evidence. Petitioner’s Br. 26. Neither this statement nor the statement

above amounts to a due process violation. Neither demonstrates that the IJ failed to act in

                                              8
a neutral manner, and neither could potentially impact the outcome of the proceedings.

See Cham, 445 F.3d at 691 (holding that Petitioner’s due process rights were violated

where the IJ approached the petitioner with “belligerence” and “wholesale nitpicking of

[his] testimony”).

          All that remains for analysis is the last statement noted by Petitioner: that the IJ

“express[ed] to Jarama in open court his belief that Jarama’s alleged entry to the United

States was a fabrication” when Jarama had clarified why there was a misunderstanding

about certain details of his entry into the country. Petitioner’s Br. 26–27. Even if we

were to assume that this could constitute wrongful conduct, neither the IJ nor the BIA

relied on this information when they denied relief as an exercise of discretion. See App.

A_9 (IJ opinion) (stating that “even if [the court] were to find a 100 percent credible

finding in this case, [it] would deny [relief] as a matter of discretion”), A_2 (BIA

opinion) (“We are not persuaded that the respondent has established that he warrants

adjustment of status as a matter of discretion.”). Jarama thus cannot demonstrate that this

could have “the potential for affecting the outcome” of his proceedings. Cham, 445 F.3d

at 694.

          Given the above, Jarama has not established a Fifth Amendment due process

violation.

                                                III

          For the foregoing reasons, we will deny the petition for review.




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