Mohammed v. Holder

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-1750

DIL MOHAMMED,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals.

Submitted: April 13, 2011 Decided: April 19, 2011

Before DUNCAN, AGEE, and KEENAN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Valentine A. Brown, DUANE MORRIS LLP, Philadelphia,

Pennsylvania, for Petitioner. Tony West, Assistant Attorney

General, Douglas E. Ginsburg, Assistant Director, Katherine A.

Smith, Office of Immigration Litigation, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Dil Mohammed, a/k/a Mohammed Mohiuddin, a native and

citizen of Bangladesh, petitions for review of the Board of

Immigration Appeals’ (“Board”) order dismissing his appeal from

his order of removal. We deny the petition for review.

Mohammed asserts the immigration judge violated his

rights under the Fifth Amendment Due Process Clause during the

course of his merits hearing on his second application for

asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). Mohammed also alleges the

immigration judge’s handling of his eligibility for cancellation

of removal violated due process.

With regard to the latter contention, cancellation of

removal is ultimately a discretionary form of relief. See 8

U.S.C. § 1229b(b) (2006). Thus, Mohammed’s due process claim

predicated on this discretionary relief is not cognizable. See

Dekoladenu v. Gonzales, 459 F.3d 500, 508 (4th Cir. 2006) (“No

property or liberty interest can exist when the relief sought is

discretionary.”), overruled on other grounds by Dada v. Mukasey,

554 U.S. 1 (2008); see also Kodjo v. Mukasey, 269 F. App’x 262,

263-64 (4th Cir. 2008) (unpublished) (finding no property or

liberty interest in discretionary relief of cancellation of

removal).

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The remainder of Mohammed’s appeal is dedicated to the

purported errors in the hearing procedure relevant to his

application for asylum, withholding of removal, and CAT

protection, which Mohammed pursued pro se. To succeed on a due

process claim in an asylum or removal proceeding, an alien must

establish two closely linked elements: (1) that a defect in the

proceeding rendered it fundamentally unfair and (2) that the

defect prejudiced the outcome of the case. Anim v. Mukasey, 535

F.3d 243, 256 (4th Cir. 2008); Rusu v. INS, 296 F.3d 316, 320-

22, 324 (4th Cir. 2002).

We have thoroughly reviewed Mohammed’s assignments of

error and the administrative record. Given the overwhelming

nature of the Attorney General’s evidence that Mohammed had

previously received immigration benefits that he knew were

obtained by fraud and the propriety of the immigration judge’s

alternative findings, we conclude that there were no defects in

the hearing procedure that prejudiced Mohammed. We are also

confident that the immigration judge fulfilled his obligations

for conducting this pro se hearing. See In re J.F.F., 23 I. &

N. Dec. 912, 922 (A.G. 2006) (“It is appropriate for Immigration

Judges to aid in the development of the record, and directly

question witnesses, particularly where an alien appears pro se

and may be unschooled in the deportation process, but the

Immigration Judge must not take on the role of advocate.”).

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Accordingly, we deny the petition for review

substantially for the reasons stated by the Board. In re:

Mohammed (B.I.A. June 4, 2010). We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

PETITION DENIED

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