Tima v. Gonzales

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not
precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 12, 2005
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 04-60505
(Summary Calendar)
_________________
KENIER TIMA,
Petitioner,
versus
ALBERTO R GONZALES, U S ATTORNEY GENERAL
Respondent.
Petition for Review from the
Board of Immigration Appeals,
BIA No. A96 011 208
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Kenier Tima petitions for review of the decision of the Board of Immigration Appeals (“BIA”)
affirming the Immigration Judge’s (“IJ”) decision to deny his applications for asylum, withholding of

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removal, and relief under the Convention Against Torture.
The United States Bureau of Immigration and Customs Enforcement charged Tima with
removability as an alien present in the United States without being admitted or paroled under 8
U.S.C. § 1182(a)(6)(A)(i) and as an alien present in the United States without a valid visa or entry
document under 8 U.S.C. § 1182(a)(7)(A)(i)(I). Tima conceded removability and filed for asylum,
withholding of removal, and relief under the Convention Against Torture. The IJ denied Tima’s
applications and ordered his removal.
Tima appealed the decision of the IJ to the BIA. Along with his notice of appeal, Tima’s
attorney enclosed a letter stating that she had not yet received a copy of the transcript of the
proceedings before the IJ. She requested the right to amend the statement of reasons for the appeal
upon receipt of the transcript. On December 31, 2003, the BIA issued a briefing schedule, which
stated “Enclosed is a copy of the transcript of the testimony of record.” On January 21, 2004, Tima
moved for a continuance because he had not received a copy of the briefing schedule. His attorney
stated that it was only upon inquiry on January 15 that she discovered a schedule had been set. On
January 29, 2004, the BIA granted the request and issued a new briefing schedule, which gave Tima
until February 11, 2004, to file his brief. When that date arrived, Tima filed another request for an
extension of time. His attorney stated that she still had not received a transcript of the proceedings
and that without that transcript, no brief could be filed. The BIA denied this second request on the
ground that Tima had not shown “extraordinary circumstances as to why a further extension should
be granted” and affirmed the IJ’s decision. Tima moved for reconsideration and reiterated that he had
yet to receive a copy of the transcript. According to the letter from his attorney, the Immigration

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1 8 C.F.R. § 1003.5 provides that the record of the proceedings before the IJ “shall be
forwarded to the [BIA] upon the request or the order of the [BIA].”
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Court had informed her that only the BIA could provide a copy of the transcript.1 The BIA denied
the motion because Tima had “not alleged or show any error” in its prior decision. Tima filed a
petition for review o f the BIA’s decision in this court. He contends that the BIA denied him due
process of law by denying his motion for an extension of time and affirming the decision of the IJ.
The Fifth Amendment guarantees an alien due process of law in deportation proceedings.
Reno v. Flores, 507 U.S. 292, 306 (1993). An immigration proceeding violates due process where
the challenged practice “might have led to a denial of justice, or there must have been absent an
element deemed essential to due process.” Hernandez-Garza v. I.N.S., 882 F.2d 945, 947 (5th Cir.
1989). Where the executive provides review of an IJ’s decision, it must do so in conformity with due
process. Chike v. I.N.S., 948 F.2d 961, 962 (5th Cir. 1991). “The opportunity to be heard is a root
requirement of due process.” Id. (internal quotation marks omitted). The denial of the opportunity
to be heard before the BIA itself establishes substantial prejudice. Id.
It is the practice of the BIA to send a copy of the transcript “to both parties along with the
briefing schedule via regular mail.” BOARD OF IMMIGRATION APPEALS PRACTICE MANUAL 46 (2004),
available at http://www.usdoj.gov/eoir/bia/qapracmanual/apptmtn4.htm (last visited Nov. 17, 2005).
A copy of the record can also be either viewed in the Clerk’s office or obtained by filing a Freedom
of Information Act (“FOIA”) request with the Executive Office for Immigration Review. Id. at 123-
24; 28 C.F.R. § 16.1 et seq. The BIA’s practice manual recommends that parties file such FOIA
requests before receiving a briefing schedule. BOARD OF IMMIGRATION APPEALS PRACTICE MANUAL
124.

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Kenier relies on Chike v. I.N.S., 948 F.2d 961. In Chike, the petitioner appealed an order of
an IJ holding that he was deportable. Id. at 961. Because of an administrative mistake, he never
received a copy of the briefing schedule and filed no brief. Id. The BIA nevertheless reached the
merits of his appeal and dismissed it. Id. This court reversed, holding that under these circumstances
the BIA deprived the petitioner of the opportunity to be heard. Id. at 962. Tima contends that the
failure of the BIA to provide him with a copy of the transcript of the proceedings before the IJ
prevented him from being able to file a brief. The BIA’s dismissal of his appeal therefore denied him
due process of law.
In Chike, however, it was undisputed that the petitioner did not receive a copy of the briefing
schedule. In the present case, the Government makes no similar concession and argues that there is
no evidence that Tima did not receive a copy of the transcript. Tima responds that the statements of
his attorney in her motions for an extension of time support his contention that he did not receive a
copy of the transcript. It is, however, the policy of the BIA that “[s]tatements made in a motion are
not evidence.” BOARD OF IMMIGRATION APPEALS PRACTICE MANUAL 72. If a motion is predicated
on evidence not part of the record, it should be accompanied by “sworn affidavits, declarations under
the penalty of perjury, and documentary evidence.” BOARD OF IMMIGRATION APPEALS PRACTICE
MANUAL 72. Tima concedes that his attorney’s unsworn statements do not satisfy these
requirements. In this context, requiring Tima to support the factual assertions in his motion for an
extension of time to file a brief with evidence did not deny him the opportunity to be heard or due
process of law.
Accordingly, the petition for review is DENIED.

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