PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 19-3224
_______________
MIGUEL ANTONIO MIRAMBEAUX,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________
On Petition For Review of an Order of the Board of
Immigration Appeals
(Agency No. A074 948 774)
Immigration Judge: Audra Behne
______________
Submitted July 9, 2020
______________
Before: McKEE, BIBAS, and FUENTES, Circuit Judges.
(Opinion filed: October 2, 2020)
Jason S. Camilo
Suite 3A
330 Livingston Avenue
New Brunswick, NJ 08901
Attorney for Petitioner
William P. Barr
Christina Greer
Joseph H. Hunt
Victor M. Lawrence, I
Patricia A. Smith
Jane T. Schaffner
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorney for Respondent
_______________
OPINION OF THE COURT
_______________
FUENTES, Circuit Judge.
Miguel Antonio Mirambeaux petitions for review of a
final order of the Board of Immigration Appeals (“BIA”)
affirming an Immigration Judge’s (“IJ”) decision that his
aggravated felony conviction rendered him ineligible for
withholding of removal under the Immigration and Nationality
Act (“INA”). Mirambeaux argues solely that the BIA erred in
2
upholding the IJ’s denial of his motion for a continuance. We
will dismiss the petition for lack of jurisdiction.
I.
Mirambeaux is a citizen of the Dominican Republic
who was admitted to the United States as a lawful permanent
resident on April 30, 1999. After an arrest in November 2008,
Mirambeaux pled guilty to the distribution of a controlled
dangerous substance in New Jersey Superior Court.
On November 15, 2018, the Department of Homeland
Security’s (“DHS”) Immigration and Customs Enforcement
(“ICE”) served Mirambeaux with a Notice to Appear (“NTA”)
before an IJ, charging him as removable pursuant to section
237(a)(2)(B)(i) of the INA, 8 U.S.C. § 1227(a)(2)(B)(i), for his
controlled substance conviction, and section 237(a)(2)(A)(iii),
8 U.S.C. § 1227(a)(2)(A)(iii), as an aggravated felon.
The hearings on Mirambeaux’s removability took place
over the course of several months with the first occurring on
January 17, 2019, at which DHS presented proof of
Mirambeaux’s lawful permanent resident status and his 2009
Judgment of Conviction for distribution of a controlled
dangerous substance. During a second hearing, on February
19, 2019, the IJ reviewed Mirambeaux’s criminal record and
sustained both charges for removal.
Mirambeaux then filed an application for withholding
of removal under 8 U.S.C. § 1231(b)(3)1 with the IJ on March
1
See 8 U.S.C. § 1231(b)(3) (“The Attorney General may not
remove an alien to a country if the Attorney General decides
that the alien’s life or freedom would be threatened in that
3
25, 2019. At that time, Mirambeaux declined to also seek
protection under the Convention Against Torture (“CAT”).
Along with his application, Mirambeaux submitted evidence to
support his claim that he fears returning to the Dominican
Republic “because of all the crime and violence” in that
country.
Mirambeaux testified that his fears of returning to the
Dominican Republic stemmed from the murders of three
friends over the last ten years. He testified that he feared that
the people who killed his friends may come after him upon his
return. Ultimately he was not able to identify a specific person
or group he feared, and merely referenced “[c]rime in
general.”2
Mirambeaux’s final hearing took place on April 8,
2019, at which time Counsel made a request to renew a motion
for a continuance as he required more time to gather support
documents “given the short turnaround in this case.”3 The IJ
recognized this as the first formal request for a continuance,
not a renewal, and denied the motion. 4 In doing so, the IJ
stated, “[t]his is a detained matter, counsel, and he’s been
detained for several months now. . . The Court does not see
good cause why those documents have not been obtained at
this point.”5
country because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion.”).
2
AR 129.
3
Pet. Br. 10-11 (citing AR 110).
4
The parties dispute whether counsel’s request at the April 8,
2019 hearing was the first or second continuance request.
5
AR 110-11.
4
Ultimately, the IJ concluded that Mirambeaux’s
aggravated felony conviction left him statutorily ineligible for
asylum, and ineligible for withholding of removal under 8
U.S.C. § 1231(b)(3) and CAT. In denying the application, the
IJ noted that Mirambeaux could not specify who harmed his
friends, and for what reason, nor was he able to establish that
the Dominican Republic’s government would not be able to
protect him from potential future crimes. Further, although the
IJ acknowledged that Mirambeaux was not seeking CAT
protection, the IJ concluded that Mirambeaux did not meet the
burden for a deferral of removal under CAT as he had not
shown “it is more likely than not he would be tortured if
removed” to the Dominican Republic.6 The IJ then ordered his
removal to the Dominican Republic.
Mirambeaux appealed the IJ’s decision to the BIA, which
affirmed the IJ’s ruling on August 29, 2019. Mirambeaux then
filed a counseled petition for review, and a motion to stay
removal, which the Government opposed. Subsequently, the
Government filed a motion to dismiss the petition for review
for lack of jurisdiction, which Mirambeaux opposed.
II.
6
8 C.F.R. § 208.16(c)(2); App. 32-34; see also Sevoian v.
Ashcroft, 290 F.3d 166, 174-75 (3d Cir. 2002) (“An applicant
for relief on the merits under [CAT] bears the burden of
establishing ‘that it is more likely than not that he or she would
be tortured if removed to the proposed country of removal.’”)
(quoting 8 C.F.R. § 208.16(c)(2)).
5
Mirambeaux petitions this Court for review on the sole
issue of whether the BIA properly ruled that the IJ did not
abuse her discretion in denying his motion for a continuance.
This Court has jurisdiction to review a final order of removal
pursuant to 8 U.S.C. § 1252(a)(1). However, where a criminal
alien is found removable due to an aggravated felony
conviction, “our review of the agency’s determination is
limited to ‘constitutional claims or questions of law.’”7 This
Court has previously held that “[t]he denial of a motion for a
continuance is discretionary” and we have “no jurisdiction to
review discretionary and factual determinations presented in
petitions for review,” even when they are couched as
constitutional violations.8
In his opening brief, Mirambeaux styles his argument as
a due process claim arguing that the speed of the proceedings
before the IJ prevented him from having a full and fair
hearing.9 “We are not bound by the label attached by a party
7
Rachak v. Att'y Gen., 734 F.3d 214, 216 (3d Cir. 2013)
(quoting 8 U.S.C. § 1252(a)(2)(D)); see Pierre v. Att’y Gen.,
528 F.3d 180, 184 (3d Cir. 2008).
8
Rachak, 734 F.3d at 216-17 (quoting Jarbough v. Att’y Gen.,
483 F.3d 184, 188 (3d Cir. 2007)).
9
In support of his position that the Court has jurisdiction to
hear his claim, Mirambeaux cites Hashmi v. Attorney General,
531 F.3d 256 (3d Cir. 2008). In Hashmi the Court reviewed
the BIA’s denial of a motion for a continuance for abuse of
discretion, and vacated the BIA’s decision after finding “the
sole basis for the IJ’s exercise of discretion was the IJ’s
perceived ‘obligation[]’ to ‘manage [his] calendar[]’ and
‘complete cases within a reasonable period of time.’” Id. at 261
(emphasis in original). Hashmi, however, is distinguishable
6
to characterize a claim and will look beyond the label to
analyze the substance of a claim.”10 Thus, we must evaluate
whether Mirambeaux puts forth a colorable constitutional
claim.11
As we have explained, “[t]o determine whether a claim is
colorable, we ask whether ‘it is immaterial and made solely for
the purpose of obtaining jurisdiction or is wholly insubstantial
and frivolous.’” 12 Here, Mirambeaux’s claim of a
constitutional violation is wholly insubstantial and frivolous.
Although “[a]liens have a right to a full and fair hearing that
allows them a reasonable opportunity to present evidence on
their behalf . . . , [t]o prevail on a due process claim, the alien
must show substantial prejudice.”13 Mirambeaux has not even
attempted to show that the IJ’s denial of a continuance
prejudiced him or prevented him from reasonably presenting
his case. In fact, Mirambeaux concedes that his “conviction
constitutes an aggravated felony . . . prevent[ing] him from
essentially all relief except for deferral of removal under CAT”
and that he “could not show [at the time of his final hearing]
from this case where the Court’s jurisdiction is limited,
pursuant to 8 U.S.C. § 1252(a)(2)(C)-(D), by Mirambeaux’s
status as an aggravated felon.
10
Jarbough, 483 F.3d at 189.
11
Id. (“Petitioners alleging ‘constitutional claims’ under §
1252(a)(2)(D) must, as a threshold, state a colorable violation
of the United States Constitution.”).
12
Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d Cir. 2010)
(quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 513 n.10
(2006)).
13
Jarbough, 483 F.3d at 192 (internal quotations and citations
omitted).
7
that there was any indication ‘it is more likely than not that he
would be tortured if removed’ to the Dominican Republic.”14
Furthermore, Mirambeaux does not attempt to argue that he
would have been able to make such a showing if a continuance
had been granted. Instead, he admits that “[i]t is not known if
[he] could make such a showing in the future.”15 Ultimately,
Mirambeaux’s abandonment of any attempt to show
substantial prejudice renders any due process claim wholly
insubstantial and frivolous.
Next, in his reply brief, Mirambeaux argues that even if
he cannot make out a constitutional claim, under the Supreme
Court’s recent holding in Guerrero-Lasprilla v. Barr, 16 this
case involves a “question of law” within the meaning of 8
U.S.C. § 1252(a)(2)(D). In Guerrero-Lasprilla, the Court
considered whether denials of motions to reopen removal
proceedings based on equitable tolling are reviewable by
courts of appeals under § 1252(a)(2)(D). Ultimately, the Court
held that they are, noting that the exception for “‘questions of
law’ includes the application of a legal standard to undisputed
or established facts.” 17 We decline Petitioner’s invitation to
extend that holding to overturn our conclusion in Rachak, that
we lack jurisdiction to review the denial of a continuance.18
Unlike the standard for equitable tolling involved in Guerrero-
Lasprilla, the denial of a continuance is a discretionary
14
Pet. Br. 23 (quoting 8 C.F.R. § 1208.17).
15
Id.
16
140 S. Ct. 1062 (2020).
17
Guerrero-Lasprilla, 140 S. Ct. at 1068.
18
Rachak, 734 F.3d at 216-17.
8
decision, 19 which does not raise a constitutional claim or
question of law.20
For those reasons, we conclude that Mirambeaux has
failed to state a colorable constitutional claim or question of
law within the meaning of 8 U.S.C. § 1252(a)(2)(C)-(D).
Finally, Mirambeaux argues that this Court has
jurisdiction to review his claim under the Supreme Court’s
recent decision in Nasrallah v. Barr, in which the Court held
that § 1252(a)(2)(C)-(D) does not preclude judicial review of a
noncitizen’s factual challenges to a CAT order. 21
Mirambeaux, however, never sought deferral of removal under
CAT before the IJ and did not challenge the IJ’s determination
that he had not established eligibility for such relief on appeal
before the BIA. For that reason, the BIA considered the issue
waived. Accordingly, Mirambeaux’s deferral of removal CAT
claim is unexhausted, and this Court has no jurisdiction over
19
Challenges to an IJ’s denial of a continuance are reviewed
for abuse of discretion. See Khan v. Att’y Gen., 448 F.3d 226,
233 (3d Cir. 2006).
20
See Galeano-Romero v. Barr, No. 19-9585, 2020 WL
4458998, at *4 (10th Cir. Aug. 4, 2020) (distinguishing
Guerrero-Lasprilla and concluding that the Court did not have
jurisdiction to review the Board’s discretionary determination
as to degree of hardship and noting that that “the Board’s
discretionary determinations . . . do not raise ‘questions of law’
for purposes of § 1252(a)(2)(D), even if framed as a challenge
to the application of a legal standard to established facts
under Guerrero-Lasprilla”).
21
140 S. Ct. 1683, 1692 (2020).
9
his continuance claims on that foundation. 22 Similarly,
Mirambeaux did not seek withholding of removal under CAT
before the IJ, conceded, in his opening brief before this Court,
that he is statutorily ineligible for such relief, and does not seek
to appeal that determination. Based on that concession, we
consider any withholding of removal claim under CAT waived.
For those reasons, we reject Petitioner’s argument that, under
Nasrallah, we have jurisdiction to address the merits of his
continuance arguments on the basis of deferral of removal or
withholding claims under CAT.
In sum, we conclude that we have no jurisdiction to
review the IJ’s discretionary denial of a continuance.23 Thus,
we will dismiss the petition for review.
22
See 8 U.S.C. § 1252(d)(1); see also Bejar v. Ashcroft, 324
F.3d 127, 132 (3d Cir. 2003).
23
Rachak, 734 F.3d at 216-17.
10