Arteaga-Ramirez, et al v. Barr

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-60024
Summary Calendar

RENE ANTONIO ARTEAGA-RAMIREZ; LIGIA MERCEDES ORELLANA-
CASTRO; KATERINE MERCEDES ARTEAGA-ORELLANA,

Petitioners

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the
Board of Immigration Appeals

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:
Rene Antonio Arteaga-Ramirez, Ligia Mercedes Orellana-Castro, and
Katerine Mercedes Arteaga-Orellana petition this court for review of an order
of the Board of Immigration Appeals dismissing their appeal from an order of
the Immigration Judge (IJ) denying their application for relief under,
inter alia, the Convention Against Torture (CAT). They argue that their due
process rights were infringed when the IJ failed to develop the record with
re spect to their CAT claim and argue that this warrants remand for further
consideration.
United States Court of Appeals
Fifth Circuit
FILED
April 8, 2020

Lyle W. Cayce
Clerk
Case: 19-60024 Document: 00515376521 Page: 1 Date Filed: 04/08/2020

No. 19-60024
2
Due process claims are reviewed de novo. De Zavala v. Ashcroft, 385
F.3d 879, 883 (5th Cir. 2004). The Fifth Amendment’s Due Process Clause
applies to individuals in removal proceedings. Okpala v. Whitaker, 908 F.3d
965, 971 (5th Cir. 2018). To prevail on a due process claim, an alien must make
an initial showing of substantial prejudice by making “a prima facie showing
that the alleged violation affected the outcome of the proceeding.” Id.
“As a general rule, due process requires that an alien be provided notice
of the charges against him, a hearing before an executive or administrative
tribunal, and a fair opportunity to be heard.” Id. Particularly where an alien
appears pro se, the IJ should “facilitate the development of testimony.” Lopez-
Rodriguez v. INS, No. 93-5242, 1994 WL 122108, 6 (5th Cir. 1994); see also
Solis Romero v. Barr, 769 F. App’x 126, 127 (5th Cir. 2019); In re J-F-F-, 23 I.
& N. Dec. 912, 922 (A.G. 2006). However, the IJ does not have a duty to act as
an advocate for the alien. Solis Romero, 769 F. App’x at 127; Lopez-Rodriguez,
1994 WL 122108, 6.
Assuming without deciding that a due process violation occurred, the
petitioners have failed to show that the outcome of the proceedings would have
been different if the IJ had developed the record further. See Okpala, 908 F.3d
at 971; Anwar v. INS, 116 F.3d 140, 145 (5th Cir. 1997). Therefore, their
petition for review is DENIED.

Case: 19-60024 Document: 00515376521 Page: 2 Date Filed: 04/08/2020