           Case: 15-10007   Date Filed: 04/27/2016   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 15-10007
                         Non-Argument Calendar
                       ________________________

                        Agency No. A206-799-106



JIE ZHU,

                                                                       Petitioner,

                                 versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

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

                             (April 27, 2016)

Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 15-10007    Date Filed: 04/27/2016    Page: 2 of 10


      Jie Zhu is a native and citizen of the People’s Republic of China (“China”)

who claims that he will suffer persecution for his Christian faith if he is sent back.

An immigration judge (“IJ”) ordered Zhu’s removal to China after finding that he

abandoned his application for asylum by failing to file it on time. The Board of

Immigration Appeals (“BIA”) affirmed the IJ’s finding of abandonment and denied

Zhu’s motion to remand the case for consideration of his then-completed asylum

application. Zhu petitions this Court for review, arguing that he was denied a full

and fair opportunity to present his claim for relief from removal and that he did not

willfully abandon his asylum application. He contends that he should have been

given more time to present his case because he was uninformed, did not understand

that he had to submit an application, could not find anyone to assist him, did not

speak English, and was not given a realistic opportunity to have an attorney

represent him. After careful review, we deny the petition for review.

                                          I.

      Zhu entered the United States without authorization on June 8, 2014. One

month later, Zhu was served with a Notice to Appear, charging him as removable

under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for being an immigrant who, at the time of

application for admission, was not authorized to enter the United States.

      Zhu appeared five times before an IJ in connection with his removal

proceeding. At each hearing, the IJ telephonically obtained a Mandarin interpreter


                                          2
             Case: 15-10007     Date Filed: 04/27/2016   Page: 3 of 10


for Zhu. At no point did Zhu express that he was unable to understand the

interpreter. At all times, Zhu was detained at a facility in Lumpkin, Georgia.

      In total, the IJ continued Zhu’s case three times to allow him to obtain

representation. Zhu first appeared before an IJ on July 23, 2014, and asked for

time to talk to an attorney. At the second hearing (July 30), Zhu stated he had

obtained an attorney, but the attorney did not make an appearance. At the third

hearing (August 14), Zhu again appeared without an attorney. The IJ warned Zhu

that he would have one last setting for his attorney to appear on Zhu’s behalf, and

that if his attorney did not do so, the IJ would “start working on [Zhu’s] case.”

(Administrative Record (AR) at 111). When no attorney made an appearance at

Zhu’s fourth hearing (August 20), the IJ proceeded to question Zhu under oath and,

based on his responses, found him removable to China for entering the United

States without authorization.

      After finding Zhu removable, the IJ questioned Zhu to determine if he was

eligible for any relief from removal. Zhu responded that he was afraid to return to

China because he had been beaten for practicing Christianity and that was why he

left. The IJ gave Zhu an application for asylum and directed him to go to “Catholic

Charity,” an organization that, according to the IJ, was in the detention facility

several times a week and could help Zhu to fill out the application. Zhu indicated

that he understood.


                                         3
              Case: 15-10007     Date Filed: 04/27/2016   Page: 4 of 10


      The IJ informed Zhu that he would come back for a hearing on September 3,

and that “the Court wants to see if that application has been filled out” at that time.

(AR at 120). The IJ further stated that there would be “no more delay,” and that if

the asylum papers “are not filled out we are going to send you back to China.”

(AR at 120-21). Zhu, through an interpreter, stated that he understood.

      At the fifth and final hearing (September 3), Zhu did not have an attorney

and had not filled out the asylum application. When the IJ told him he was

supposed to file the asylum documents that day, Zhu responded that he did not

know how to write or fill out the application. The IJ summarized the procedural

history of the case, stating that Zhu had been told to take the application to

Catholic Charity, which “would find you someone who spoke Mandarin to help

you fill out your form.” (AR at 124-25). Further, the IJ stated, “The Court also

warned you about not filing your papers today. As you have not filed your

paperwork today, the Court is ordering you to be returned to China.” (AR at 125).

Accordingly, the IJ ordered Zhu removed to China.

      Following the final hearing on September 3, 2014, Zhu obtained counsel and

appealed the IJ’s decision to the BIA. The BIA received Zhu’s appeal package on

September 22, 2014. Zhu submitted a completed asylum application with his

appeal and asked the BIA to remand his case to the IJ for consideration of the

merits of his claims.


                                          4
               Case: 15-10007      Date Filed: 04/27/2016    Page: 5 of 10


      In his brief to the BIA, Zhu argued that the IJ should have given him

additional time to file for relief because he was detained, did not have the benefit

of counsel, did not understand the IJ’s instructions, and did not intend to abandon

his asylum application. Zhu also contended that the IJ denied him his due-process

right to a full and fair hearing. On the merits of his claims, Zhu argued that he was

likely to succeed if given the opportunity to present his case.

      The BIA affirmed the IJ’s decision, denied Zhu’s motion for remand, and

dismissed the appeal. The BIA upheld the IJ’s finding of abandonment as follows:

               The regulations provide that the [IJ] may set and extent
               time limits for the filing of applications for relief. In this
               case, the [IJ] continued the respondent’s case on four
               occasions to allow the respondent to apply for all forms
               of relief for which he was eligible. The [IJ] advised the
               respondent that she would consider any application for
               relief abandoned if not filed within the deadline. At the
               fifth and final hearing, the [IJ] ordered the respondent
               removed, because he did not submit an application for
               relief. According to regulations, if the application is not
               filed within the time set by the [IJ], the opportunity to file
               the application shall be deemed waived. Hence, we find
               no basis to remand this case for consideration of the
               respondent’s asylum claim.

(AR at 7) (citations omitted). The BIA also rejected Zhu’s argument that his due-

process rights had been violated, finding that he had been given notice and an

opportunity to obtain counsel for his removal proceeding and to file an asylum

application.

      Zhu timely petitioned this Court for review.
                                             5
              Case: 15-10007    Date Filed: 04/27/2016    Page: 6 of 10


                                         II.

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

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

257 F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA adopted the IJ’s finding of

abandonment, so we review that decision as well. See id.

      We review for an abuse of discretion an IJ’s decision that an immigration

application was abandoned as untimely under 8 C.F.R. § 1003.31(c). See Tang v.

U.S. Att’y Gen., 578 F.3d 1270, 1276 (11th Cir. 2009) (“We conclude that the IJ’s

decision to exclude evidence offered for submission after a court-ordered filing

deadline is discretionary.”); Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1306 n.3

(11th Cir. 2009) (holding that an IJ did not abuse its discretion in refusing to admit

evidence after a deadline imposed under 8 C.F.R. § 1003.31(c)). Accord Taggar v.

Holder, 736 F.3d 886, 889 (9th Cir. 2013); Moreta v. Holder, 723 F.3d 31, 33-34

(1st Cir. 2013). We likewise review the BIA’s denial of Zhu’s motion to remand

for an abuse of discretion. Cf. Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1286

(11th Cir. 2008) (BIA’s denial of motions to reconsider, reopen, or remand

generally reviewed for abuse of discretion).

      “Our review is limited to determining whether there has been an exercise of

administrative discretion and whether the matter of exercise has been arbitrary or




                                          6
             Case: 15-10007     Date Filed: 04/27/2016   Page: 7 of 10


capricious.” Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir.

2008) (quoting Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005)).

      We review de novo claims of due-process violations in removal proceedings.

Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010).

                                        III.

      Zhu contends that he was denied a realistic opportunity to present his claim

for asylum, asserting that he was uninformed, did not speak English, did not

understand that he had to submit the application, and was not given sufficient time

to obtain representation or apply for relief. He also argues that he was likely to

succeed on the merits of his claims.

      The Fifth Amendment entitles petitioners in removal proceedings to due

process of law, which requires that petitioners “be given notice and an opportunity

to be heard in their removal proceedings.” Lapaix, 605 F.3d at 1143; see Ali v.

Mukasey, 529 F.3d 478, 490 (2d Cir. 2008) (due process requires “the opportunity

to be heard at a meaningful time and in a meaningful manner”) (quotation

omitted). To obtain relief based on a due-process violation, the petitioner must

show both (1) a violation of due process and (2) substantial prejudice. Lapaix, 605

F.3d at 1143. To show substantial prejudice, the petitioner “must demonstrate that,

in the absence of the alleged violations, the outcome of the proceeding would have

been different.” Id.


                                         7
                Case: 15-10007   Date Filed: 04/27/2016    Page: 8 of 10


      Federal regulations provide an IJ with administrative control over a removal

hearing. Tang, 578 F.3d at 1276 (citing 8 C.F.R. § 1003.31(c)); see Moreta, 723

F.3d at 34 (“The regulations governing removal proceedings invest IJs with broad

authority to impose deadlines for court filings.          This authority reflects the

government’s strong interest in the orderly and expeditious management of

immigration cases.”) (internal quotation marks omitted). The regulations state that

“[t]he Immigration Judge may set and extend time limits for the filing of

applications and related documents and responses thereto, if any.”          8 C.F.R.

§ 1003.31(c).

      “If an application for relief is not filed by the deadline set by the IJ, that

ground for relief is deemed waived.” Makir-Marwil v. U.S. Att’y Gen., 681 F.3d

1227, 1235 (11th Cir. 2012); 8 C.F.R. § 1003.31(c). The BIA has long held that

applications for relief from removal “are properly denied as abandoned when the

alien fails to timely file them.” Matter of R–R–, 20 I. & N. Dec. 547, 549 (BIA

1992). And we have held that an alien “does not have a constitutionally protected

liberty interest in the admission of evidence after the court-ordered deadline” and

“cannot establish a due process violation based on the IJ’s adverse decision” in that

respect. Tang, 578 F.3d at 1276.

      Based on the record before us, we cannot conclude that the IJ abused her

considerable discretion in finding that Zhu abandoned his asylum application by


                                          8
             Case: 15-10007     Date Filed: 04/27/2016   Page: 9 of 10


failing to take any action with respect to it by September 3. See Moreta, 723 F.3d

at 34. Considered as a whole and in context, the IJ’s statements adequately

informed Zhu that he faced a deadline to file his asylum application by September

3. When the IJ continued the hearing to September 3, she stressed that there would

be no delay (after several previous delays) and that if Zhu did not fill out the

asylum application, he would be sent back to China.          Zhu indicated that he

understood, and he made no attempt to clarify what the IJ meant or to ask for

additional time. Then, when he appeared before the IJ at the September 3 hearing

without having filled out the asylum application, Zhu did not indicate whether he

had attempted to contact Catholic Charity or taken any steps to complete the

asylum application.

      Under these circumstances, we are unable to conclude that the IJ abused her

discretion in finding that Zhu abandoned his claims for relief by failing to file his

application within the court-ordered period. See Tang, 578 F.3d at 1276. See, e.g.,

United States v. Campbell, 491 F.3d 1306, 1310 (11th Cir. 2007) (“In applying the

abuse of discretion standard, we recognize that a district court has a range of

choice[,] . . . and so long as its decision does not amount to a clear error of

judgment we will not reverse even if we would have gone the other way had the

choice been ours to make.”) (internal quotation marks omitted).




                                         9
             Case: 15-10007    Date Filed: 04/27/2016   Page: 10 of 10


      Likewise, the BIA did not abuse its discretion in denying Zhu’s motion to

remand. We cannot say that the BIA’s decision was “arbitrary or capricious,” see

Montano Cisneros, 514 F.3d at 1226, in light of the IJ’s discretion to manage

administrative deadlines in the cases before it and to decide, in its discretion, to

deem abandoned an application not filed by a court-ordered deadline. See Makir-

Marwil, 681 F.3d at 1235; Tang, 578 F.3d at 1276.

      For similar reasons, Zhu has not shown that his due-process rights to a full

and fair hearing were violated. Zhu did not have a constitutionally protected

liberty interest in the admission of his application for asylum after the court-

ordered deadline. See Tang, 578 F.3d at 1276. Furthermore, the IJ continued

Zhu’s removal hearing several times to give him the opportunity to obtain an

attorney, and although he represented that he had found one, no attorney ever filed

a notice of appearance. In addition, for reasons explained above, Zhu was given

constitutionally adequate notice of his opportunity to file an asylum application

and of his deadline to file. Under the circumstances, we are unable to conclude

that Zhu was deprived of the “the opportunity to be heard at a meaningful time and

in a meaningful manner.” See Ali, 529 F.3d at 490.

      Accordingly, we deny the petition for review.

      PETITION DENIED.




                                        10
