Roy v. Ashcroft

• Citation: 389 F.3d 132
• Decision Date: 20 October 2004
• Docket Number: No. 03-60789.,03-60789.
• Parties: David ROY, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

389 F.3d 132

David ROY, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 03-60789.

United States Court of Appeals, Fifth Circuit.

October 20, 2004.

COPYRIGHT MATERIAL OMITTED

Roy Kevin Petty (argued), Dallas, TX, for Petitioner.

Madeline Henley (argued), Trial Atty., U.S. Dept. of Justice, Washington, DC, David V. Bernal, Thomas Ward Hussey, Director, U.S. Dept. of Justice, Office of Immigration Litigation, Washington, DC, Anne M. Estrada, U.S. Immigration & Naturalization Service, Dallas, TX, Caryl G. Thompson, U.S. Immigration & Naturalization Service, New Orleans, LA, for Respondent.

John Aschroft, U.S. Dept. of Justice, Washington, DC, Pro se.

Petition for Review of an Order of the Board of Immigration Appeals

Before DeMOSS, DENNIS and CLEMENT, Circuit Judges.

PER CURIAM:

Petitioner David Roy ("Roy") seeks review of an order of the Board of Immigration Appeals ("BIA") denying his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). For the following reasons, we deny his petition for review.

BACKGROUND

Roy is a 23-year-old native and citizen of India who was admitted to the United States on May 23, 1999, as a nonimmigrant with authorization to remain for a temporary period not to exceed November 22, 1999. On August 2, 2000, the Immigration and Naturalization Service ("INS") issued a Notice to Appear, charging Roy with being subject to removal as an alien admitted as a nonimmigrant who remained for a longer time than permitted. 8 U.S.C. § 1182(a)(6)(A)(1). At a hearing on August 24, 2000, Roy admitted he remained beyond the date permitted by the INS; the Immigration Judge ("IJ") found Roy's removability was established by clear and convincing evidence.

Roy filed an asylum application dated October 6, 2000.¹ The IJ considered the Roys' respective applications for relief at a hearing on January 22, 2001. Roy and his parents represented themselves. At this hearing, Roy testified that in 1998, when he was in high school, some Hindu and Sikh boys from his school expressed animosity toward him because he was Christian and hit him with sticks and kicked him. Roy suffered no broken bones, though he still experiences physical pain. Roy completed his schooling in March 1999 and received his high school diploma.

The IJ found each of the Roys had filed a frivolous asylum application and denied their applications. Upon de novo review, the BIA issued a decision on August 28, 2003, reversing the IJ's findings of frivolousness as to all the Roys; granting Roy's father's asylum application and Roy's mother's derivative application; and denying Roy's asylum application as untimely because it was filed outside the one-year deadline and Roy did not demonstrate changed circumstances which materially affected his eligibility for asylum or extraordinary circumstances related to his delay in filing. The BIA noted that even if the application had been timely filed, Roy had not established either past persecution or a well-founded fear of persecution. The BIA also denied Roy's applications for withholding of removal and relief under the CAT but granted him voluntary departure.

Roy filed a timely petition for review in this Court on September 26, 2003. That same day, Roy also filed a motion to reissue the opinion and a motion to reopen/consider with the BIA. Roy claimed the BIA had addressed its decision to another attorney and that his counsel did not receive the decision until September 24, 2003. Roy also argued that he was entitled to an exception from the one-year period for filing asylum applications.

The BIA noted the mismailing and determined that Roy's counsel did not receive the order in time to comply with the requirements for voluntary departure. The BIA reissued its decision on December 16, 2003, and again on January 21, 2004, and stated it would "treat it as if it had been entered on today's date." The BIA declined to reconsider its timeliness decision. Roy did not file a petition for review from either of the BIA's reissued orders.

DISCUSSION

This Court has jurisdiction to review final orders of removal. 8 U.S.C. § 1252(a) & 1252(b).² Section 1252(b)(1) states: "The petition for review must be filed not later than 30 days after the date of the final order of removal." Id. § 1252(b)(1). Section 1252(b)(6) states: "When a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order." Id. § 1252(b)(6).

I. Whether this Court has jurisdiction to consider Roy's petition.

As an initial matter, Respondent argues that this Court does not have jurisdiction to consider Roy's petition for review because the BIA reissued its decision and Roy did not file a new petition for review of either of the reissued decisions. Roy contends that this Court has proper jurisdiction because he filed a timely petition for review of the BIA's original decision and the reissuances did not divest this Court of jurisdiction.

The parties dispute the applicability of Firmansjah v. Ashcroft, 347 F.3d 625 (7th Cir.2003). In Firmansjah, the petitioner claimed she did not receive notice of the BIA's decision within the 30-day period for seeking judicial review and requested the BIA reissue its decision. 347 F.3d at 626. The BIA reissued the order, stating that the reissued decision "shall be treated as entered as of today's date." Id. The Seventh Circuit determined that the BIA had authority to reissue its decision and thus extend the time for a petitioner to seek judicial review. Id. at 626-27. The Seventh Circuit found it had jurisdiction. Id. at 627.

Respondent argues that each reissued order here, as in Firmansjah, stated it would be treated as if newly entered. Therefore, the most recently reissued decision is the final order of removal and this Court lacks jurisdiction because Roy's petition for review is directed only to the BIA's original decision. Roy contends Firmansjah is not applicable because he, unlike Firmansjah, timely petitioned for review of the BIA's original order. Roy notes that the BIA reissued its decision in response to his motion and argues the reissued decisions are "consolidated" with the petition for review under § 1252. Further, if the BIA is permitted to divest this Court of jurisdiction over a properly filed petition for review by reissuing a decision, the BIA has gained a "powerful tool" over this Court.

This Circuit has not previously considered this jurisdictional question. Here, Roy certainly appealed the BIA's original order of removal issued on August 28, 2003, within the 30-day deadline required by § 1252(b)(1). The same day Roy petitioned for review, on September 26, 2003, he also moved the BIA to reissue due to the mismailing and late receipt, and to reopen/reconsider its decision of removal. Based on the language of § 1252, on September 26, 2003, jurisdiction had vested in this Court over the BIA's August 28, 2003, order of removal. Moreover, any review Roy had sought of the denial of the motion to reopen/reconsider with the BIA would have been consolidated with the petition for review under § 1252(b)(6).³

When the BIA reissued its decision on December 16, 2003, and again on January 21, 2004, it noted the circumstances of the mismailing and chose to equitably reissue the order specifically so Roy would be able to timely comply with the requirements for voluntary departure, as had been ordered in the BIA's original decision. Unlike in Firmansjah, where the BIA "enter[ed] a new removal order, which is subject to a fresh petition for review," 347 F.3d at 627, the BIA here did not need to equitably restart the 30-day clock for Roy to timely petition for review. Thus, the BIA did not enter a new removal order but only reissued its prior removal order for the equitable purpose of allowing Roy to timely comply with the requirements of voluntary departure. Therefore, this Court was not divested of jurisdiction over Roy's timely filed petition for review of the BIA's original removal order when the BIA chose to reissue its decision for the equitable purpose of allowing Roy to timely comply with the requirements for voluntary departure.

II. Whether this Court can review Roy's "due process" claim.

Roy argues that his hearing before the IJ was fundamentally unfair such that it violated his due process rights under the Fifth Amendment. Roy contends the IJ failed to advise him of his rights and did not provide him with a reasonable opportunity to question his mother or to explain the dangers he would face if returned to India. Respondent maintains that this Court lacks jurisdiction with respect to this issue because Roy failed to raise this argument before the BIA.

Roy admits that the due process issues were not raised directly before the BIA. However, Roy maintains that he raised them indirectly by including a discussion of the IJ's failure to elicit additional information from the applicants and to afford them an opportunity to account for discrepancies or implausibilities in their stories.⁴

Judicial review of a final order of removal is available only where the applicant has exhausted all administrative remedies of right. 8 U.S.C. § 1252(d)(1). Failure to exhaust an issue creates a jurisdictional bar as to that issue. Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir.2001). "An alien fails to exhaust his administrative remedies with respect to an issue when the issue is not raised in the first instance before the BIA — either on direct appeal or in a motion to reopen." Id. at 452-53 (citing Goonsuwan v. Ashcroft, 252 F.3d 383, 388-89 (5th Cir.2001)). Claims of due process violations, except for procedural errors that are correctable by the BIA, are generally not subject to the exhaustion requirement. Anwar v. INS, 116 F.3d 140, 144 n. 4 (5th Cir.1997). In Anwar, the petitioner's challenge to the federal...