Oliver v. US Atty.

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 16, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-14089
Non-Argument Calendar
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Agency No. A097-209-940
JOSEPH CARLO OLIVIER,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 16, 2011)
Before TJOFLAT, KRAVITCH and BLACK, Circuit Judges.
PER CURIAM:
Before us is a petition to review the final order of the Board of Immigration

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Appeals (“BIA”) denying petitioner’s motion to reopen removal proceedings
subsequent to the BIA’s affirmance of an Immigration Judge’s (“IJ”) denial of
petitioner’s application for asylum, withholding of removal, and relief under the
United Nations Convention Against Torture, 8 U.S.C. §§ 1158, 1231(b)(3)(A); 8
C.F.R. § 208.16(c). Petitioner, a native of Haiti and a citizen of Venezuela, moved
the BIA to reopen the proceedings so that he could have the immigration courts
review his application for Temporary Protective Status (“TPS”), which is available
to Haitian nationals. He asks us to reverse the BIA’s order, and direct the BIA to
reopen the removal proceedings on the ground that the BIA, in denying his motion
to reopen, infringed his Fifth Amendment right to due process.1
We review this due process challenge to the BIA’s decision de novo.
Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010). “To establish a
due process violation, the petitioner must show that [he] was deprived of liberty
without due process of law and that the purported errors caused [him] substantial
prejudice.” Id. No deprivation of liberty occurs when an alien fails “to receive
relief that is purely discretionary in nature,” such as the BIA’s granting of a
The BIA’s order indicated that the IJ had no jurisdiction over petitioner’s application1
for TPS, but that the Immigration and Nationality Act § 244A(b)(5)(B), 8 U.S.C.
§ 1254a(b)(5)(B), granted him the right to have the immigration courts review his TPS eligibility.
2

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motion to reopen proceedings. Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253
(11th Cir. 2008). “To show substantial prejudice, an alien must demonstrate that,
in the absence of the alleged violations, the outcome of the proceeding would have
been different.” Lapaix, 605 F.3d at 1143.
Petitioner’s claim fails because the BIA’s denial of his motion to reopen did
not infringe on any constitutionally protected interest. See Scheerer, 513 F.3d at
1253 (holding that an alien could not prevail on a due process claim because he
had no constitutionally protected interest in the BIA’s granting of his motion to
reopen or in the adjustment of his immigration status). The statutory provision
petitioner cites does not grant him the right to have his initial TPS application
reviewed by the immigration courts instead of the Department of Homeland
Security. See Matter of Lopez-Aldana, 25 I. & N. Dec. 49, 50-52 & n.1 (BIA
2009). Moreover, because the BIA did not deprive him of any rights, he failed to
show that the BIA’s decision resulted in substantial prejudice.
PETITION DENIED.
3

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