Pablo Apaza-Ore v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10412
Non-Argument Calendar
____________________
PABLO APAZA-ORE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A088-075-416
____________________
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2 Opinion of the Court 22-10412
Before J ORDAN, B RANCH, and L UCK , Circuit Judges.
PER CURIAM:
Pablo Apaza-Ore, a native and citizen of Peru, filed a petition
for review of the Board of Immigration Appeals’ order affirming an
immigration judge’s denial of his motion to reopen. Mr. Apaza-
Ore argues that the BIA should have reopened his immigration
proceedings because the IJ violated due process by reaffirming a
prior adverse credibility finding before holding a scheduled hearing
on his case. Mr. Apaza-Ore argues that this deprived him of an op-
portunity to present additional evidence and arguments after the
BIA had previously remanded the record for the IJ to issue an up-
dated removal order. Because the IJ’s actions were consistent with
the BIA’s remand order and Mr. Apaza-Ore had a full and fair op-
portunity to be heard, we affirm.
We review only the decision of the BIA, except to the extent
that the BIA expressly adopts or agrees with the opinion of the IJ.
See Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947-48 (11th Cir. 2010).
We review constitutional claims, including claims that the BIA’s
actions violated due process,
de novo.
See Ali v. U.S. Att’y Gen.,
443 F.3d 804, 808 (11th Cir. 2006).
An alien may move to reopen his removal order.
See INA
§ 240(c)(7), 8 U.S.C. § 1229a(c)(7). Such a motion must “state the
new facts that will be proven at a hearing to be held if the motion
is granted, and shall be supported by affidavits or other evidentiary
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22-10412 Opinion of the Court 3
material.”
See INA § 240(c)(7)(B), 8 U.S.C. § 1229a(c)(7)(B). A mo-
vant “bears a heavy burden, and must present evidence of such a
nature that the BIA is satisfied that if proceedings before the IJ were
reopened, with all attendant delays, the new evidence offered
would likely change the result in the case.”
Ali, 443 F.3d at 813
(quotation marks and brackets omitted).
The Fifth Amendment “entitles petitioners in removal pro-
ceedings to due process of the law.”
Lapaix v. U.S. Att’y Gen., 605
F.3d 1138, 1143 (11th Cir. 2010). Due Process requires that “aliens
be given notice and an opportunity to be heard in their removal
proceedings.”
Id. Further, “[d]ue process is satisfied only by a full
and fair hearing.”
Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 548 (11th
Cir. 2011) (citation omitted).
To establish a violation of due process, a petitioner must
show that he “was deprived of liberty without due process of law,”
and that the error caused him substantial prejudice.
See Lapaix,
605 F.3d at 1143. To show substantial prejudice, “an alien must
demonstrate that, in the absence of the alleged violations, the out-
come of the proceeding would have been different.”
Id.
Here, the BIA did not err in dismissing Mr. Apaza-Ore’s ap-
peal of the denial of his motion to reopen. We explain why below.1
1 The BIA initially remanded Mr. Apaza-Ore’s case in 2014, and the IJ did not
issue the updated removal order until September 2017. Mr. Apaza-Ore took
no action during this 3-year period and, rather than appealing the updated re-
moval order, filed the instant untimely motion to reopen. Mr. Apaza-Ore
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4 Opinion of the Court 22-10412
In its initial remand order, the BIA criticized the IJ’s failure
to provide an adequately reasoned analysis to support her adverse
credibility determination. As such, the BIA remanded to the IJ to
“re-evaluate the respondent’s credibility and issue a new decision.”
The IJ did just that, issuing a written decision and order again find-
ing that Mr. Apaza-Ore was not credible and therefore, concluding
that he had failed to establish his eligibility for asylum, withholding
of removal, or CAT relief.
Mr. Apaza-Ore appears to believe that, because the BIA re-
manded his proceedings, he should have had an opportunity to pre-
sent additional evidence. But the BIA was not concerned with the
adequacy of Mr. Apaza-Ore’s presentation of evidence. It was con-
cerned with the structure and adequacy of the IJ’s explanation for
the rejection of that evidence. Its remand order, declaring exactly
what it wanted to see from the IJ’s removal order—what factors
and authority the IJ relied upon, citations to authority, and a “clear”
assessment of the “totality of circumstances”—made that clear.
The BIA’s remand order did not mention a new hearing or
the introduction of new evidence. Mr. Apaza-Ore already had a
removal hearing where he testified and presented evidence, and an
appeal to the BIA. This was a full and fair opportunity for him to
blamed the untimeliness on his prior counsel. To avoid prejudicing Mr.
Apaza-Ore, the IJ administratively returned the record to the BIA, which cured
the untimeliness and provided him with an opportunity to appeal. On appeal
to the BIA, he did not challenge this administrative action.
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22-10412 Opinion of the Court 5
be heard on his application for relief,
see Lapaix, 605 F.3d at 1143,
and he was not entitled to another opportunity simply because the
BIA remanded his proceedings for a limited purpose.
Mr. Apaza-Ore argues that the IJ on remand scheduled a
master calendar hearing, where he could have presented additional
argument and evidence had the IJ not issued the second removal
order. But a master calendar hearing is not an evidentiary hearing.
In immigration proceedings, master calendar hearings are held to
resolve administrative issues such as advising a respondent of cer-
tain rights, explaining immigration court procedures, and schedul-
ing further adjudicative hearings.
See Immigr. Ct. Prac. Manual,
ch. 4.15(a), (e). Accordingly, the IJ’s issuance of the updated re-
moval order before the master calendar hearing was to occur did
not deprive Mr. Apaza-Ore of an opportunity to present new evi-
dence or argument.
Moreover, Mr. Apaza-Ore does not challenge on appeal the
BIA’s determination that, even if he suffered a due process viola-
tion, he could not show prejudice.
See Lapaix, 605 F.3d at 1143.
Consequently, he has abandoned any such argument.
See Sepul-
veda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
This alone is reason to deny his petition.
In any event, Mr. Apaza-Ore failed to show that any pur-
ported due process violation substantially prejudiced him. The IJ’s
adverse credibility finding was based on insufficient detail and in-
consistent testimony regarding Mr. Apaza-Ore’s religious missions
in Peru and the resulting attacks he suffered. The additional
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6 Opinion of the Court 22-10412
evidence he provided with his motion to reopen, however, did not
address the bases of the IJ’s adverse credibility finding. Nor did his
updated asylum application. Though he indicated in his brief to
the BIA that he intended to submit additional evidence beyond
what was attached to his motion to reopen, he did not identify that
evidence or explain how it “would likely [have] change[d] the re-
sult in the case.”
See Ali, 443 F.3d at 813. Accordingly, he did not
show that, but for the alleged due process violation, the outcome
of his proceedings would have been different.
See Lapaix, 605 F.3d
at 1143.
The BIA did not err in denying Mr. Apaza-Ore’s motion to
reopen. There was no due process violation and, even if there was,
there is no showing of prejudice. The petition for review is denied.
PETITION DENIED.
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