John Shewchun v. Eric Holder, Jr.
OPINION and JUDGMENT filed: Petition for Review is DENIED, decision for publication pursuant to local rule 206; motion to correct administrative record [4146959-2] filed by Mr. George P. Mann is DENIED. Danny J. Boggs, Ronald Lee Gilman (AUTHORING), Deborah L. Cook, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0260p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ERIC H. HOLDER, JR., Attorney General,
On Petition for Review from the
Board of Immigration Appeals.
No. A013 746 146.
Argued: July 27, 2011
Decided and Filed: September 8, 2011
Before: BOGGS, GILMAN, and COOK, Circuit Judges.
ARGUED: Maris J. Liss, GEORGE P. MANN & ASSOCIATES, Farmington Hills,
Michigan, for Petitioner.
Andrew Nathan O’Malley, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF:
George P. Mann, GEORGE P. MANN & ASSOCIATES, Farmington Hills, Michigan,
for Petitioner. Jeffery R. Leist, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
RONALD LEE GILMAN, Circuit Judge. John Shewchun petitions this court for
review of the Board of Immigration Appeals’ (BIA’s) dismissal of his appeal from the
immigration judge’s (IJ’s) order of removal. Although Shewchun raised a number of
substantive issues on appeal to the BIA, he presents only one of those issues to us:
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whether the IJ and the BIA erred in rejecting his claim that his removal proceedings
should be terminated based on his prima facie eligibility for naturalization under
8 C.F.R. § 1239.2(f). In addition, Shewchun asks us to review the following two
procedural due process issues: (1) whether he is entitled to relief because he did not
receive a final copy of the IJ’s oral decision, and (2) whether the IJ should have recused
herself based on her prior role as Chief Counsel in the Detroit District for Immigration
and Customs Enforcement (ICE). Shewchun has also filed a motion to correct the
administrative record in connection with his claim that he did not receive a proper
transcript of the IJ’s oral decision and a separate motion asking us to take judicial notice
of various items that he claims support his argument. Assuming without deciding that
we should take judicial notice of the facts that Shewchun has brought to our attention,
we nevertheless DENY Shewchun’s petition for review and DENY his motion to correct
the administrative record.
Shewchun is a citizen of Canada who was admitted to the United States in 1963
as a lawful permanent resident. He is a scientist in the field of alternative energy and has
held academic positions at various universities in the United States. In 1983, Shewchun
was convicted in Rhode Island of larceny and of taking money under false pretenses.
He served four concurrent one-year suspended sentences for his four counts of
conviction. A year after his Rhode Island conviction, in 1984, Shewchun was convicted
in Florida on federal charges of mail and wire fraud. Both the Rhode Island and the
Florida convictions arose out of his financial transactions with the universities that he
was working for at the time. Shewchun was sentenced to 14 years in prison on the latter
conviction, but he was released on parole in 1987 after serving approximately 3 years
of his sentence. He was imprisoned for more than 2 additional years, from late 1992 to
early 1995, for violating his parole.
In 1990, the former Immigration and Naturalization Service (the INS, the
predecessor agency to the Department of Homeland Security (DHS)) issued an order to
show cause, charging Shewchun with deportability under former § 241(a)(4) of the
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Immigration and Nationality Act (the INA), 8 U.S.C. § 1251(a)(4) (1988) (currently
8 U.S.C. § 1227(a)(2)(A)(ii)) based on his having been convicted of two crimes
involving moral turpitude not arising out of a single scheme. Then, in 1997, the INS
added the following two additional grounds supporting Shewchun’s deportability under
then INA § 241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii) (1994) (currently 8 U.S.C.
§ 1227(a)(2)(A)(iii)): his having been convicted of (1) an aggravated-felony theft
offense, and (2) an aggravated-felony fraud offense involving losses exceeding $10,000.
Elizabeth Hacker was the assigned IJ on Shewchun’s case in 1995, but she
recused herself because she recalled having discussed Shewchun’s case with a former
INS trial attorney in her previous capacity as the INS District Counsel in Detroit. In
1997, the new IJ, Marsha Nettles, found that Shewchun was deportable because he had
been convicted of two crimes involving moral turpitude and because his theft conviction
constituted an aggravated felony. But she determined that he was not deportable based
on the INS’s charge that he was convicted of a fraud offense involving over $10,000 in
The BIA, in 2003, affirmed the IJ’s determination that Shewchun was deportable
for the reasons given. But the BIA considered whether Shewchun might still be eligible
for other forms of relief because the INA had previously granted the Attorney General
broad discretion to waive the deportation of certain lawful permanent residents who were
otherwise deportable for having committed various crimes. See INS v. St. Cyr, 533 U.S.
289, 294-96 (2001) (interpreting former INA § 212(c)). In St. Cyr, the Supreme Court
held that the former INA § 212(c) continued to apply to aliens who pled guilty to crimes
and who, “notwithstanding those convictions, would have been eligible for § 212(c)
relief at the time of their plea under the law then in effect.” Id. at 326. The BIA
therefore remanded the case for the IJ to determine whether Shewchun was eligible for
a waiver from deportation under the former § 212(c), or for any other applicable relief.
Before Shewchun’s case was heard on remand, DHS added another ground of
removability (formerly deportability) against him, charging that his 1984 conviction
qualified as an aggravated felony under the INA because it constituted an attempt or
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conspiracy to commit fraud or deceit involving over $10,000 in losses. This new charge
was similar to the fraud charge that the IJ had previously dismissed, but the new charge
alleged that Shewchun had attempted or conspired to commit a fraudulent act rather than
that he actually committed the fraud. Although Shewchun argued before the BIA that
DHS was precluded from bringing this new charge because of the IJ’s earlier dismissal
of a substantively similar charge, he does not raise that issue in his present appeal.
Also prior to Shewchun’s case being heard on remand, he filed a motion seeking
the recusal of IJ Nettles because she had served as Chief Counsel for ICE (a part of
DHS) in Detroit from 2001 until 2005, when she became an IJ. Judge Nettles denied
Shewchun’s motion because she was not involved in his case as Chief Counsel, she had
no knowledge of it, and his claim that she might have had some responsibility over the
case was “too speculative and broad.”
On remand, Shewchun requested several forms of relief pursuant to the BIA’s
order that permitted him to seek relief under former § 212(c) of the INA and on any
other basis for which he was eligible. He sought (1) a waiver of removability under
§ 212(c), (2) to terminate his proceedings based on his pending application for
naturalization pursuant to 8 C.F.R. § 1239.2(f), and (3) a waiver of removability under
INA § 212(h) (which provides for the discretionary waiver of removability for certain
aliens who were convicted of various crimes but who are otherwise eligible to apply for
an adjustment of status). The IJ, in December 2007, denied all of Shewchun’s claims
for relief and concluded that, in addition to the already determined reasons for his
removability, he was removable based on DHS’s new aggravated-felony charge.
According to the IJ, Shewchun was statutorily ineligible for a waiver of removability
under either INA § 212(c) or § 212(h) because of his prior aggravated-felony
convictions. The BIA agreed with the IJ’s waiver-of-removability conclusions in July
2009, and Shewchun does not challenge them in the present appeal.
Shewchun’s application to terminate his removal proceedings pursuant to
8 C.F.R. § 1239.2(f) is thus the only substantive claim that he raises in his petition for
review. This regulation allows an IJ to terminate removal proceedings, thereby allowing
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the alien to obtain a final hearing on a pending application for naturalization, if the alien
“has established prima facie eligibility for naturalization and the matter involves
exceptionally appealing or humanitarian factors.” Id.
Shewchun’s motion to terminate was rejected by the BIA because it had
previously ruled in In re Acosta Hidalgo, 24 I. & N. Dec. 103 (BIA 2007), that IJs do
not have the authority to make determinations concerning an alien’s eligibility for
naturalization. The BIA concluded that Shewchun was instead required to “establish his
prima facie eligibility through an affirmative communication from [DHS].” And
because Shewchun failed to provide the necessary proof, the BIA agreed with the IJ’s
denial of his motion. The BIA also rejected Shewchun’s argument that Acosta Hidalgo
was wrongly decided. Finally, the BIA found no merit in Shewchun’s alternative claim
that DHS had in fact confirmed his prima facie eligibility for naturalization.
When an alien appeals from a final order of removal that is based on a criminal
offense covered in INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), such as
Shewchun does here, we have jurisdiction to review only constitutional claims or
questions of law. 8 U.S.C. § 1252(a)(2)(C)-(D). All three of Shewchun’s claims are
8 U.S.C. § 1252(a)(2)(D). See Ikharo v. Holder, 614 F.3d 622, 629 (6th Cir. 2010)
(holding that the INA allows for judicial review of legal or constitutional claims arising
out of final orders of removal for having committed various crimes specified by the
“Where, as here, the BIA reviews the IJ’s decision and issues a separate opinion,
rather than summarily affirming the IJ’s decision, we review the BIA’s decision as the
final agency determination.” Al-Ghorbani v. Holder, 585 F.3d 980, 991 (6th Cir. 2009).
“To the extent that the BIA has adopted the IJ’s reasoning, however, we also review the
IJ’s decision.” Id. “Questions of law are reviewed de novo, but substantial deference is
given to the BIA’s interpretation of the INA and accompanying regulations. The BIA’s
interpretation of the statute and regulations will be upheld unless the interpretation is
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arbitrary, capricious, or manifestly contrary to the statute.” Khalili v. Holder, 557 F.3d
429, 435 (6th Cir. 2009) (citations and internal quotation marks omitted).
Termination of removal proceedings based on prima facie eligibility for
Shewchun challenges the BIA’s decision not to terminate his removal
proceedings under 8 C.F.R. § 1239.2(f). That provision reads as follows:
An immigration judge may terminate removal proceedings to permit the
alien to proceed to a final hearing on a pending application or petition for
naturalization when the alien has established prima facie eligibility for
naturalization and the matter involves exceptionally appealing or
humanitarian factors; in every other case, the removal hearing shall be
completed as promptly as possible notwithstanding the pendency of an
application for naturalization . . . .
8 C.F.R. § 1239.2(f).
In In re Acosta Hidalgo, 24 I. & N. Dec. at 106, the BIA held that “it is
appropriate for the [BIA] and the [IJs] to require some form of affirmative
communication from the DHS prior to terminating proceedings based on [§ 1239.2(f)].”
Shewchun argues, however, that Acosta Hidalgo was wrongly decided. He further
argues that although this court generally defers to the BIA’s interpretation of the INA
and its corresponding regulations, the BIA is not entitled to deference here because
Acosta Hidalgo “violates the plain language of 8 C.F.R. § 1239.2(f).”
Shewchun reasons that Acosta Hidalgo incorrectly interpreted § 1239.2(f)
because requiring an affirmative showing from DHS of prima facie eligibility for
naturalization “depriv[es] aliens of their ability to meet the regulatory burden of
[independently] establishing prima facie eligibility.” Under Acosta Hidalgo, according
to Shewchun, aliens lack the ability to make this showing because the decision gives
DHS the exclusive role of confirming the alien’s status.
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Analysis of Acosta Hidalgo
This court has not yet addressed the soundness of Acosta Hidalgo, although we
questioned the continuing viability of a prior BIA decision reaching the same conclusion
under an earlier statutory framework. See Zayed v. United States, 368 F.3d 902, 907 n.6
(6th Cir. 2004) (questioning whether Matter of Cruz, 15 I. & N. Dec. 236 (BIA 1975),
which declined to consider the question of whether an alien is prima facie eligible for
naturalization under the predecessor to § 1239.2(f), remains good law “notwithstanding
the 1990 transfer of the naturalization power from the district courts to the Attorney
General”). But all five of our sister circuits that have addressed challenges similar to
Shewchun’s have upheld Acosta Hidalgo’s interpretation of § 1239.2(f). See Barnes v.
Holder, 625 F.3d 801, 808 (4th Cir. 2010); Ogunfuye v. Holder, 610 F.3d 303, 308 (5th
Cir. 2010); Zegrean v. Att’y Gen. of United States, 602 F.3d 273, 274-75 (3d Cir. 2010);
Perriello v. Napolitano, 579 F.3d 135, 142 (2d Cir. 2009); Hernandez de Anderson v.
Gonzales, 497 F.3d 927, 933-34 (9th Cir. 2007).
These cases explain that Congress delegated to the Attorney General the “sole
authority to naturalize persons as citizens of the United States,” 8 U.S.C. § 1421(a), and
that the Attorney General has, in turn, given this authority to DHS. See, e.g., Hernandez
de Anderson, 497 F.3d at 932-33. Moreover, “[t]he text of [§ 1239.2(f)] does not
specifically authorize IJs to evaluate prima facie eligibility.” Id. at 934. Shewchun
argues that Acosta Hidalgo improperly strips the IJ of the regulatory discretion over
whether to terminate removal proceedings under § 1239.2(f). But nothing in the
regulation mandates that IJs have the authority to make this determination independent
of DHS. In light of the statutory/regulatory framework, the BIA’s view that § 1239.2(f)
requires an alien to have established prima facie eligibility outside of removal
proceedings “with a statement by the governmental authority responsible for considering
naturalization applications is not a plainly erroneous interpretation of the regulation.”
Hernandez de Anderson, 497 F.3d at 934; see also Barnes, 625 F.3d at 805 (“Because
§ 1239.2(f) leaves open the question of who has the authority to make [the
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prima-facie-eligibility] determination, we must defer to the BIA’s gap-filling
interpretation as long as it is not clearly erroneous.”).
Shewchun claims that DHS lacks the resources, as well as any mechanism, to
adjudicate prima-facie-eligibility determinations. He argues that placing the task of
making this decision in the hands of DHS—the entity that initiates removal proceedings
against aliens—“offends the most basic notions of due process” by leading to the absurd
result of “assigning DHS to the dual role of prosecutor and adjudicator.” But the Ninth
Circuit persuasively addressed this concern by explaining that because Congress has
“plenary” authority over immigration, the court could not conclude that assigning these
roles to DHS violates due process. Hernandez de Anderson, 497 F.3d at 935; see also
Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972) (“[P]lenary congressional power to
make policies and rules for exclusion of aliens has long been firmly established.”).
Moreover, Congress has specifically “accord[ed] priority to removal
proceedings” over naturalization proceedings. See Zayed, 368 F.3d at 905 (explaining
that 8 U.S.C. § 1429’s prohibition on the consideration of naturalization applications
while removal proceedings are pending was intended to end the “race between the alien
to gain citizenship and the Attorney General to deport him” (quoting Shomberg v. United
States, 348 U.S. 540, 544 (1955)); see also Hernandez de Anderson, 497 F.3d at 933
(concluding that § 1429 gives removal proceedings precedence over naturalization
applications). Allowing DHS to have such a high level of control over an alien’s
removal proceedings is thus consistent with the current statutory framework of
Shewchun counters the reasoning in Acosta Hidalgo that IJs and the BIA lack the
necessary expertise to make naturalization determinations by arguing that they both
make similar determinations in other contexts and are thus no less qualified than DHS
officers, who are not required to be lawyers, to make decisions regarding prima facie
eligibility for naturalization. In support of this argument, Shewchun asks us to take
judicial notice of two U.S. Citizenship and Immigration Services (USCIS) publications
that set out the standard for naturalization determinations. But even assuming that IJs
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and the BIA are fully qualified to make such determinations, that capability does not
alter the deference owed to the BIA’s interpretation of the authority that the plain
language of the statutory/regulatory framework delegates to each actor. Zegrean, 602
F.3d at 275 (holding that the “issue of expertise aside, we owe deference to the BIA’s
conclusion as to the scope of its jurisdiction since, whether it was interpreting a statute
or a regulation,” its view was not plainly erroneous). In other words, even if we assume
that IJs and the BIA are capable of determining whether an alien is prima facie eligible
for naturalization, the relevant question is whether they have been granted the authority
to do so.
Prima facie versus final eligibility determinations
All of our sister circuits that have dealt with this issue agree that IJs do not have
the authority to make assessments of prima facie eligibility under § 1239.2(f). But some
confusion remains regarding whether DHS has the discretionary authority to issue an
opinion concerning an alien’s prima facie—as opposed to conclusive—eligibility for
naturalization once removal proceedings have begun. Congress has prescribed that “no
application for naturalization shall be considered by the Attorney General if there is
pending against the applicant a removal proceeding pursuant to a warrant of arrest.”
8 U.S.C. § 1429.
The Second Circuit concluded in Perriello v. Napolitano, 579 F.3d 135 (2d Cir.
2009), that this statutory bar makes it “impossible for an alien to establish prima facie
eligibility for naturalization” while removal proceedings are pending because DHS—the
alien’s only recourse for such determinations—is prohibited from making a decision on
the issue during the pendency of the removal proceedings. Id. at 141-42. According to
this view, § 1239.2(f) “now conflicts, at least in part,” with 8 U.S.C. § 1429. Id. at 142;
see also Zegrean, 602 F.3d . at 274-75 (reaching the “awkward if not altogether
unworkable result” that “because petitioner had applied for naturalization after the
removal proceedings against him had commenced, it was impossible for him to establish
eligibility for naturalization”). These courts nevertheless concluded that the BIA’s
interpretation is not “plainly erroneous nor inconsistent with the regulation,” and thus
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left to Congress and DHS the task of reconciling the regulation with the statute.
Perriello, 579 F.3d at 142 (alterations and internal quotation marks omitted); Zegrean,
602 F.3d at 275.
Shewchun suggests that although DHS has “ultimate jurisdiction to adjudicate
the merits of the [alien’s] naturalization application,” the regulation still affords the IJ
the authority to assess the preliminary issue of prima facie eligibility for naturalization.
He argues that the Second and Third Circuits render the regulation, as interpreted by
Acosta Hidalgo, obsolete. Shewchun thus urges us to adopt his interpretation, which
allows for the regulation to coexist with the statute, instead of deferring to the BIA’s
position in Acosta Hidalgo.
But even if aliens are unable to obtain a determination from DHS regarding
prima facie eligibility while removal proceedings are pending, the Ninth Circuit has
suggested that they might be able to receive that information prior to the commencement
of removal proceedings. Hernandez de Anderson, 497 F.3d at 934. Alternatively, the
Fourth Circuit has suggested that “[t]he juxtaposition of § 1239.2(f) and § 1429 leaves
room for the possibility . . . that DHS could make a prima facie determination without
actually considering an alien’s application.” Barnes v. Holder, 625 F.3d 801, 807 (4th
Cir. 2010) (noting that the government confirmed this ability at oral argument).
The Fourth Circuit’s understanding comports with the statutory language that
“the findings of the Attorney General in terminating removal proceedings[,] or in
canceling the removal of an alien pursuant to the provisions of this chapter, shall not be
deemed binding in any way upon the Attorney General with respect to the question of
whether such person has established his eligibility for naturalization.” 8 U.S.C.§ 1429.
This language, in the very same provision that prohibits the consideration of
naturalization applications while removal proceedings are pending, seems to
acknowledge that preliminary naturalization determinations can be made during removal
proceedings, but sets out that those preliminary (or prima facie) determinations are
distinct from the ultimate merits of an application for naturalization.
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In other words, although the statute prohibits DHS from considering
naturalization applications while removal proceedings are pending, DHS might still be
permitted to assess whether an alien is prima facie eligible for naturalization insofar as
that decision affects the IJ’s separate consideration of whether to terminate the alien’s
pending removal proceedings. And because § 1429 mandates that this preliminary
determination will not be binding on DHS’s subsequent consideration of the alien’s
application for naturalization, § 1429 does not preclude DHS from making the prima
We find merit in the Fourth Circuit’s approach that recognizes the possibility that
an alien in removal proceedings with a pending application for naturalization may obtain
a prima facie determination from DHS even though the merits of the application cannot
be reached until the removal proceedings are concluded. But Shewchun contends that
this interpretation still places an alien at the whim of DHS, which currently has no
formal mechanism in place for making such determinations. We are sympathetic to
Shewchun’s argument that because 8 C.F.R. § 1239.2(f) grants to the IJ the authority to
terminate removal proceedings, DHS—the very party seeking Shewchun’s
removal—should not have the power to unilaterally prevent his removal proceedings
from being halted under this regulation. Shewchun’s argument fails, however, because
“[a]bsent the implementation by DHS of its regulation, § 1239.2(f), such an alien would
not have any possibility of review. Therefore we find it reasonable that DHS would
have the authority to limit the scope of such discretionary relief, which is only available
by virtue of its own regulation.” Barnes, 625 F.3d at 807 n.3.
We must also be mindful of the “substantial deference” that we owe to the BIA’s
interpretations of the INA and its accompanying regulations. See Khalili v. Holder, 557
F.3d 429, 435 (6th Cir. 2009) (holding that the BIA’s interpretation will be upheld unless
it is “arbitrary, capricious, or manifestly contrary to the statute” (internal quotation
marks omitted)). In sum, we conclude that the interplay between 8 U.S.C. § 1429 and
8 C.F.R. § 1239.2(f) does not detract from the deference that we owe the BIA’s
interpretation in Acosta Hidalgo.
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The IJ’s authority to make preliminary “portability”
determinations in the adjustment-of-status context
Shewchun responds by attempting to analogize his situation to a parallel line of
cases where an IJ has been found to have the authority to deal with an alien’s work visa
in the course of deciding whether to adjust the alien’s status during removal proceedings.
In these cases, various courts of appeals have reversed the BIA’s determination that an
IJ lacks the authority to determine whether an alien in removal proceedings, who seeks
an adjustment of status based on employment in the United States, is eligible to have his
or her petition for a work visa remain valid under 8 U.S.C. § 1154(j) (INA § 204(j))
where the alien changes jobs while his or her application is pending. This statute
provides that if an alien’s application for adjustment of status has remained pending for
180 days or more, the alien’s petition for a work visa “shall remain valid with respect
to a new job . . . if the new job is in the same or a similar occupational classification as
the job for which the petition was filed.” Id. This court has referred to § 1154(j) as the
“portability” provision because it allows for the portability of the alien’s application
across different jobs. See Matovski v. Gonzales, 492 F.3d 722, 725 (6th Cir. 2007).
In Matovski, this court noted that the BIA’s determination that DHS had the sole
authority to assess portability would “effectively eliminate” the ability of aliens in the
relevant removal proceedings to avail themselves of the provision. Id. at 735. The
Fourth Circuit, in a similar case, explained that requiring a portability determination
from DHS rather than from the IJ while an alien is in removal proceedings effectively
denies the alien the statutory provision’s protection because an alien in removal
proceedings “must seek administrative closure of the removal proceedings [in order to]
ask DHS to determine the continuing validity of his visa petition pursuant to § 204(j).”
Perez-Vargas v. Gonzales, 478 F.3d 191, 195 (4th Cir. 2007).
An alien’s predicament in these portability situations thus appears on the surface
to be similar to Shewchun’s in the present case.
In both scenarios, because
administrative closure or termination of removal proceedings requires the consent of
DHS, the alien’s access to the portability or termination provision lies within the
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discretion of the government. See id. “If DHS were to refuse the alien’s request for
[closure or termination,] the alien would be unable to avail himself of the process which
Congress provided.” Id. Shewchun argues that just as the BIA in these cases
erroneously allowed DHS to have “unfettered discretion” to make the portability
determination, the BIA in Acosta Hidalgo incorrectly allowed DHS to have absolute
authority in determining whether an alien’s removal proceedings should be terminated
under 8 C.F.R. § 1239.2(f).
But Shewchun’s argument is unavailing because the ability of aliens in removal
proceedings to benefit from the portability provision is premised on Congress’s purpose
of providing “job flexibility for long delayed applicants” regardless of whether the
aliens are filing an initial application with DHS or are submitting an application in the
context of removal proceedings before an IJ. See Matovski, 492 F.3d at 736; see also
Perez-Vargas, 478 F.3d at 195 (holding that the plain language of the statute “applies
to all aliens who have an application for adjustment of status pending and who otherwise
satisfy the statute’s terms”). “Congress never distinguished between aliens filing an
initial application with the DHS,” who could obtain the portability assessment directly
from DHS, “and those aliens renewing their applications in removal proceedings before
an Immigration Judge.” Matovski, 492 F.3d at 736. Here, in contrast, Congress has
expressly prioritized removal proceedings over naturalization proceedings. See Zayed
v. United States, 368 F.3d 902, 905 (6th Cir. 2004); see also Hernandez de Anderson v.
Gonzales, 497 F.3d 927, 933 (9th Cir. 2007). DHS’s ability to prevent an alien from
halting ongoing removal proceedings in order to adjudicate a pending application for
naturalization is therefore consistent with Congress’s statutory scheme.
An IJ’s authority to make preliminary family-based visa
determinations in the adjustment-of-status context
Shewchun also relies on two cases involving aliens seeking to avoid removal
through family-based applications for adjustment of status. He points out that although
IJs lack the authority to decide the merits of family-based visa petitions, they still have
the power to consider whether such a visa petition for an alien relative is “prima facie
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approvable” when “determining whether to continue removal proceedings pending final
adjudication of an I-130 [family-based visa petition] filed in conjunction with an
adjustment application.” Matter of Hashmi, 24 I. & N. Dec. 785, 790 (BIA 2009). Just
as the IJ has the authority to make this prima facie determination concerning
family-based visa petitions, Shewchun argues that the IJ should also be able to determine
the alien’s prima facie eligibility for naturalization.
Shewchun also compares the present case to the decision of whether to grant a
motion to reopen removal proceedings so that the alien can pursue an adjustment of
status due to a pending family-based visa petition where the alien’s marriage was entered
into after the commencement of removal proceedings. In this situation, the IJ or the BIA
may not deny the alien’s motion to reopen solely based on the fact that DHS opposes the
motion. Sarr v. Gonzales, 485 F.3d 354, 363 (6th Cir. 2007). The IJ must instead
consider a number of factors in deciding whether to grant the motion to reopen,
including whether “the motion presents clear and convincing evidence indicating a
strong likelihood that the respondent’s marriage is bona fide.” Id. (internal quotation
marks omitted). So too in the present case, according to Shewchun, DHS should not be
able to unilaterally prevent the alien from being able to pursue naturalization while in
But just as Shewchun’s comparison of the present case to the portability context
is without merit, he ignores the “the significant interest at stake” where aliens seek to
adjust their status based on “the chance to acquire lawful permanent resident status
through a family-based visa petition.” Matter of Hashmi, 24 I. & N. Dec. at 790.
Congress specifically added § 245(e)(3) of the INA (codified at 8 U.S.C. § 1255(e)(3))
to allow aliens who do not get married until after removal proceedings have commenced
to have “one opportunity to present clear and convincing evidence of the bona fides of
the marriage.” Melnitsenko v. Mukasey, 517 F.3d 42, 51 (2d Cir. 2008) (internal
quotation marks omitted). This deference to bona fide marriages is in sharp contrast to
the statutory preference of removal proceedings over naturalization proceedings. See
8 U.S.C. § 1429.
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Judicial notice of pending administrative-closure cases
Shewchun attempts to compare his situation to one more scenario: the
administrative closure of removal proceedings. This mechanism is used to temporarily
remove the case from an IJ’s calendar or from the BIA’s docket.
See In re
Gutierrez-Lopez, 21 I. & N. Dec. 479, 480 (BIA 1996). Administrative closure “does
not result in a final order. It is merely an administrative convenience which allows the
removal of cases from the calendar in appropriate situations.” Id. Shewchun asks us to
take judicial notice of two separate appeals dealing with this issue that his attorney
currently has pending before this court, captioned Cisneros v. Holder and Bermudez v.
Holder, Nos. 10-4014/4015, respectively.
His attorney argues in these separate cases, based on Matter of Hashmi, 24 I. &
N. Dec. 785 (BIA 2009), that this court should overrule the BIA’s current position that
both the alien and the DHS must consent before removal proceedings may be
administratively closed. See Matter of Lopez-Barrios, 20 I. & N. Dec. 203, 204 (BIA
1990) (reflecting the current policy).
Shewchun also points out that an appeal
encompassing this issue is currently pending before the BIA. He suggests that just as
DHS should not have the unilateral authority to prevent the administrative closure of
removal proceedings, it also should not be able to singlehandedly prevent the
termination of removal proceedings under 8 C.F.R. § 1239.2(f).
To the extent that Shewchun seeks to incorporate here the legal arguments that
his attorney has made in a totally separate appeal, which he was fully capable of making
in his briefs in the present case, that is not an appropriate basis for judicial notice. See
Toth v. Grand Trunk R.R., 306 F.3d 335, 349 (6th Cir. 2002) (“Thus, judicial notice is
generally not the appropriate means to establish the legal principles governing the
case.”). Shewchun’s request might also be construed as asking us to be cognizant of the
fact that this court or the BIA might issue decisions in the near future that alter DHS’s
current control over the administrative closure of removal proceedings. But we see no
more analogy between that situation and the one before us here than we do with the other
comparisons that Shewchun has presented to us. We will therefore proceed with the
Shewchun v. Holder
disposition of the present case without concern for what might subsequently be decided
concerning the administrative closure of removal proceedings.
Affirmative showing from DHS of prima facie eligibility for naturalization
Shewchun alternatively argues that he has in fact presented affirmative evidence
that DHS recognizes his prima facie eligibility for naturalization, as is required by
§ 1239.2(f). He references two DHS I-797C Notice of Action documents. One of these
documents informed him that DHS had received his application for naturalization. The
other sought to schedule having his biometric data recorded. Shewchun also points to
DHS’s Naturalization Document Request, which alerted him to the requirement that he
bring additional documents to his eventual interview that were not included in his
The BIA concluded that these documents are “not an affirmative communication
from DHS as to the respondent’s prima facie eligibility for naturalization as is required”
by 8 C.F.R. § 1239.2(f). We agree. The documents offered by Shewchun in support of
this claim amount to no more than DHS’s standard operating procedure in processing an
application for naturalization.
Shewchun also contends that his argument is supported by the testimony of
Thomas Brownrigg, USCIS adjudication officer. Brownrigg was asked at the hearing
before the IJ whether USCIS’s initial acceptance of a naturalization application would
“be kind of like a prima facie eligibility that this is the right application, the right fee and
the documents are attached, is that pretty much the extent of the [intake review]?” He
agreed. But this question clearly dealt with USCIS’s initial processing of applications
rather than a determination of prima facie eligibility for naturalization under 8 C.F.R.
§ 1239.2(f). Brownrigg subsequently stated that he did not know of any procedure by
which someone in removal proceedings could obtain a determination from USCIS as to
whether he or she is prima facie eligible for naturalization. The IJ thus properly decided
that Brownrigg “was unfamiliar with [Shewchun’s] case and the specific substantive
regulatory provisions that would govern [prima facie] eligibility.” Morever, we agree
Shewchun v. Holder
with the IJ’s conclusion that Shewchun “failed to provide the necessary proof, through
an affirmative communication from DHS, of [his] prima facie eligibility.”
Shewchun’s lack of success with Brownrigg’s testimony prompted him to request
a subpoena for a second, unspecified DHS officer to testify about whether Shewchun
was prima facie eligible for naturalization. But the government points out, and
Shewchun does not dispute, that he made this subpoena request five months after the IJ
had closed the evidentiary record. See 8 CFR § 1003.31(c) (“If an application or
document is not filed within the time set by the Immigration Judge, the opportunity to
file that application or document shall be deemed waived.”). The IJ denied Shewchun’s
We review de novo whether the IJ’s denial of Shewchun’s request for a second
subpoena rendered his proceedings so fundamentally unfair that it violated his due
process right to reasonably present his case. See Hassan v. Gonzales, 403 F.3d 429, 436
(6th Cir. 2005) (assessing whether an alien had good cause under the Due Process
Clause for submitting evidence after the IJ’s filing deadline). Shewchun argued that the
second subpoena was necessary because DHS would otherwise have the power to
prevent the termination of removal proceedings under 8 C.F.R. § 1239.2(f) by simply
refusing to opine on whether an alien is prima facie eligible for naturalization. As
explained above, however, DHS has no obligation to attest to whether an alien is prima
facie eligible for naturalization under 8 CFR § 1239.2(f). We therefore cannot say that
the IJ’s refusal to grant Shewchun’s request to subpoena an unidentified DHS employee
five months after the record was closed, and after Brownrigg already gave extensive
testimony on Shewchun’s status, violated Shewchun’s due process rights.
Final transcript of the IJ’s decision
Shewchun also raises the procedural issue, in both his opening brief and in his
motion to correct the administrative record, that he allegedly received only the
preliminary copy rather than the approved, edited, and signed copy of the transcript of
the IJ’s oral decision. He correctly points out the general rule set forth in 8 C.F.R.
§ 1003.5(a) that “[w]here transcription of an oral decision is required, the immigration
Shewchun v. Holder
judge shall review the transcript and approve the decision within 14 days of receipt” of
the petitioner’s appeal. And, more fundamentally, “[d]ue process demands a reasonably
accurate and complete transcript to allow for meaningful appellate review and to allow
the alien to mount a challenge to the proceedings conducted before the IJ.” Sterkaj v.
Gonzales, 439 F.3d 273, 279 (6th Cir. 2006).
But “a mere failure of transcription, by itself, does not rise to a due process
violation.” Garza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir. 2007) (internal
quotation marks omitted). A petitioner provided with an inaccurate or incomplete
transcript bears the heavy burden of proving prejudice in order to show a due process
violation in an immigration hearing. Id. at 241-42. The petitioner “must show that a
complete and accurate transcript would have changed the outcome of the case.” Id. at
242 (internal quotation marks omitted).
Shewchun argues that we should reconsider our decision in Garza-Moreno based
on new arguments that the court did not consider in that opinion. He points to the
importance that the Department of Justice (DOJ) places on 8 C.F.R. § 1003.5, as
evidenced by the DOJ’s statements “that substantial delay in the production of
transcripts in many cases has been a serious problem,” and that the DOJ “is confident
that the [IJs] will be able to adjust their schedules to accommodate” the new timeline.
Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67
Fed. Reg. 54878-01, 54895 (Aug. 26, 2002). But this court has previously noted that,
we are cognizant of the dangers in an oral opinion that is forwarded for
review without an examination for errors in transcription and have
deemed it extremely poor practice not to provide the parties with the
corrected version of the IJ’s decision when it was corrected[,] . . . minor
clerical changes or transcription errors in an uncorrected decision are not
tantamount to the deprivation of due process absent a showing of
Bulatovic v. Holder, 351 F. App’x 978, 983-85 (6th Cir. 2009) (internal quotation marks
omitted) (citing Garza-Moreno, 489 F.3d at 241).
Shewchun v. Holder
The importance of IJs furnishing a corrected transcript of their decisions in a
timely manner thus does not change our prior determination that an IJ’s failure to do so,
absent a showing of prejudice, does not constitute a per se deprivation of due
process. Garza-Moreno, 489 F.3d at 241-42. We continue, however, to be critical of
failures to timely supply petitioners with such corrected transcripts, although we note
that the parties in the present case dispute whether such a failure occurred here.
Shewchun, in fact, does not point to any differences, much less any prejudicial
changes, between the preliminary and final copies of the IJ’s decision. The BIA
determined, and Shewchun does not deny, that the IJ’s only edits “were grammatical in
nature.” In a belated effort to overcome the weakness of his contention, Shewchun has
submitted a post-argument letter to the court under Rule 28(j) of the Federal Rules of
Appellate Procedure. He argues in the letter that he complied with the proper procedures
set forth in the BIA Practice Manual, as described by Bulatovic, 351 F. App’x at 983-84,
for raising claims of prejudice. Shewchun points to 16 specific objections that he raised
to the BIA concerning the IJ’s decision. But he acknowledges in his Rule 28(j) letter
that these 16 issues are common to both the preliminary and final copies of the IJ’s
These issues, in other words, deal with his objections to the substance of the IJ’s
decision rather than with the ways in which he was allegedly prejudiced by discrepancies
between the two copies. So even assuming that Shewchun’s enumerated objections to
the IJ’s decision, which he raises for the first time on appeal in his Rule 28(j) letter, are
properly before us, he has still failed to show any prejudice resulting from the IJ’s
alleged failure to timely furnish him with a corrected copy of the oral decision. We
therefore reject Shewchun’s due process claim concerning his inaccurate copy of the
administrative record and deny his motion to correct the same.
Shewchun v. Holder
IJ’s denial of Shewchun’s motion for recusal
Shewchun’s final issue on appeal is the BIA’s denial of his claim that IJ Nettles
committed reversible error by refusing to recuse herself in light of her prior position as
Chief Counsel in the Detroit District for ICE. Judges of the United States must
disqualify themselves from proceedings in which their “impartiality might be reasonably
questioned,” 28 U.S.C. § 455(a), as well as where they have, through governmental
employment, acted “as counsel, adviser or material witness concerning the proceeding
or expressed an opinion concerning the merits of the particular case,” id. at § 455(b)(3).
An IJ’s having previously served as Chief Counsel while an alien’s case was pending
does not by itself require recusal because the “Chief Counsel of a large office is unlikely
to play any role in routine decisions of this kind.” Petrov v. Gonzales, 464 F.3d 800, 803
(7th Cir. 2006) (holding that the IJ was not required to recuse himself even though he
was Chief Counsel when ICE decided to seek removal), cited with approval in
Abdulahad v. Holder, 581 F.3d 290, 296 (6th Cir. 2009). Rather, “the alien must
produce evidence that his case is the rare one in which the head of an office took part in
a routine action.” Petrov, 464 F.3d at 803.
IJ Nettles declined to recuse herself because she “did not have any direct or even
indirect contact with [Shewchun’s] case” in her former position. She in fact had “no
recollection whatsoever of [Shewchun] or his claims for relief.” In contrast, IJ Hacker,
who was the INS’s District Counsel in Detroit prior to becoming an IJ, did recuse herself
earlier in these proceedings because she “either handled or was directly involved in a
decision-making process” in Shewchun’s case. Unlike IJ Nettles, IJ Hacker recalled
having discussed Shewchun’s case with an INS trial attorney.
Shewchun responds by pointing to a document that was filed against him during
the time that IJ Nettles served as Chief Counsel of ICE’s Detroit District. But this
document was signed by an Assistant Chief Counsel, not by IJ Nettles. Shewchun’s
other allegations similarly fail to rebut the BIA’s finding that nothing in the record
suggests that IJ Nettles was involved in this case during the time that she served as Chief
Counsel. Moreover, rather than make any specific claims of bias on the part of IJ
Shewchun v. Holder
Nettles, Shewchun makes only passing references to various issues that he has not
properly preserved for appeal.
For all of the reasons set forth above, we DENY Shewchun’s petition for review
and DENY his motion to correct the administrative record.
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