Gupta v. U.S. Attorney Gen.

• Decision Date: 25 March 2020
• Docket Number: No. 18-15203,18-15203
• Parties: ANESH GUPTA, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

ANESH GUPTA, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 18-15203

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

March 25, 2020

[DO NOT PUBLISH]

Non-Argument Calendar

Agency No. A078-865-787

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

Before WILSON, LAGOA, and TJOFLAT, Circuit Judges.

PER CURIAM:

Anesh Gupta is a serial litigant¹ who has endeavored for years to avoid deportation. Proceeding pro se here, he petitions for review of the final order of the Board of Immigration Appeals ("BIA") dismissing his appeal from an Immigration Judge's ("IJ") removal order for overstaying his visa under § 237(a)(1)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(1)(B). On appeal, as best we can discern, he makes six separate arguments. He first argues that the IJ lacked jurisdiction to conduct his removal proceedings because he received a notice to appear ("NTA") that did not list the time and place of his removal hearing. Second, he argues that the administrative record is incomplete for review. Third, he contends that the IJ erred by failing to inform him of any potential eligibility for relief from removal or adjustment of his immigration status. Fourth, he challenges the sufficiency of the evidence supporting the BIA's determination that he was removable for overstaying his visa. Fifth, he asserts that the IJ abused its discretion by refusing to continue his removal proceedings to await adjudication of his Form I-751 Petition to Remove Conditions of Legal Permanent Residence ("Form I-751") by the U.S. Citizenship and Immigration Service ("USCIS"). Finally, he argues that the IJ erred by refusing toissue a subpoena for page one of his Form I-181 Creation of Record of Lawful Permanent Resident ("Form I-181").

I.

First, we turn to Gupta's argument that the IJ lacked jurisdiction to conduct his removal proceedings because Gupta's NTA did not list the time and place of his removal hearing. Normally, we lack jurisdiction to consider a claim raised in a petition for review "unless the petitioner has exhausted his administrative remedies with respect thereto." Amaya-Artunduaga v. U.S. Att'y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006); 8 U.S.C. § 1252(d)(1). Gupta did not raise this argument before the BIA, so he has not exhausted his administrative remedies. However, we have, in the past, entertained jurisdictional arguments on appeal because they implicate our own jurisdiction, see Perez-Sanchez v. U.S. Att'y Gen., 935 F.3d 1148, 1153 (11th Cir. 2019) (stating that "we would have no jurisdiction to entertain" a petition for review if "the agency never had jurisdiction over [the] removal proceedings to begin with"); Patel v. U.S. Att'y Gen., 334 F.3d 1259, 1262 (11th Cir. 2003) ("[W]e have jurisdiction to determine our own jurisdiction."), so we will do so here.

Gupta claims that Pereira v. Sessions, 138 S. Ct. 2105 (2018), supports his argument that the IJ lacked jurisdiction. The Pereira Court held that a NTA does not meet the criteria of 8 U.S.C. § 1229(a), and does not trigger the stop-time rulethat was at issue in that case, if the NTA fails to include the time and place of the noncitizen's removal proceedings. Id. at 2113-14. Because his NTA did not include the time or place for his hearing as specified in § 1229(a), Gupta claims that removal proceedings were never validly initiated against him, and the IJ had no jurisdiction to conduct such proceedings. We recently rejected an identical argument in Perez-Sanchez v. U.S. Attorney General, where we stated that "the regulation and the statute" governing "the service or filing of an NTA" set forth "only claim-processing rules," not jurisdictional rules. 935 F.3d at 1153. We held that "neither 8 U.S.C. § 1229(a) nor 8 C.F.R. § 1003.14 speaks to jurisdiction," and therefore the "IJ and the BIA properly exercised jurisdiction" over the removal proceedings. Id. at 1157. The same circumstances are present here. Gupta's jurisdictional argument is without merit.

II.

Next, we turn to Gupta's argument that the record preserved from his removal proceedings is incomplete in violation of 8 U.S.C. § 1229a(b)(4)(C). We do not reach questions raised in a petition for review that the BIA has not yet properly addressed in the first instance because we lack jurisdiction to do so. 8 U.S.C. §1252(d) ("A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right.") A petitioner fails to exhaust her administrative remedies with respect to a particularclaim when she does not raise that claim before the BIA. Amaya-Artunduaga, 463 F.3d at 1250. To exhaust a claim, a petitioner must have previously argued "the core issue now on appeal" before the BIA in a manner sufficient to allow the BIA to adequately review the claim and correct any errors below, including by providing the BIA with the factual underpinnings of the argument if applicable. Indrawati v. U.S. Att'y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015) (internal quotations omitted).

Here, we lack jurisdiction over Gupta's claim that the administrative record is incomplete for review as he did not raise that argument before the BIA and therefore failed to administratively exhaust it. Accordingly, we dismiss Gupta's petition with respect to this claim.

We reach a similar result with respect to Gupta's argument that the IJ violated 8 C.F.R. § 1240.11(a)(2), and his due process rights, by failing to inform him of eligibility for relief from removal or adjustment of his immigration status. Gupta raised this issue before the BIA, but merely stated in conclusory fashion that "[t]he IJ did not inform [him] of any relief from removal for which he may have been eligible."² This single sentence that merely states the regulatory standard Gupta claims was violated is insufficient to establish that Gupta administrativelyexhausted this argument before the BIA because the BIA did not have an opportunity to meaningfully review it. See Indrawati, 779 F.3d at 1297 ("Unadorned, conclusory statements do not satisfy [the exhaustion] requirement.") Accordingly, we also lack jurisdiction to review this claim, and so we must dismiss it.

III.

Next, we review Gupta's argument that there was insufficient evidence to support the agency's³ determination that he was removable for overstaying his visa. Specifically, Gupta claims that he has proven that he was granted an adjustment of his immigration status to that of a permanent resident, and that the government has been unable to rebut that proof and establish his removability.

An alien is removable if he is present in the United States in violation of the INA or any other law of the United States, or whose nonimmigrant visa or other documentation authorizing admission into the United States has been revoked. 8 U.S.C. § 1227(a)(1)(B). The government bears the burden of presenting clear and convincing evidence that the alien is removable. 8 U.S.C. § 1229a(c)(3)(A). Onpetition for review, we scrutinize the agency's findings of fact "under the highly deferential substantial evidence test." Silva v. U.S. Att'y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (internal quotations omitted). Under this standard of review, we may not "reweigh the evidence from scratch," and will reverse the agency's findings of fact only when any reasonable adjudicator would have been compelled to conclude to the contrary. Id. (internal quotations omitted).

Here, substantial evidence supports the agency's determination that Gupta was removable, as he overstayed his visitor visa and his application for permanent resident status based on his marriage to Schultz was denied. The IJ heard evidence that Gupta entered the United States in 2001 on a B1/B2 visitor's visa, with an expiration date of June 16, 2002, which Gupta does not dispute. The IJ, and the BIA on appeal, considered evidence that both Gupta's Form I-130 (Petition for Alien Relative) and Form I-485 (Application to Register Permanent Residence or Adjust Status) had been denied by the USCIS, indicating that Gupta did not qualify for a status adjustment that would render him non-removable after his visa expired.⁴ The agency considered supporting documentary evidence, including: (1) USCIS's notice of intent to deny Gupta's I-130 petition, (2) Gupta's form I-181 toestablish his status as a lawful permanent resident, stamped "DENIED," (3) Gupta's I-130 petition, stamped "DENIED," (4) Gupta's I-485 application for status adjustment, stamped "DENIED," and (5) formal letters to Gupta and his spouse indicating that both the I-130 and I-485 applications were denied due to evidence that his marriage was not in good faith and was intended to circumvent immigration laws. Additionally, the IJ heard testimony from Officer McCormick, the USCIS officer to whom Gupta's case was assigned; Officer McCormick testified that she had denied all of the aforementioned petitions because she believed Gupta had engaged in marriage fraud. The agency ordered Gupta removed to India after considering all this evidence, presented over eight years of removal proceedings and seventeen hearings before various IJs. We find that, based on this record, substantial evidence supports the agency's conclusion that Gupta was removable.⁵ Thus, we deny Gupta's petition with respect to this claim.

IV.

Next, we turn to Gupta's claim that that the IJ violated his rights under 8 U.S.C. § 1229a(b)(4)(B) by preventing Gupta from having a reasonableopportunity to present evidence on his own behalf. He claims that the IJ did so by refusing to grant a continuance of Gupta's removal proceedings to await adjudication of his I-751 petition by the USCIS. We note that Gupta's I-751 petition has already been rejected by the USCIS and the "adjudication" he awaits is the conclusion of a lawsuit, currently pending on appeal before this Court, asking the Court to grant a writ of mandamus compelling the USCIS to accept and...