[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13546 ELEVENTH CIRCUIT
APRIL 6, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A73-717-989
JUAN MAXIMIANO OCHOA-ARTEGA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 6, 2009)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Juan Maximiano Ochoa-Artega (“Ochoa-Artega”) appeals the Board of
Immigration Appeals’ (“BIA”) decision to dismiss his appeal of the Immigration
Judge’s (“IJ”) order denying his motion for termination of his removal proceedings
and subsequent order of removal. The BIA did not err because the regulations do
not require that a Notice to Appear (“NTA”) be legibly signed. However, if the
NTA was invalid, Ochoa-Artega was not substantially prejudiced by the defect
because the decision of whether to cancel removal under 8 U.S.C. § 1229b(b)(1) is
a discretionary decision by the Attorney General, and there is no constitutionally
protected right to discretionary relief. Therefore, we DENY the petition.
I. BACKGROUND
In November 1994, Ochoa-Artega filed an application for asylum.
Administrative Record (“AR”) at 118. In November 1997, the Immigration and
Naturalization Service (“INS”) issued an NTA, charging that Ochoa-Artega, a
citizen and native of Mexico, was subject to removal under INA § 212(a)(6)(A)(i)
as an alien present in the United States without being admitted or paroled. Id. at
124. On the NTA, both the signature and title of the issuing officer were illegible.
Id. In April 1998, Ochoa-Artega failed to appear at his removal hearing. Id. at
114. The IJ proceeded with the removal hearing, found Ochoa-Artega removable
as charged, and ordered him removed to Mexico in absentia. Id.
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In June 2006, Ochoa-Artega filed a motion to rescind the order of removal
with the IJ, and the IJ reopened the proceedings. Id. at 76, 82. In May 2007,
Ochoa-Artega filed a motion to terminate proceedings. Id. at 73. In relevant part,
Ochoa-Artega argued that the NTA was illegibly signed and had no printed
notification as to the officer’s name or title. Id. Ochoa-Artega hypothesized that
the title of the officer was “DAO,” which is the designation for an officer not
authorized to issue an NTA under 8 C.F.R. § 239.1(a). Id.
The government opposed Ochoa-Artega’s motion to terminate proceedings.
Id. at 67. The government contended that although the signature on the NTA was
somewhat illegible, § 239.1(a) did not require a legible signature. Id. Further,
even if there was an error, Ochoa-Artega suffered no prejudice. Id. at 68-69.
Finally, Ochoa-Artega failed to overcome the presumption that the immigration
official properly discharged his duty. Id. at 68.
The IJ denied the motion to terminate proceedings. Id. at 62. First, the IJ
found that the plain meaning of § 239.1 did not require a legible signature, and
therefore Ochoa-Artega had failed to show that the NTA was insufficient or
otherwise failed to meet the regulatory requirements. Id. Second, because the
NTA complied with the notice requirements of § 239.1, Ochoa-Artega’s due
process rights were not violated. Third, even if the government committed error,
Ochoa-Artega failed to display prejudice. Id.
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In August 2007, Ochoa-Artega filed a motion to issue a decision without a
hearing so he could appeal to the BIA the denial of his motion to terminate. Id. at
51-52. The IJ found that Ochoa-Artega was removable as charged and ordered him
removed to Mexico. Id. at 47. The IJ continued to find that the NTA’s illegible
signature did not give Ochoa-Artega any substantive or procedural rights. Id. at
46-47. Finally, the IJ found that Ochoa-Artega failed to overcome the presumption
that government employees regularly discharge their duties or that any such error
prejudiced him. Id. at 47.
Ochoa-Artega appealed the IJ’s decision to the BIA. Id. at 31. Ochoa-
Artega conceded that § 239.1(a) did not require a legible signature, but in order to
assess whether the person who signed the NTA acted within the scope of his
authority there needed to be a clearly legible and understandable signature. Id. at
16-17. Ochoa-Artega argued that he was prejudiced because if the NTA was
terminated and a new NTA was issued in its place, he would have accumulated the
ten years’ of continuous physical presence required to be eligible for cancellation
of removal. Id. at 17. Further, although there is a presumption of regularity when
a government official is undertaking his duty, this presumption was overcome by
the hardship of being removed from the United States due to an invalid NTA. Id.
at 18. Ochoa-Artega requested that a new charging document be issued according
to § 239.1. Id.
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The BIA affirmed the IJ’s decision. Id. at 2. The BIA found that neither
§ 239 nor 8 C.F.R. § 1003.15 required that the issuing officer’s name or title be
listed on the NTA. Id. Moreover, the illegibility of the signature and title for the
issuing officer on the NTA did not provide clear evidence that the official failed to
discharge his official duties properly. Id. In addition, Ochoa-Artega’s request for
a reissued NTA did not change the finding that the original NTA was not defective
and that the IJ correctly denied the motion to terminate. Id. at 2-3.
II. DISCUSSION
On appeal, Ochoa-Artega argues that although the NTA complied with the
notice requirements of 8 U.S.C. § 1229, the NTA violated 8 C.F.R. § 239.1(a)
because it is unclear who authorized the NTA due to the illegibility of the signature
and title. Ochoa-Artega estimates that the title of the officer was “DAO” or
“District Adjudicator Officer,” which is not an officer authorized under § 239.1(a)
to issue an NTA. Ochoa-Artega contends that because § 239.1(a) does not permit
the use of symbols, acronyms, or other shorthand methods for indicating the title of
an immigration officer, his conclusion that an immigration officer’s name and title
must be clearly legible is reasonable. Ochoa-Artega concedes that § 239.1(a) does
not require a legible signature, but because the regulation specifies who is
authorized to issue an NTA, there must be a legible signature and title to determine
if the specified authorized official signed the NTA. Ochoa-Artega argues that he
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was prejudiced by the issuance of the NTA because he did not satisfy the ten years
of continuous physical presence necessary to establish statutory eligibility for
cancellation of removal. However, he posits, if a new NTA was issued, he would
now have the requisite ten years of continuous physical presence necessary for
relief. Ochoa-Artega contends that although there is a presumption of regularity
for government officials undertaking their duties, the hardship he has suffered
overcomes this presumption.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA did not explicitly adopt the IJ’s
findings, and thus we review only the BIA’s decision. AR at 2. “To the extent that
the BIA’s decision was based on a legal determination, this court’s review is de
novo.” D-Muhumed v. United States Att’y Gen., 388 F.3d 814, 817 (11th Cir.
2004).
The contents of an NTA are prescribed in 8 U.S.C. § 1229(a)(1) and the
immigration regulations and include, inter alia, the nature of the proceedings
against the alien and the legal authority under which the proceedings are
conducted, but do not require the inclusion of a signature or title of the issuing
officer. 8 U.S.C. § 1229(a)(1); 8 C.F.R. § 1003.15(b). The regulations specify a
number of officials authorized to issue an NTA. 8 C.F.R. § 239.1(a). In addition,
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formal actions by administrative agencies are entitled to a presumption that they
acted properly and according to the law. F.C.C. v. Schreiber, 381 U.S. 279, 296,
85 S. Ct. 1459, 1470 (1965).
“To establish due process violations in removal proceedings, aliens must
show that they were deprived of liberty without due process of law, and that the
asserted errors caused them substantial prejudice.” Lonyem v. United States Att’y
Gen., 352 F.3d 1338, 1341-42 (11th Cir. 2003) (per curiam). The Attorney
General may cancel removal of a nonpermanent resident who has been physically
present in the United States for at least ten years and establishes that removal
would result in exceptional hardship to the alien’s citizen or resident spouse,
parent, or child. 8 U.S.C. § 1229b(b)(1). The BIA’s determination as to whether
an individual has demonstrated an “exceptional and extremely unusual hardship”
for purposes of cancellation of removal is a purely discretionary decision that is not
subject to judicial review. Martinez v. United States Att’y Gen., 446 F.3d 1219,
1222 (11th Cir. 2006).
In Kohli v. Gonzales, 473 F.3d 1061 (9th Cir. 2007), the Ninth Circuit ruled
that the illegibility of the name and title of officer who issued the NTA was not
fatal because a legible name and title of the issuing officer were not required by
any statute or regulation and, in any event, Kohli failed to show prejudice. Id. at
1067-69. Further, Kohli failed to rebut the presumption of regularity accorded to
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administrative agencies because she did not “come forward with any evidence
indicating that the person who signed the NTA lacked the authority to do so.” Id.
at 1068. The Ninth Circuit held that “in light of the number of officials that may
sign a NTA pursuant to 8 C.F.R. § 239.1(a), it appears that the decision to issue a
NTA is not limited to the discretion of highly placed officers, and it seems unlikely
that the official who signed the NTA was not authorized to do so.” Id.
Because there is no statutory or regulatory authority requiring that the
issuing officer’s signature and title be present on the NTA, the illegibility of the
signature and title does not render it defective. See 8 U.S.C. § 1229(a)(1); 8 C.F.R.
§ 239.1(a). In fact, Ochoa-Artega concedes that there is no requirement. See
Petitioner’s Brief at 10; Reply Brief at 3. It is unlikely that the official who signed
the NTA was not authorized to do so as the decision to issue an NTA is not limited
to the discretion of highly placed officers. See 8 C.F.R. § 239.1(a); Kohli, 473
F.3d at 1068. Moreover, based on the presumption of regularity granted to
government officials, it should be presumed that the proper authorized official
signed the NTA. Schreiber, 381 U.S. at 296, 85 S. Ct. at 1470. Ochoa-Artega’s
attempt to overcome this presumption by speculating that the issuing officer was a
“District Adjudicator Officer” is not sufficient because there is no support for this
theory in the record. See AR at 124; Petitioner’s Brief at 8.
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In the alternative, even if the NTA was invalid, Ochoa-Artega was not
substantially prejudiced by the defect. Ochoa-Artega argues that he was prejudiced
because the invalid NTA was issued before he had satisfied the requisite ten years
of continuous physical presence necessary to establish statutory eligibility for
cancellation of removal under § 1229b(b)(1). Because the decision of whether to
cancel removal under § 1229b(b)(1) is a discretionary decision by the Attorney
General, Ochoa-Artega was not deprived of due process because the decision was
not subject to judicial review. Martinez, 446 F.3d at 1222. Therefore, the BIA did
not err by affirming the IJ’s decision denying Ochoa-Artega’s motion for
termination of his removal proceedings and subsequent order of removal.
III. CONCLUSION
Petitioner’s challenge to his removal proceedings on the basis that the Notice
to Appeal which initiated those proceedings was invalid due to the legibility of the
signature and title of the issuing officer is rejected. The applicable regulations and
statute do not require legibility and petitioner can demonstrate prejudice sufficient
to warrant the relief requested. Accordingly, the petition is DENIED.
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