           Case: 13-10655   Date Filed: 12/05/2013   Page: 1 of 12


                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 13-10655
                         Non-Argument Calendar
                       ________________________

                        Agency No. A205-502-407


BEYAGI TOURAY,

                                                                      Petitioner,

                                  versus


U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                        ________________________

                            (December 5, 2013)

Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
             Case: 13-10655     Date Filed: 12/05/2013   Page: 2 of 12


      Beyagi Touray seeks review of the Board of Immigration Appeals’s (“BIA”)

dismissal of his appeal of the Immigration Judge’s (“IJ”) final removal order.

After review, we deny the petition for review.

                               I. BACKGROUND

A.    Admission and Notice to Appear

      On May 17, 2011, Touray, a citizen of Gambia, was admitted to the United

States on a nonimmigrant student visa to attend Brookhaven College in Dallas,

Texas. From December 2011 onward, however, Touray failed to attend

Brookhaven College, which terminated its visa sponsorship for Touray.

      On June 27, 2012, Immigrations and Customs Enforcement (“ICE”) agents

encountered Touray in College Park, Georgia during a law enforcement operation

conducted with the Bureau of Alcohol, Tobacco, Firearms and Explosives. Upon

making immigration inquiries, ICE learned that Touray had violated the terms of

his student visa. The same day, Touray was served in person with a Notice to

Appear (“NTA”), charging him with removability under INA § 237(a)(1)(C)(1), 8

U.S.C. § 1227(a)(1)(C)(i), based on his failure to attend Brookhaven College. The

NTA specified that the date and time for Touray’s hearing would be set at a later

time. Touray was detained by ICE at the Lumpkin County Detention Center.

      The ICE agent who interviewed Touray on June 27, 2012 noted in Touray’s

record, inter alia, that Touray admitted not attending school because he was


                                            2
              Case: 13-10655      Date Filed: 12/05/2013    Page: 3 of 12


waiting for money to be sent to him and to being “out of status.” Touray “claimed

to be married, but could not spell his wife’s first name, provide a phone number for

her, or provide an address where she currently resides – claiming they don’t live

together any longer.” Touray also could not remember the month in 2012 that he

was married or provide any legal document of the marriage.

B.    July 30, 2012 Hearing Before the IJ

      On July 26, 2012, Touray was served with notice by mail at the Lumpkin

County Detention Center of his master calendar hearing scheduled for July 30,

2012, and to be held at the detention center.

      At the July 30, 2012 master calendar hearing, the IJ explained to Touray that

an admission to the charges in the NTA would be sufficient to remove Touray

from the country, but she would try to determine if there were any grounds for

relief from removal available to him, including legal marriage. The IJ informed

Touray: (1) of his right to have an attorney at his own expense; (2) of an available

list of affordable legal services providers; (3) that if he elected to represent himself,

he would be waiving his right to an attorney; and (4) he had a right to have

witnesses testify on his behalf and to present evidence, paperwork, or documents to

support his case. The IJ advised Touray that if he needed more time to get

witnesses, documents, or other evidence, she would grant him time at his request.

Touray affirmed that he understood all of his rights as explained by the IJ.


                                                3
              Case: 13-10655    Date Filed: 12/05/2013   Page: 4 of 12


      The IJ asked Touray whether he wanted additional time to speak to an

attorney or to his family. Touray declined the IJ’s offer and stated that he was

prepared to proceed with the hearing. Among other things, Touray agreed that he

was admitted to the United States for the purpose of attending Brookhaven

College, and that after December 2011, he had not attended the last semester of

college. Based on Touray’s admissions, the IJ found that Touray was removable

by clear and convincing evidence.

      The IJ then explored with Touray possible grounds for relief from removal.

Among other things, the IJ asked Touray about his marriage. Touray stated that he

had married a U.S. citizen before he was taken into custody, but that his wife had

not filed the necessary documents to allow him to remain in the country. Although

Touray said that he lived with his wife, he did not know his wife’s telephone

number or home address. In response to the IJ’s questions, Touray explained that

he knew the street name of his home, but that he was not good with numbers and

that he stored this type of information on his phone. The IJ found that Touray’s

marriage “ha[d] all the appearances of a fraudulent marriage,” and declined to

grant him voluntary departure “as a matter of discretion.” After confirming that

none of Touray’s immediate family was a U.S. citizen and that Touray did not fear

persecution or torture in Gambia, the IJ ordered Touray removed to Gambia, and

reserved Touray’s right to appeal the decision.


                                             4
              Case: 13-10655    Date Filed: 12/05/2013    Page: 5 of 12


C.    IJ’s Written Decision

      The BIA returned the case to the IJ for a written decision. The IJ’s written

decision found Touray removable for failing to comply with the conditions of his

student visa. The IJ explained that Touray was married to a U.S. citizen, but his

wife had not filed paperwork on his behalf to allow him to remain in the United

States, and Touray was unable to “spell her name, provide her phone number, or

provide her address.” Because the government had proved by clear and convincing

evidence that Touray was removable and Touray had neither applied for, nor

showed evidence of, his eligibility for any form of relief, the IJ ordered him

removed to Gambia.

D.    BIA Appeal

      Touray filed a pro se appeal to the BIA. Touray’s pro se brief argued that he

was unable to attend Brookhaven College because of financial issues that were

being resolved and that he did not concede removability. He also contested the IJ’s

finding that his marriage was fraudulent, noting that he correctly spelled his wife’s

name at the hearing. Touray stated that his wife was in the process of filing an I-

130 petition on his behalf and that he was unaware that he was supposed to provide

evidence of his marriage at the removal hearing.

      An attorney then filed an entry of appearance as Touray’s counsel and filed a

counseled brief. Touray’s counseled brief offered additional facts about Touray’s


                                             5
               Case: 13-10655       Date Filed: 12/05/2013      Page: 6 of 12


status as a student and his marriage. Touray’s counseled brief argued that Touray

“enrolled in and attended the 2011 Fall semester” at Brookhaven College, which

“ended in December 2011,” that Touray “could not attend classes in the 2012

Winter semester because he had not received the anticipated funds from his family

in Gambia,” but that he planned to attend “the 2012 Summer semester.” Touray’s

brief stated that he was married to a U.S. citizen on April 20, 2012 in Fulton

County, Georgia, and the couple lived in Austell, Georgia. Touray submitted a

copy of his marriage certificate.

       Touray’s counseled brief argued that his due process rights were violated

because the IJ failed to: (1) inform him of his right to counsel; (2) give him an

opportunity to continue the hearing so that he could develop his argument for relief

from removal; (3) give him a reasonable opportunity to present evidence of the

validity of his marriage; or (4) give him the required ten-day notice prior to the

July 30 master calendar hearing.1 Touray asked the BIA to remand his case so that

he could prove the legitimacy of his marriage.

E.     BIA’s Decision

       In a single-judge decision, the BIA dismissed Touray’s appeal. The BIA

rejected Touray’s argument that he should be excused from complying with the

terms of his admission because he could not afford to pay for tuition and planned

       1
       In light of the issues raised in Touray’s counseled brief, there is no merit to the
government’s contention that Touray failed to exhaust his due process claims before the BIA.
                                                   6
               Case: 13-10655       Date Filed: 12/05/2013       Page: 7 of 12


on re-enrolling the next semester. The BIA noted that Touray did not seek

alternative authorization to remain in the United States. The BIA found, based on

Touray’s admissions, that there was clear and convincing evidence that Touray

was removable.

       The BIA further agreed with the IJ that because Touray’s wife “ha[d] not

filed a visa petition on his behalf, no relief from removal [was] available, and

because he ha[d] not demonstrated that the marriage [was] bona fide, good cause

for a continuance to pursue approval of a visa petition was not shown.”

                                     II. DISCUSSION

A.     Due Process Claims

       Touray argues that his due process rights were violated because (1) he was

not given timely notice of his removal hearing, and (2) the IJ did not continue the

removal hearing to give Touray an opportunity to seek counsel and prepare for his

hearing.2

       In the immigration context, “[d]ue process requires that aliens be given

notice and an opportunity to be heard in their removal proceedings.” Lapaix v.

U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010). To establish a due process

violation, an alien must show both a deprivation of liberty without due process and

       2
         We review only the BIA’s decision, except to the extent the BIA adopted the IJ’s
opinion. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). We review
constitutional challenges, including alleged due process violations, de novo. Lapaix v. U.S.
Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010).
                                                   7
              Case: 13-10655     Date Filed: 12/05/2013   Page: 8 of 12


substantial prejudice. Garcia v. Att’y Gen. of U.S., 329 F.3d 1217, 1222 (11th Cir.

2003). “[T]he failure to receive relief that is purely discretionary in nature does

not amount to a deprivation of a liberty interest.” Scheerer v. U.S. Att’y Gen., 513

F.3d 1244, 1253 (11th Cir. 2008) (internal quotation marks omitted) (concluding

that adjustment of status and the decision to reopen or reconsider are discretionary

relief that cannot form the basis of due process violation). To show substantial

prejudice, the alien must show that the outcome would have differed “in the

absence of the alleged procedural deficiencies.” See Patel v. U.S. Att’y Gen., 334

F.3d 1259, 1263 (11th Cir. 2003).

      Here, Touray has not shown a due process violation. The record reflects that

Touray was given notice and an opportunity to be heard. Specifically, on July 26,

Touray was served by mail with notice of his master calendar hearing to be held on

July 30 at the detention center. See INA § 239(a)(1)(G)(i), 8 U.S.C.

§ 1229(a)(1)(G)(i) (requiring an alien be given written notice, either by mail or in

person, of the “time and place” of each hearing during removal proceedings).

Touray in fact appeared at that July 30 hearing, and the IJ gave Touray an

opportunity to testify and to present evidence on his behalf during the hearing.

      Touray claims that his hearing notice was not “timely” and that he did not

have sufficient opportunity to prepare for the hearing. However, at the July 30

hearing, the IJ advised Touray of his rights to counsel, to present witnesses, and to


                                              8
                Case: 13-10655        Date Filed: 12/05/2013       Page: 9 of 12


present evidence. The IJ expressly asked Touray whether he needed more time to

gather witnesses or evidence or to speak with his family or an attorney. Touray

declined and told the IJ he was prepared to proceed with the hearing. 3

       Touray then admitted to the IJ that he had failed to attend Brookhaven

College after December 2011, which was the charged basis for his removal. In

fact, Touray has never disputed that he violated the conditions of his student visa

by failing to continue to attend Brookhaven College. Touray’s admission

constituted clear and convincing evidence of his removability.

       More importantly, Touray admitted that his U.S.-citizen wife had not filed

any paperwork on his behalf that would allow him to remain in the United States.

Because Touray did not have a pending I-130 family-based visa petition, there was

no basis for the IJ to grant relief from removal on that basis. Under the




       3
         There is no statute or regulation requiring a hearing notice to be served ten days before
the hearing. Touray cites the Immigration Court Practice Manual, but that document does not
contain such a requirement either. Rather, the Practice Manual states that “[t]o allow the
respondent an opportunity to obtain counsel and to prepare to respond, at least ten days must
elapse between service of the Notice to Appear (Form I-862) on the respondent and the initial
master calendar hearing.” Immigration Court Practice Manual § 4.15(b). Consistent with the
Practice Manual, Touray was personally served with his NTA (Form I-862) on June 27, 2012,
more than a month before his master calendar hearing on July 30, 2012.
        Here, Touray’s NTA did not contain the date, time, and location of the master calendar
hearing. The Immigration Court subsequently mailed him a notice of hearing on July 26, 2012
with that information. The Practice Manual provides that “[i]f the Notice to Appear does not
contain notice of the date, time, and location of the initial master calendar hearing, the
respondent will be mailed a notice of hearing containing this information.” Id. § 4.15(c). The
Practice Manual does not contain a time requirement on the mailing of the notice of hearing. In
any event, Touray did appear at the hearing and declined a continuance.
                                                     9
              Case: 13-10655       Date Filed: 12/05/2013      Page: 10 of 12


circumstances, Touray has not shown that the outcome of his removal hearing

would have been different and, thus, that his due process rights were violated.

       In addition, to the extent that Touray argues that the IJ’s and the BIA’s

findings that his marriage was not bona fide violated his due process rights, Touray

had not filed an application for relief from removal based on his marriage, so these

findings did not affect the outcome of his removal proceedings.

       Touray further contends that the IJ should have continued the removal

hearing sua sponte so he could gather and present evidence that his marriage was

bona fide and pursue approval of an I-130 family-based visa petition. However,

the decision to grant a continuance is discretionary. See 8 C.F.R. § 1003.29

(providing that an IJ “may” continue removal proceedings “for good cause

shown”); see also In re Hashmi, 24 I. & N. Dec. 785, 788-89 (BIA 2009) (stating

that the IJ has “broad discretionary authority over continuances” and outlining

factors an IJ may consider when determining whether good cause exists to

continue removal proceedings to await adjudication of a pending I-130 family-

based visa petition). As such, Touray had no constitutionally protected liberty

interest in a continuance and cannot establish a due process violation based on the

IJ’s failure to continue the removal hearing. See Scheerer, 513 F.3d at 1253.4



       4
        Based on Scheerer, there is also no merit to Touray’s argument that his due process
rights were violated because the IJ’s decision was reviewed by a single member of the BIA. The
                                                 10
               Case: 13-10655       Date Filed: 12/05/2013       Page: 11 of 12


B.     Removability

       Touray also challenges the IJ’s finding that he is removable. 5 Touray argues

that he failed to attend classes at Brookhaven College after December 2011 only

due to his financial situation and that he intended to resume attending classes in the

summer of 2012.

       An alien who “is a bona fide student qualified to pursue a full course of

study and who seeks to enter the United States temporarily and solely for the

purpose of pursuing such a course of study” may be admitted as a nonimmigrant.

INA § 101(a)(15)(F)(i), 8 U.S.C. § 1101(a)(15)(F)(i); 8 C.F.R. § 214.2(f)(1). A

nonimmigrant student’s status continues as long as the student “is pursuing a full

course of study at an [approved] educational institution” and “is considered to be

maintaining status if he or she is making normal progress toward completing a

course of study.” 8 C.F.R. § 214.2(f)(5)(i). An alien who was admitted as a

nonimmigrant is removable if he fails “to maintain the nonimmigrant status in

which the alien was admitted . . . or to comply with the conditions of any such

status . . . .” INA § 237(a)(1)(C)(i), 8 U.S.C. § 1227(a)(1)(C)(1).




decision to assign a case to a three-member panel is discretionary. See 8 C.F.R. § 1003.1(e)(6)
(providing that cases “may” be assigned to a three-member panel under certain circumstances).
       5
      We review findings of fact, including findings of removability, for substantial evidence.
Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004).
                                                   11
             Case: 13-10655     Date Filed: 12/05/2013      Page: 12 of 12


      Here, substantial evidence supports the IJ’s finding that Touray was

removable under INA § 237(a)(1)(C)(i), 8 U.S.C. § 1227(a)(1)(C)(1), for failing to

maintain the conditions of his nonimmigrant student status. It is undisputed that

Touray was admitted to the United States on a student visa to attend Brookhaven

College and that in December 2011 Touray stopped attending Brookhaven College.

In other words, Touray was not “pursuing a full course of study,” as required to

maintain his status as a nonimmigrant student. See 8 C.F.R. § 214.2(f)(5).

Although Touray offers his inability to pay tuition as an excuse for his

noncompliance, his financial situation does not alter his immigration status or the

conditions of that status. Further, there is no evidence that Touray obtained

alternative authorization to remain in the United States.

      In sum, Touray failed to show any due process violations, and substantial

evidence supports the finding that Touray is removable.

      PETITION DENIED.




                                             12
