Holmes v. Garland

37 F.4th 520

Flora Amwayi HOLMES, Petitioner

v.Merrick B. GARLAND, United States Attorney General, Respondent

No. 21-2135

United States Court of Appeals, Eighth Circuit.

Submitted: February 17, 2022

Filed: June 17, 2022

Thomas R. Anderson, III, Anderson & Anderson Law, Minneapolis, MN, for Petitioner.

Peter B. Berg, U.S. Immigration & Naturalization Service, Bloomington, MN, Sharon Michele Clay, Carl H. McIntyre, Gregory A. Pennington, Jr., U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondent.

Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Flora Amwayi Holmes, a native and citizen of Kenya, petitions for review of the order of the Board of Immigration Appeals (BIA) denying her motion to remand and dismissing her appeal from an order of removal. Having jurisdiction pursuant to 8 U.S.C. § 1252(b)(2), we deny the petition.

I.

On December 29, 2009, Holmes entered the United States on an F-1 nonimmigrant student visa. After she failed to comply with the conditions of her nonimmigrant status and falsely claimed to be a United States citizen to gain employment, the Department of Homeland Security (DHS) served Holmes with a notice to appear (NTA). In this NTA, DHS charged her with being removeable pursuant to 8 U.S.C. § 1227(a)(1)(C)(i), which provides for the removal of an alien admitted as a nonimmigrant who has failed to maintain that nonimmigrant status or to comply with the conditions of that status, and § 1227(a)(3)(D)(i), which provides for the removal of an alien who has falsely represented herself to be a United States citizen for any benefits such as employment.

On February 28, 2012, Holmes appeared pro se before an immigration judge (IJ), Judge William Nickerson. Judge Nickerson read the NTA's charges to Holmes and asked if she understood them, and she agreed that she did. Judge Nickerson advised Holmes of her right to be represented by counsel, provided a list of available pro bono attorneys to Holmes, and directed Holmes's attention to that list. Judge Nickerson then asked Holmes if she wanted a continuance to allow her time to obtain a lawyer. Holmes declined, stating that she wanted to represent herself. To confirm, Judge Nickerson said, "Then you're going to waive your right to counsel and represent yourself?" Holmes responded, "Yes, Your Honor."

Later in the proceeding, Judge Nickerson explained that he allows a continuance for any reason as a matter of course and asked Holmes a second time if she would like a continuance, to which Holmes responded that she wanted her case heard that same day. Then, Judge Nickerson asked Holmes if the NTA's charges were true or false. Holmes admitted to the charges and conceded removability. Holmes also told Judge Nickerson that she had been raped while living in Kenya and because of this rape, she feared persecution should she return to Kenya. In turn, Judge Nickerson provided Holmes with an application for asylum. After conducting an off-the-record bond hearing and because he needed documentation about Holmes's then-current place of residence prior to making a bond determination, Judge Nickerson continued the matter until March 8, 2012.

Holmes obtained counsel and again appeared before Judge Nickerson on March 8. At this time, through counsel, Holmes requested bond, which Judge Nickerson granted. Pending the posting of this bond, Judge Nickerson continued the matter until June 19, 2012, at which time the matter was reassigned to a second IJ, Judge Kristin Olmanson. At the June 19 hearing, Holmes, through her counsel, stated that she would not be seeking asylum, withholding of removal, or relief under the Convention Against Torture (CAT). Because there was "some confusion as to what had transpired at previous proceedings," Judge Olmanson continued the matter until November 6, 2012. On November 6, Holmes again appeared before Judge Olmanson with counsel. Through counsel, she argued that Judge Nickerson had violated her due process rights by requiring her to affirm or deny the charges contained in the NTA without first informing her of the consequences of admitting to those charges and despite the fact that she was appearing pro se. During this hearing, Holmes also notified Judge Olmanson that she had recently married a United States citizen and had an I-130 visa petition¹ pending. Holmes then requested a continuance so that, if her visa petition were approved, she could apply for an adjustment of status.

Judge Olmanson first found that Judge Nickerson had not violated Holmes's due process rights because he had reviewed, in detail, the hearing's purpose and Holmes's rights and had asked Holmes if she wanted a continuance so that she could obtain an attorney. Judge Olmanson then found that because Holmes had admitted to making a false claim of citizenship on an application for employment, she was statutorily ineligible for adjustment of status under the Immigration and Nationality Act (the Act). See 8 U.S.C. § 1182(a)(6)(C)(ii)(I) ("Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit ... is inadmissible."); see also 8 U.S.C. § 1255(i)(2)(A) (requiring alien to be statutorily admissible for permanent residence in order to receive adjustment of status). And because Holmes's request for a continuance was based upon her hope that she could apply for an adjustment of status following the approval of her I-130 visa petition, an adjustment for which Judge Olmanson found that Holmes was statutorily barred, Judge Olmanson denied Holmes's request for a continuance. Judge Olmanson then pretermitted² and denied any application for adjustment of status. Finally, Judge Olmanson granted Holmes's request for voluntary departure.

Holmes timely appealed to the BIA. Holmes presented proof to the BIA that her I-130 petition had been approved. Then, on October 28, 2014, while her appeal was still pending, the BIA administratively closed Holmes's proceedings following a joint request from DHS and Holmes. This request followed a change in executive policy allowing for the exercise of prosecutorial discretion. However, on April 30, 2020, following another change in executive policy, DHS filed a motion to recalendar Holmes's proceedings pursuant to Matter of Castro-Tum, 27 I. & N. Dec. 271, 274 (A.G. 2018) ("[T]here is no general authority for administrative closure."), overruled by Matter of Cruz-Valdez, 28 I. & N. Dec. 326 (A.G. 2021). Holmes did not oppose this motion. Holmes then filed a motion to remand; she argued that between 2014 and 2020, her circumstances had changed and, as a result, her due process rights would be violated if the matter were not remanded to allow the IJ to engage in further factfinding and consider her changed circumstances. With this motion to remand, Holmes filed an I-589 application for asylum, withholding of removal, and CAT relief. The BIA denied Holmes's motion to remand, necessarily foreclosing any opportunity to apply for relief via the I-589 application, and dismissed her appeal, noting that Holmes did not otherwise challenge Judge Olmanson's finding that she was ineligible for an adjustment of status. Holmes now petitions this Court for review of the BIA's denial of her motion to remand and dismissal of her appeal.

II.

Holmes first argues that Judge Nickerson violated her due process rights at the February 28 hearing and, because of this violation, her admission of the charges against her and her subsequent concession of removability should not have been admitted in the November 6 hearing before Judge Olmanson.

We review Holmes's allegation that Judge Nickerson violated her due process rights de novo, as that inquiry is purely legal in nature. See Molina v. Whitaker, 910 F.3d 1056, 1060 (8th Cir. 2018). "The Due Process Clause guarantees that removal proceedings will be ‘fundamentally fair,’ " Tamenut v. Mukasey, 521 F.3d 1000, 1005 (8th Cir. 2008) (en banc) (per curiam) (citation omitted), which means that the IJ "must be neutral and the immigrant must be given the opportunity to fairly present evidence, offer arguments, and develop the record," Molina, 910 F.3d at 1060 (citation omitted). "It is well-settled that, while there is no Sixth Amendment right to counsel, aliens have a statutory right to counsel at their own expense, and are entitled to the Fifth Amendment's guarantee of due process of law in deportation proceedings." Al Khouri v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004) ; 8 U.S.C. § 1229a(b)(4)(A) (providing that an "alien shall have the privilege of being represented"). "The IJ must advise the alien of [her] right to have counsel present, require [her] ‘to state then and there whether [s]he’ desires representation, ... and ensure that [s]he has received a list of pro bono legal-services providers." United States v. Yan Naing, 820 F.3d 1006, 1010 (8th Cir. 2016) (quoting 8 C.F.R. § 1240.10(a)(1)-(2) ). During a removal proceeding, an IJ has the ability to "interrogate, examine, and cross-examine the alien" to determine her removability, 8 U.S.C. § 1229a(b)(1), and enjoys "broad discretion to control the manner of interrogation to get at the truth," Ramirez v. Sessions, 902 F.3d 764, 771 (8th Cir. 2018) (citation omitted). However, an IJ must be particularly careful when dealing with a pro se alien like Holmes. See id. ("Considering the pro se alien's likely lack of legal knowledge, the difficulty of navigating immigration law, and the possibility of expulsion upon failure to do so successfully, we have recognized ‘it is critical that the IJ "scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." ’ " (citation omitted)). To successfully show that Judge Nickerson violated her due process rights, Holmes must demonstrate that he made "a fundamental procedural error" and that prejudice resulted from that error. See Molina, 910 F.3d...