Summary
The United States Court of Appeals for the Eighth Circuit denied Roxana Quijano-Duran and her daughter's petition for review of a Board of Immigration Appeals order denying asylum, withholding of removal, and Convention Against Torture relief. The court held that Quijano waived her due process claim based on alleged immigration judge bias by failing to adequately develop it before the BIA. The court also held that it lacked jurisdiction to review the Department of Homeland Security's exercise of prosecutorial discretion regarding removal priorities.
Topics
Practice areas
Questions Presented
- Whether the BIA properly deemed waived petitioners' due process claim that the immigration judge was biased and prejudged Quijano-Duran's testimony.
- Whether the Eighth Circuit had jurisdiction to review the Department of Homeland Security's decision to remove petitioners notwithstanding an asserted lack of enforcement priority.
Holdings
- The BIA properly applied its waiver rule because petitioners made only conclusory allegations of immigration judge bias in the notice of appeal and abandoned the issue in their brief to the BIA; the Eighth Circuit therefore would not consider the claim for the first time on judicial review.
- The court lacked jurisdiction under 8 U.S.C. § 1252(g) to review DHS's exercise of prosecutorial discretion concerning the initiation or execution of removal proceedings.
Key quotations
“Where the agency properly applies its own waiver rule . . . we will not permit an end run around those discretionary agency procedures by addressing the argument for the first time in a petition for judicial review.” (-5)
“The claim is therefore dismissed. For the foregoing reasons, we deny the petition for review.” (-7)
Factual background
Petitioners, natives and citizens of El Salvador, entered the United States without valid entry documents in August 2017 and were charged as removable. Roxana Quijano-Duran claimed that Mara 18 gang members threatened to harm or kidnap her and her family on five occasions between 2015 and 2017, and sought asylum, withholding of removal, and CAT relief. The immigration judge found her testimony not credible and independently concluded that the threats did not constitute persecution, the proposed particular social groups were not cognizable, internal relocation was possible, and the Salvadoran government was not shown unable or unwilling to protect her.
Procedural history
The immigration judge denied petitioners' applications for asylum, withholding of removal, and CAT relief and ordered them removed to El Salvador. The BIA dismissed the appeal, concluding that petitioners waived their due process bias argument and rejecting the asylum claims on the merits. The Eighth Circuit denied the petition for review and dismissed for lack of jurisdiction the challenge to the Department of Homeland Security's removal-enforcement discretion.