Verdi v. Attorney Gen. of the United States, 14-1438
| Decision Date | 02 July 2014 |
| Docket Number | No. 14-1438,14-1438 |
| Parties | JOSE ORLANDO TITO VERDI, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
On Petition for Review of an Order of the
Board of Immigration Appeals
Immigration Judge: Honorable Leo Finston
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 1, 2014
Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges
Jose Orlando Tito Verdi petitions for review of a final order of removal. For the following reasons, we will deny the petition.
Verdi, a native and citizen of Peru, entered the United States in 2006 and overstayed his visa. The Government started removal proceedings on that basis in 2013.See 8 U.S.C. § 1227(a)(1)(B). Verdi chose to represent himself in the proceedings after being advised by the Immigration Judge (IJ) of his rights and receiving a list of legal service providers.1 Administrative Record ("A.R.") at 64-65. Verdi conceded that he was removable as charged and did not apply for any relief. In addition, Verdi did not identify any potential grounds for relief after being questioned by the IJ. He testified that: (1) he had not been mistreated in Peru and did not fear returning there; (2) he is not married and has no children; (3) no petition had ever been filed on his behalf; and (4) his parents have no legal status in the United States. Id. at 67-68. After Verdi testified that he had been assaulted by thieves and the police in the United States, the IJ asked if he had cooperated in any investigation or prosecution, and Verdi testified that he had not. Id. at 68-69. At that point, the IJ noted that Verdi appeared to be eligible only for voluntary departure, but Verdi declined because he could not accomplish the necessary steps. Id. at 69, 72-73. Ultimately, the IJ found Verdi removable based on his factual admissions and concession of removability. The IJ ordered Verdi's removal, concluding that he was not eligible for any form of relief, including a U visa.
On appeal to the Board of Immigration Appeals ("BIA"), Verdi asked for his removal to be cancelled and his case remanded to a state court because he believed that his immigration proceedings had been "rushed" due to state police officers fearing that hewould file a lawsuit against them. The BIA concluded that the allegation was not germane to removability or relief therefrom and affirmed the IJ's decision because Verdi had not satisfied his burden to establish eligibility for relief. The present petition for review followed.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Where, as here, the BIA issues its own decision on the merits, we review that decision and consider the IJ's ruling "only insofar as the BIA deferred to it." Roye v. Att'y Gen., 693 F.3d 333, 339 (3d Cir. 2012). We review the agency's factual findings for substantial evidence. Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003). This is a deferential standard, and the "BIA's determination will not be disturbed unless any reasonable adjudicator would be compelled to conclude to the contrary." Yu v. Att'y Gen., 513 F.3d 346, 348 (3d Cir. 2008) (internal quotation marks omitted).
Verdi was charged with being removable under 8 U.S.C. § 1227(a)(1)(B) for staying in the United States longer than permitted by his visa. During the immigration proceedings, Verdi admitted that he: (1) is a native and citizen of Peru; (2) was admitted to the United States as a temporary visitor in 2006 with authorization to remain until May 4, 2007; and (3) remained in the United States after that date without authorization. He also conceded that he was removable as charged. Verdi has not challenged this determination. We conclude that substantial evidence supports the determination that Verdi is removable pursuant to 8 U.S.C. § 1227(a)(1)(B) .
As for relief from removal, the burden of proof to establish eligibility for it rests upon the alien. See 8 U.S.C. § 1229a(c)(4). In this case, Verdi did not apply for relief. Nor did he establish any potential basis for it through his testimony, despite the IJ's inquiries on the subject. Accordingly, we conclude that substantial evidence supports the determination that Verdi did not establish eligibility for relief from removal.
On appeal, Verdi raises a due process challenge to aspects of the immigration proceedings. He contends that his rights were violated when: (1) immigration proceedings were initiated before "his criminal case was resolved;" (2) the IJ failed to find out why he could not meet the conditions for voluntary departure; and (3) the IJ failed to advise him of his right to a U visa.2 To the extent that Verdi argues that he was deprived of a fundamentally fair hearing, we conclude that the claim fails because he has not demonstrated that he was substantially prejudiced. See, e.g., Khan v. Att'y Gen., 448 F.3d 226, 236 (3d Cir. 2006) () (quoting Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997)).
Regarding the first claim, Verdi states that the "outcome of his criminal case will impact his eligibility for relief in his immigration...
To continue reading
Request your trial