Mario Roldan v. Atty Gen USA

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MANDATE ISSUED, filed.

Mario Roldan v. Atty Gen USA

Doc. 0 Att. 1

Case: 09-1481

Document: 003110209805

Page: 1

Date Filed: 07/08/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-1481 ___________ M A R IO ROLDAN, P e titio n e r v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent ____________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A079-697-526) Im m ig ratio n Judge: Honorable Margaret Reichenberg ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) M a y 12, 2010 B e f o re : SLOVITER, JORDAN and GREENBERG, Circuit Judges (O p in io n filed: May 17, 2010) ___________ O P IN IO N ___________ P E R CURIAM M a rio Roldan petitions for review of an order of the Board of Immigration A p p e a ls ("BIA") affirming the Immigration Judge's ("IJ") order of removal. The A tto rn e y General has filed a motion to dismiss the petition for lack of jurisdiction. For

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Case: 09-1481

Document: 003110209805

Page: 2

Date Filed: 07/08/2010

th e reasons that follow, we will grant the Attorney General's motion and dismiss the p e titio n for review in part and deny it in part. P e titio n e r, Mario Roldan, is a native and citizen of Colombia. He entered the U n ite d States in June 1998 and overstayed his visa. On April 23, 2001, he married a U n ite d States citizen who petitioned for, and received, conditional permanent resident s ta tu s for her husband. In June 2003, Roldan filed for divorce. After the final judgment o f divorce was entered in October 2003, he filed a request for a discretionary waiver of th e requirement to file a joint petition to remove the conditional basis of his permanent re sid e n t status under INA § 216(c)(4)(B). See 8 U.S.C. § 1186a(c)(4)(B). His a p p lic a tio n was denied, and his conditional permanent resident status was terminated on J u n e 10, 2006. Roldan was then placed into removal proceedings, at which time he re n e w e d his waiver application. The IJ denied his application, concluding that Roldan h a d failed to meet his burden of proving that his marriage was entered into in good faith. The BIA affirmed and dismissed his appeal. After Roldan timely filed a petition for re v ie w , the parties were asked to address this Court's jurisdiction to review the denial of th e waiver pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii). In response, the Attorney General m o v e d to dismiss for lack of jurisdiction. R o ld a n raises two issues on appeal: first, that the IJ violated his Fifth Amendment rig h t to a full and fair hearing by failing to act as a neutral factfinder, failing to consider a ll relevant testimony, and setting a hostile tone; and second, that the BIA abused its

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Case: 09-1481

Document: 003110209805

Page: 3

Date Filed: 07/08/2010

d is c re tio n in failing to remand the matter to the IJ with instructions to grant the requested w a iv e r. In support of the latter claim, Roldan argues that he submitted sufficient e v id e n c e to demonstrate a bona fide marital relationship and that the IJ therefore erred in d en ying his request for a waiver. W e do not have jurisdiction over the question whether the BIA abused its d isc re tio n in dismissing Roldan's appeal on the ground that the IJ properly denied his re q u e st for a discretionary waiver. See Urena-Tavarez v. Ashcroft, 367 F.3d 154, 161 (3d C ir. 2004) (holding that, under 8 U.S.C. § 1252(a)(2)(B)(ii), the Court may not review the d is c re tio n a ry denial of a waiver pursuant to 8 U.S.C. § 1186a(c)(4)). However, as the A tto rn e y General recognizes, we retain jurisdiction over constitutional claims or q u e s tio n s of law pursuant to 8 U.S.C. § 1252(a)(2)(D). See Sukwanputra v. Gonzales, 4 3 4 F.3d 627, 634 (3d Cir. 2006) (holding that constitutional claims raised in a petition f o r review elude the jurisdiction-stripping provisions of the INA). Thus, we may consider w h e th e r Roldan's right to due process was violated by the IJ's conduct of his hearing. R o ld a n claims that by repeatedly interrupting his counsel and questioning Roldan h erse lf, the IJ created an intimidating environment. He also maintains that the IJ d e m e a n e d Roldan and acted in a disparaging manner towards him. Taken as a whole, R o ld a n contends that the IJ's behavior during the removal proceedings indicated that she p re ju d g e d his case and did not give fair consideration to the testimony of petitioner or any

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Case: 09-1481

Document: 003110209805

Page: 4

Date Filed: 07/08/2010

o f the three witnesses he presented to corroborate his account of the marriage.1 W h ile there is no constitutional right to a discretionary waiver, aliens facing re m o v a l are nonetheless entitled to due process. See Abdulai v. Ashcroft, 239 F.3d 542, 5 4 9 (3d Cir. 2001). Due process in this context requires that an alien be provided with a f u ll and fair hearing and a reasonable opportunity to present evidence. See Romanishyn v . Attorney Gen., 455 F.3d 175, 185 (3d Cir. 2006). Additionally, we have held that IJ's h a v e a duty to remain neutral and impartial when conducting immigration hearings and th a t an IJ's statements and behavior while conducting a hearing may rise to the level of a d u e process violation when the IJ abandons her role as a neutral factfinder and insults and b elittles a petitioner. See, e.g., Wang v. Attorney Gen., 423 F.3d 260, 268-69 (3d Cir. 2 0 0 5 ); Fiadjoe v. Attorney Gen., 411 F.3d 135,154-55 (3d Cir. 2005); Abdulrahman v. A s h c ro f t, 330 F.3d 587, 596 (3d Cir. 2003). Upon a thorough review of the record, we conclude that while the IJ was at times s h o rt with Roldan, her conduct did not in any way infringe on his right to due process. The transcript of the proceedings indicates that the IJ endeavored to permit Roldan to f u lly develop his claim and was primarily concerned with clearly establishing the facts for

As part of this argument, Roldan criticizes the IJ's characterization and evaluation of th e evidence. We do not have jurisdiction to review that aspect of the proceedings. See U ren a-T av are z, 367 F.3d at 161 ("It follows that whether we agree with the IJ's c h a ra c te riz a tio n of the underlying evidence as credible vel non which led him to conclude th a t this was not a good faith marriage, is irrelevant, as the statute itself gives the A tto rn e y General (acting through his designee) the sole discretion to weigh the e v i d e n c e ." ) . 4

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Case: 09-1481

Document: 003110209805

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Date Filed: 07/08/2010

the record. She placed no restriction on the number of witnesses he presented (A.R. 89), s h e asked clarifying questions when his answers were unclear or contradictory in an a tte m p t to develop a clear and complete record (A.R. 100, 103-05, 109 112-13, 115, 1192 0 , 121-22, 131, 132-33, 136-38), and she gave him time to confer with counsel and q u e stio n e d him extensively to ensure that he fully understood the implications of waiving h is right to request voluntary departure. (A.R. 212-17.) While the IJ was active in the c o n d u c t of the proceedings, her conduct bears no resemblance to that which we have f o u n d to constitute a due process violation. See Wang, 423 F.3d at 269-70 (criticizing IJ' s personal attacks on petitioner's parenting, calling him "selfish" and a "horrible f a th e r," speculating that his wife might have been sterilized after their arrival in the U n ited States to bolster his asylum claim, and focusing on issues which were irrelevant to p e titio n e r' s asylum claim). Based on the foregoing, we will grant the Attorney General's motion to dismiss for la c k of jurisdiction as to Roldan's claim that the BIA abused its discretion in reviewing th e IJ's denial of a waiver pursuant to INA § 216(c)(4)(B), and we will deny the petition f o r review as to Roldan's claim that he was deprived of his Fifth Amendment right to due p r o c e s s in the conduct of his removal proceedings.

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