Shewchun v. Holder

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0260p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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JOHN SHEWCHUN,

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Petitioner,

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No. 09-3894

v.

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Respondent. -

ERIC H. HOLDER, JR., Attorney General,

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On Petition for Review from the

Board of Immigration Appeals.

No. A013 746 146.

Argued: July 27, 2011

Decided and Filed: September 8, 2011

Before: BOGGS, GILMAN, and COOK, Circuit Judges.

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COUNSEL

ARGUED: Maris J. Liss, GEORGE P. MANN & ASSOCIATES, Farmington Hills,

Michigan, for Petitioner. Andrew Nathan O’Malley, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF:

George P. Mann, GEORGE P. MANN & ASSOCIATES, Farmington Hills, Michigan,

for Petitioner. Jeffery R. Leist, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. John Shewchun petitions this court for

review of the Board of Immigration Appeals’ (BIA’s) dismissal of his appeal from the

immigration judge’s (IJ’s) order of removal. Although Shewchun raised a number of

substantive issues on appeal to the BIA, he presents only one of those issues to us:

1

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whether the IJ and the BIA erred in rejecting his claim that his removal proceedings

should be terminated based on his prima facie eligibility for naturalization under

8 C.F.R. § 1239.2(f). In addition, Shewchun asks us to review the following two

procedural due process issues: (1) whether he is entitled to relief because he did not

receive a final copy of the IJ’s oral decision, and (2) whether the IJ should have recused

herself based on her prior role as Chief Counsel in the Detroit District for Immigration

and Customs Enforcement (ICE). Shewchun has also filed a motion to correct the

administrative record in connection with his claim that he did not receive a proper

transcript of the IJ’s oral decision and a separate motion asking us to take judicial notice

of various items that he claims support his argument. Assuming without deciding that

we should take judicial notice of the facts that Shewchun has brought to our attention,

we nevertheless DENY Shewchun’s petition for review and DENY his motion to correct

the administrative record.

I. BACKGROUND

Shewchun is a citizen of Canada who was admitted to the United States in 1963

as a lawful permanent resident. He is a scientist in the field of alternative energy and has

held academic positions at various universities in the United States. In 1983, Shewchun

was convicted in Rhode Island of larceny and of taking money under false pretenses.

He served four concurrent one-year suspended sentences for his four counts of

conviction. A year after his Rhode Island conviction, in 1984, Shewchun was convicted

in Florida on federal charges of mail and wire fraud. Both the Rhode Island and the

Florida convictions arose out of his financial transactions with the universities that he

was working for at the time. Shewchun was sentenced to 14 years in prison on the latter

conviction, but he was released on parole in 1987 after serving approximately 3 years

of his sentence. He was imprisoned for more than 2 additional years, from late 1992 to

early 1995, for violating his parole.

In 1990, the former Immigration and Naturalization Service (the INS, the

predecessor agency to the Department of Homeland Security (DHS)) issued an order to

show cause, charging Shewchun with deportability under former § 241(a)(4) of the

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Immigration and Nationality Act (the INA), 8 U.S.C. § 1251(a)(4) (1988) (currently

8 U.S.C. § 1227(a)(2)(A)(ii)) based on his having been convicted of two crimes

involving moral turpitude not arising out of a single scheme. Then, in 1997, the INS

added the following two additional grounds supporting Shewchun’s deportability under

then INA § 241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii) (1994) (currently 8 U.S.C.

§ 1227(a)(2)(A)(iii)): his having been convicted of (1) an aggravated-felony theft

offense, and (2) an aggravated-felony fraud offense involving losses exceeding $10,000.

Elizabeth Hacker was the assigned IJ on Shewchun’s case in 1995, but she

recused herself because she recalled having discussed Shewchun’s case with a former

INS trial attorney in her previous capacity as the INS District Counsel in Detroit. In

1997, the new IJ, Marsha Nettles, found that Shewchun was deportable because he had

been convicted of two crimes involving moral turpitude and because his theft conviction

constituted an aggravated felony. But she determined that he was not deportable based

on the INS’s charge that he was convicted of a fraud offense involving over $10,000 in

losses.

The BIA, in 2003, affirmed the IJ’s determination that Shewchun was deportable

for the reasons given. But the BIA considered whether Shewchun might still be eligible

for other forms of relief because the INA had previously granted the Attorney General

broad discretion to waive the deportation of certain lawful permanent residents who were

otherwise deportable for having committed various crimes. See INS v. St. Cyr, 533 U.S.

289, 294-96 (2001) (interpreting former INA § 212(c)). In St. Cyr, the Supreme Court

held that the former INA § 212(c) continued to apply to aliens who pled guilty to crimes

and who, “notwithstanding those convictions, would have been eligible for § 212(c)

relief at the time of their plea under the law then in effect.” Id. at 326. The BIA

therefore remanded the case for the IJ to determine whether Shewchun was eligible for

a waiver from deportation under the former § 212(c), or for any other applicable relief.

Before Shewchun’s case was heard on remand, DHS added another ground of

removability (formerly deportability) against him, charging that his 1984 conviction

qualified as an aggravated felony under the INA because it constituted an attempt or

No. 09-3894 Shewchun v. Holder Page 4

conspiracy to commit fraud or deceit involving over $10,000 in losses. This new charge

was similar to the fraud charge that the IJ had previously dismissed, but the new charge

alleged that Shewchun had attempted or conspired to commit a fraudulent act rather than

that he actually committed the fraud. Although Shewchun argued before the BIA that

DHS was precluded from bringing this new charge because of the IJ’s earlier dismissal

of a substantively similar charge, he does not raise that issue in his present appeal.

Also prior to Shewchun’s case being heard on remand, he filed a motion seeking

the recusal of IJ Nettles because she had served as Chief Counsel for ICE (a part of

DHS) in Detroit from 2001 until 2005, when she became an IJ. Judge Nettles denied

Shewchun’s motion because she was not involved in his case as Chief Counsel, she had

no knowledge of it, and his claim that she might have had some responsibility over the

case was “too speculative and broad.”

On remand, Shewchun requested several forms of relief pursuant to the BIA’s

order that permitted him to seek relief under former § 212(c) of the INA and on any

other basis for which he was eligible. He sought (1) a waiver of removability under

§ 212(c), (2) to terminate his proceedings based on his pending application for

naturalization pursuant to 8 C.F.R. § 1239.2(f), and (3) a waiver of removability under

INA § 212(h) (which provides for the discretionary waiver of removability for certain

aliens who were convicted of various crimes but who are otherwise eligible to apply for

an adjustment of status). The IJ, in December 2007, denied all of Shewchun’s claims

for relief and concluded that, in addition to the already determined reasons for his

removability, he was removable based on DHS’s new aggravated-felony charge.

According to the IJ, Shewchun was statutorily ineligible for a waiver of removability

under either INA § 212(c) or § 212(h) because of his prior aggravated-felony

convictions. The BIA agreed with the IJ’s waiver-of-removability conclusions in July

2009, and Shewchun does not challenge them in the present appeal.

Shewchun’s application to terminate his removal proceedings pursuant to

8 C.F.R. § 1239.2(f) is thus the only substantive claim that he raises in his petition for

review. This regulation allows an IJ to terminate removal proceedings, thereby allowing

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the alien to obtain a final hearing on a pending application for naturalization, if the alien

“has established prima facie eligibility for naturalization and the matter involves

exceptionally appealing or humanitarian factors.” Id.

Shewchun’s motion to terminate was rejected by the BIA because it had

previously ruled in In re Acosta Hidalgo, 24 I. & N. Dec. 103 (BIA 2007), that IJs do

not have the authority to make determinations concerning an alien’s eligibility for

naturalization. The BIA concluded that Shewchun was instead required to “establish his

prima facie eligibility through an affirmative communication from [DHS].” And

because Shewchun failed to provide the necessary proof, the BIA agreed with the IJ’s

denial of his motion. The BIA also rejected Shewchun’s argument that Acosta Hidalgo

was wrongly decided. Finally, the BIA found no merit in Shewchun’s alternative claim

that DHS had in fact confirmed his prima facie eligibility for naturalization.

II. ANALYSIS

When an alien appeals from a final order of removal that is based on a criminal

offense covered in INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), such as

Shewchun does here, we have jurisdiction to review only constitutional claims or

questions of law. 8 U.S.C. § 1252(a)(2)(C)-(D). All three of Shewchun’s claims are

legal or constitutional claims and are therefore reviewable under

8 U.S.C. § 1252(a)(2)(D). See Ikharo v. Holder, 614 F.3d 622, 629 (6th Cir. 2010)

(holding that the INA allows for judicial review of legal or constitutional claims arising

out of final orders of removal for having committed various crimes specified by the

statute).

“Where, as here, the BIA reviews the IJ’s decision and issues a separate opinion,

rather than summarily affirming the IJ’s decision, we review the BIA’s decision as the

final agency determination.” Al-Ghorbani v. Holder, 585 F.3d 980, 991 (6th Cir. 2009).

“To the extent that the BIA has adopted the IJ’s reasoning, however, we also review the

IJ’s decision.” Id. “Questions of law are reviewed de novo, but substantial deference is

given to the BIA’s interpretation of the INA and accompanying regulations. The BIA’s

interpretation of the statute and regulations will be upheld unless the interpretation is

No. 09-3894 Shewchun v. Holder Page 6

arbitrary, capricious, or manifestly contrary to the statute.” Khalili v. Holder, 557 F.3d

429, 435 (6th Cir. 2009) (citations and internal quotation marks omitted).

A. Termination of removal proceedings based on prima facie eligibility for

naturalization

Shewchun challenges the BIA’s decision not to terminate his removal

proceedings under 8 C.F.R. § 1239.2(f). That provision reads as follows:

An immigration judge may terminate removal proceedings to permit the

alien to proceed to a final hearing on a pending application or petition for

naturalization when the alien has established prima facie eligibility for

naturalization and the matter involves exceptionally appealing or

humanitarian factors; in every other case, the removal hearing shall be

completed as promptly as possible notwithstanding the pendency of an

application for naturalization . . . .

8 C.F.R. § 1239.2(f).

In In re Acosta Hidalgo, 24 I. & N. Dec. at 106, the BIA held that “it is

appropriate for the [BIA] and the [IJs] to require some form of affirmative

communication from the DHS prior to terminating proceedings based on [§ 1239.2(f)].”

Shewchun argues, however, that Acosta Hidalgo was wrongly decided. He further

argues that although this court generally defers to the BIA’s interpretation of the INA

and its corresponding regulations, the BIA is not entitled to deference here because

Acosta Hidalgo “violates the plain language of 8 C.F.R. § 1239.2(f).”

Shewchun reasons that Acosta Hidalgo incorrectly interpreted § 1239.2(f)

because requiring an affirmative showing from DHS of prima facie eligibility for

naturalization “depriv[es] aliens of their ability to meet the regulatory burden of

[independently] establishing prima facie eligibility.” Under Acosta Hidalgo, according

to Shewchun, aliens lack the ability to make this showing because the decision gives

DHS the exclusive role of confirming the alien’s status.

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1. Analysis of Acosta Hidalgo

This court has not yet addressed the soundness of Acosta Hidalgo, although we

questioned the continuing viability of a prior BIA decision reaching the same conclusion

under an earlier statutory framework. See Zayed v. United States, 368 F.3d 902, 907 n.6

(6th Cir. 2004) (questioning whether Matter of Cruz, 15 I. & N. Dec. 236 (BIA 1975),

which declined to consider the question of whether an alien is prima facie eligible for

naturalization under the predecessor to § 1239.2(f), remains good law “notwithstanding

the 1990 transfer of the naturalization power from the district courts to the Attorney

General”). But all five of our sister circuits that have addressed challenges similar to

Shewchun’s have upheld Acosta Hidalgo’s interpretation of § 1239.2(f). See Barnes v.

Holder, 625 F.3d 801, 808 (4th Cir. 2010); Ogunfuye v. Holder, 610 F.3d 303, 308 (5th

Cir. 2010); Zegrean v. Att’y Gen. of United States, 602 F.3d 273, 274-75 (3d Cir. 2010);

Perriello v. Napolitano, 579 F.3d 135, 142 (2d Cir. 2009); Hernandez de Anderson v.

Gonzales, 497 F.3d 927, 933-34 (9th Cir. 2007).

These cases explain that Congress delegated to the Attorney General the “sole

authority to naturalize persons as citizens of the United States,” 8 U.S.C. § 1421(a), and

that the Attorney General has, in turn, given this authority to DHS. See, e.g., Hernandez

de Anderson, 497 F.3d at 932-33. Moreover, “[t]he text of [§ 1239.2(f)] does not

specifically authorize IJs to evaluate prima facie eligibility.” Id. at 934. Shewchun

argues that Acosta Hidalgo improperly strips the IJ of the regulatory discretion over

whether to terminate removal proceedings under § 1239.2(f). But nothing in the

regulation mandates that IJs have the authority to make this determination independent

of DHS. In light of the statutory/regulatory framework, the BIA’s view that § 1239.2(f)

requires an alien to have established prima facie eligibility outside of removal

proceedings “with a statement by the governmental authority responsible for considering

naturalization applications is not a plainly erroneous interpretation of the regulation.”

Hernandez de Anderson, 497 F.3d at 934; see also Barnes, 625 F.3d at 805 (“Because

§ 1239.2(f) leaves open the question of who has the authority to make [the

No. 09-3894 Shewchun v. Holder Page 8

prima-facie-eligibility] determination, we must defer to the BIA’s gap-filling

interpretation as long as it is not clearly erroneous.”).

Shewchun claims that DHS lacks the resources, as well as any mechanism, to

adjudicate prima-facie-eligibility determinations. He argues that placing the task of

making this decision in the hands of DHS—the entity that initiates removal proceedings

against aliens—“offends the most basic notions of due process” by leading to the absurd

result of “assigning DHS to the dual role of prosecutor and adjudicator.” But the Ninth

Circuit persuasively addressed this concern by explaining that because Congress has

“plenary” authority over immigration, the court could not conclude that assigning these

roles to DHS violates due process. Hernandez de Anderson, 497 F.3d at 935; see also

Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972) (“[P]lenary congressional power to

make policies and rules for exclusion of aliens has long been firmly established.”).

Moreover, Congress has specifically “accord[ed] priority to removal

proceedings” over naturalization proceedings. See Zayed, 368 F.3d at 905 (explaining

that 8 U.S.C. § 1429’s prohibition on the consideration of naturalization applications

while removal proceedings are pending was intended to end the “race between the alien

to gain citizenship and the Attorney General to deport him” (quoting Shomberg v. United

States, 348 U.S. 540, 544 (1955)); see also Hernandez de Anderson, 497 F.3d at 933

(concluding that § 1429 gives removal proceedings precedence over naturalization

applications). Allowing DHS to have such a high level of control over an alien’s

removal proceedings is thus consistent with the current statutory framework of

immigration law.

Shewchun counters the reasoning in Acosta Hidalgo that IJs and the BIA lack the

necessary expertise to make naturalization determinations by arguing that they both

make similar determinations in other contexts and are thus no less qualified than DHS

officers, who are not required to be lawyers, to make decisions regarding prima facie

eligibility for naturalization. In support of this argument, Shewchun asks us to take

judicial notice of two U.S. Citizenship and Immigration Services (USCIS) publications

that set out the standard for naturalization determinations. But even assuming that IJs

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and the BIA are fully qualified to make such determinations, that capability does not

alter the deference owed to the BIA’s interpretation of the authority that the plain

language of the statutory/regulatory framework delegates to each actor. Zegrean, 602

F.3d at 275 (holding that the “issue of expertise aside, we owe deference to the BIA’s

conclusion as to the scope of its jurisdiction since, whether it was interpreting a statute

or a regulation,” its view was not plainly erroneous). In other words, even if we assume

that IJs and the BIA are capable of determining whether an alien is prima facie eligible

for naturalization, the relevant question is whether they have been granted the authority

to do so.

2. Prima facie versus final eligibility determinations

All of our sister circuits that have dealt with this issue agree that IJs do not have

the authority to make assessments of prima facie eligibility under § 1239.2(f). But some

confusion remains regarding whether DHS has the discretionary authority to issue an

opinion concerning an alien’s prima facie—as opposed to conclusive—eligibility for

naturalization once removal proceedings have begun. Congress has prescribed that “no

application for naturalization shall be considered by the Attorney General if there is

pending against the applicant a removal proceeding pursuant to a warrant of arrest.”

8 U.S.C. § 1429.

The Second Circuit concluded in Perriello v. Napolitano, 579 F.3d 135 (2d Cir.

2009), that this statutory bar makes it “impossible for an alien to establish prima facie

eligibility for naturalization” while removal proceedings are pending because DHS—the

alien’s only recourse for such determinations—is prohibited from making a decision on

the issue during the pendency of the removal proceedings. Id. at 141-42. According to

this view, § 1239.2(f) “now conflicts, at least in part,” with 8 U.S.C. § 1429. Id. at 142;

see also Zegrean, 602 F.3d . at 274-75 (reaching the “awkward if not altogether

unworkable result” that “because petitioner had applied for naturalization after the

removal proceedings against him had commenced, it was impossible for him to establish

eligibility for naturalization”). These courts nevertheless concluded that the BIA’s

interpretation is not “plainly erroneous nor inconsistent with the regulation,” and thus

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left to Congress and DHS the task of reconciling the regulation with the statute.

Perriello, 579 F.3d at 142 (alterations and internal quotation marks omitted); Zegrean,

602 F.3d at 275.

Shewchun suggests that although DHS has “ultimate jurisdiction to adjudicate

the merits of the [alien’s] naturalization application,” the regulation still affords the IJ

the authority to assess the preliminary issue of prima facie eligibility for naturalization.

He argues that the Second and Third Circuits render the regulation, as interpreted by

Acosta Hidalgo, obsolete. Shewchun thus urges us to adopt his interpretation, which

allows for the regulation to coexist with the statute, instead of deferring to the BIA’s

position in Acosta Hidalgo.

But even if aliens are unable to obtain a determination from DHS regarding

prima facie eligibility while removal proceedings are pending, the Ninth Circuit has

suggested that they might be able to receive that information prior to the commencement

of removal proceedings. Hernandez de Anderson, 497 F.3d at 934. Alternatively, the

Fourth Circuit has suggested that “[t]he juxtaposition of § 1239.2(f) and § 1429 leaves

room for the possibility . . . that DHS could make a prima facie determination without

actually considering an alien’s application.” Barnes v. Holder, 625 F.3d 801, 807 (4th

Cir. 2010) (noting that the government confirmed this ability at oral argument).

The Fourth Circuit’s understanding comports with the statutory language that

“the findings of the Attorney General in terminating removal proceedings[,] or in

canceling the removal of an alien pursuant to the provisions of this chapter, shall not be

deemed binding in any way upon the Attorney General with respect to the question of

whether such person has established his eligibility for naturalization.” 8 U.S.C.§ 1429.

This language, in the very same provision that prohibits the consideration of

naturalization applications while removal proceedings are pending, seems to

acknowledge that preliminary naturalization determinations can be made during removal

proceedings, but sets out that those preliminary (or prima facie) determinations are

distinct from the ultimate merits of an application for naturalization.

No. 09-3894 Shewchun v. Holder Page 11

In other words, although the statute prohibits DHS from considering

naturalization applications while removal proceedings are pending, DHS might still be

permitted to assess whether an alien is prima facie eligible for naturalization insofar as

that decision affects the IJ’s separate consideration of whether to terminate the alien’s

pending removal proceedings. And because § 1429 mandates that this preliminary

determination will not be binding on DHS’s subsequent consideration of the alien’s

application for naturalization, § 1429 does not preclude DHS from making the prima

facie determination.

We find merit in the Fourth Circuit’s approach that recognizes the possibility that

an alien in removal proceedings with a pending application for naturalization may obtain

a prima facie determination from DHS even though the merits of the application cannot

be reached until the removal proceedings are concluded. But Shewchun contends that

this interpretation still places an alien at the whim of DHS, which currently has no

formal mechanism in place for making such determinations. We are sympathetic to

Shewchun’s argument that because 8 C.F.R. § 1239.2(f) grants to the IJ the authority to

terminate removal proceedings, DHS—the very party seeking Shewchun’s

removal—should not have the power to unilaterally prevent his removal proceedings

from being halted under this regulation. Shewchun’s argument fails, however, because

“[a]bsent the implementation by DHS of its regulation, § 1239.2(f), such an alien would

not have any possibility of review. Therefore we find it reasonable that DHS would

have the authority to limit the scope of such discretionary relief, which is only available

by virtue of its own regulation.” Barnes, 625 F.3d at 807 n.3.

We must also be mindful of the “substantial deference” that we owe to the BIA’s

interpretations of the INA and its accompanying regulations. See Khalili v. Holder, 557

F.3d 429, 435 (6th Cir. 2009) (holding that the BIA’s interpretation will be upheld unless

it is “arbitrary, capricious, or manifestly contrary to the statute” (internal quotation

marks omitted)). In sum, we conclude that the interplay between 8 U.S.C. § 1429 and

8 C.F.R. § 1239.2(f) does not detract from the deference that we owe the BIA’s

interpretation in Acosta Hidalgo.

No. 09-3894 Shewchun v. Holder Page 12

3. The IJ’s authority to make preliminary “portability”

determinations in the adjustment-of-status context

Shewchun responds by attempting to analogize his situation to a parallel line of

cases where an IJ has been found to have the authority to deal with an alien’s work visa

in the course of deciding whether to adjust the alien’s status during removal proceedings.

In these cases, various courts of appeals have reversed the BIA’s determination that an

IJ lacks the authority to determine whether an alien in removal proceedings, who seeks

an adjustment of status based on employment in the United States, is eligible to have his

or her petition for a work visa remain valid under 8 U.S.C. § 1154(j) (INA § 204(j))

where the alien changes jobs while his or her application is pending. This statute

provides that if an alien’s application for adjustment of status has remained pending for

180 days or more, the alien’s petition for a work visa “shall remain valid with respect

to a new job . . . if the new job is in the same or a similar occupational classification as

the job for which the petition was filed.” Id. This court has referred to § 1154(j) as the

“portability” provision because it allows for the portability of the alien’s application

across different jobs. See Matovski v. Gonzales, 492 F.3d 722, 725 (6th Cir. 2007).

In Matovski, this court noted that the BIA’s determination that DHS had the sole

authority to assess portability would “effectively eliminate[]” the ability of aliens in the

relevant removal proceedings to avail themselves of the provision. Id. at 735. The

Fourth Circuit, in a similar case, explained that requiring a portability determination

from DHS rather than from the IJ while an alien is in removal proceedings effectively

denies the alien the statutory provision’s protection because an alien in removal

proceedings “must seek administrative closure of the removal proceedings [in order to]

ask DHS to determine the continuing validity of his visa petition pursuant to § 204(j).”

Perez-Vargas v. Gonzales, 478 F.3d 191, 195 (4th Cir. 2007).

An alien’s predicament in these portability situations thus appears on the surface

to be similar to Shewchun’s in the present case. In both scenarios, because

administrative closure or termination of removal proceedings requires the consent of

DHS, the alien’s access to the portability or termination provision lies within the

No. 09-3894 Shewchun v. Holder Page 13

discretion of the government. See id. “If DHS were to refuse the alien’s request for

[closure or termination,] the alien would be unable to avail himself of the process which

Congress provided.” Id. Shewchun argues that just as the BIA in these cases

erroneously allowed DHS to have “unfettered discretion” to make the portability

determination, the BIA in Acosta Hidalgo incorrectly allowed DHS to have absolute

authority in determining whether an alien’s removal proceedings should be terminated

under 8 C.F.R. § 1239.2(f).

But Shewchun’s argument is unavailing because the ability of aliens in removal

proceedings to benefit from the portability provision is premised on Congress’s purpose

of providing “job flexibility for long delayed applicants” regardless of whether the

aliens are filing an initial application with DHS or are submitting an application in the

context of removal proceedings before an IJ. See Matovski, 492 F.3d at 736; see also

Perez-Vargas, 478 F.3d at 195 (holding that the plain language of the statute “applies

to all aliens who have an application for adjustment of status pending and who otherwise

satisfy the statute’s terms”). “Congress never distinguished between aliens filing an

initial application with the DHS,” who could obtain the portability assessment directly

from DHS, “and those aliens renewing their applications in removal proceedings before

an Immigration Judge.” Matovski, 492 F.3d at 736. Here, in contrast, Congress has

expressly prioritized removal proceedings over naturalization proceedings. See Zayed

v. United States, 368 F.3d 902, 905 (6th Cir. 2004); see also Hernandez de Anderson v.

Gonzales, 497 F.3d 927, 933 (9th Cir. 2007). DHS’s ability to prevent an alien from

halting ongoing removal proceedings in order to adjudicate a pending application for

naturalization is therefore consistent with Congress’s statutory scheme.

4. An IJ’s authority to make preliminary family-based visa

determinations in the adjustment-of-status context

Shewchun also relies on two cases involving aliens seeking to avoid removal

through family-based applications for adjustment of status. He points out that although

IJs lack the authority to decide the merits of family-based visa petitions, they still have

the power to consider whether such a visa petition for an alien relative is “prima facie

No. 09-3894 Shewchun v. Holder Page 14

approvable” when “determining whether to continue removal proceedings pending final

adjudication of an I-130 [family-based visa petition] filed in conjunction with an

adjustment application.” Matter of Hashmi, 24 I. & N. Dec. 785, 790 (BIA 2009). Just

as the IJ has the authority to make this prima facie determination concerning

family-based visa petitions, Shewchun argues that the IJ should also be able to determine

the alien’s prima facie eligibility for naturalization.

Shewchun also compares the present case to the decision of whether to grant a

motion to reopen removal proceedings so that the alien can pursue an adjustment of

status due to a pending family-based visa petition where the alien’s marriage was entered

into after the commencement of removal proceedings. In this situation, the IJ or the BIA

may not deny the alien’s motion to reopen solely based on the fact that DHS opposes the

motion. Sarr v. Gonzales, 485 F.3d 354, 363 (6th Cir. 2007). The IJ must instead

consider a number of factors in deciding whether to grant the motion to reopen,

including whether “the motion presents clear and convincing evidence indicating a

strong likelihood that the respondent’s marriage is bona fide.” Id. (internal quotation

marks omitted). So too in the present case, according to Shewchun, DHS should not be

able to unilaterally prevent the alien from being able to pursue naturalization while in

removal proceedings.

But just as Shewchun’s comparison of the present case to the portability context

is without merit, he ignores the “the significant interest at stake” where aliens seek to

adjust their status based on “the chance to acquire lawful permanent resident status

through a family-based visa petition.” Matter of Hashmi, 24 I. & N. Dec. at 790.

Congress specifically added § 245(e)(3) of the INA (codified at 8 U.S.C. § 1255(e)(3))

to allow aliens who do not get married until after removal proceedings have commenced

to have “one opportunity to present clear and convincing evidence of the bona fides of

the marriage.” Melnitsenko v. Mukasey, 517 F.3d 42, 51 (2d Cir. 2008) (internal

quotation marks omitted). This deference to bona fide marriages is in sharp contrast to

the statutory preference of removal proceedings over naturalization proceedings. See

8 U.S.C. § 1429.

No. 09-3894 Shewchun v. Holder Page 15

5. Judicial notice of pending administrative-closure cases

Shewchun attempts to compare his situation to one more scenario: the

administrative closure of removal proceedings. This mechanism is used to temporarily

remove the case from an IJ’s calendar or from the BIA’s docket. See In re

Gutierrez-Lopez, 21 I. & N. Dec. 479, 480 (BIA 1996). Administrative closure “does

not result in a final order. It is merely an administrative convenience which allows the

removal of cases from the calendar in appropriate situations.” Id. Shewchun asks us to

take judicial notice of two separate appeals dealing with this issue that his attorney

currently has pending before this court, captioned Cisneros v. Holder and Bermudez v.

Holder, Nos. 10-4014/4015, respectively.

His attorney argues in these separate cases, based on Matter of Hashmi, 24 I. &

N. Dec. 785 (BIA 2009), that this court should overrule the BIA’s current position that

both the alien and the DHS must consent before removal proceedings may be

administratively closed. See Matter of Lopez-Barrios, 20 I. & N. Dec. 203, 204 (BIA

1990) (reflecting the current policy). Shewchun also points out that an appeal

encompassing this issue is currently pending before the BIA. He suggests that just as

DHS should not have the unilateral authority to prevent the administrative closure of

removal proceedings, it also should not be able to singlehandedly prevent the

termination of removal proceedings under 8 C.F.R. § 1239.2(f).

To the extent that Shewchun seeks to incorporate here the legal arguments that

his attorney has made in a totally separate appeal, which he was fully capable of making

in his briefs in the present case, that is not an appropriate basis for judicial notice. See

Toth v. Grand Trunk R.R., 306 F.3d 335, 349 (6th Cir. 2002) (“Thus, judicial notice is

generally not the appropriate means to establish the legal principles governing the

case.”). Shewchun’s request might also be construed as asking us to be cognizant of the

fact that this court or the BIA might issue decisions in the near future that alter DHS’s

current control over the administrative closure of removal proceedings. But we see no

more analogy between that situation and the one before us here than we do with the other

comparisons that Shewchun has presented to us. We will therefore proceed with the

No. 09-3894 Shewchun v. Holder Page 16

disposition of the present case without concern for what might subsequently be decided

concerning the administrative closure of removal proceedings.

B. Affirmative showing from DHS of prima facie eligibility for naturalization

Shewchun alternatively argues that he has in fact presented affirmative evidence

that DHS recognizes his prima facie eligibility for naturalization, as is required by

§ 1239.2(f). He references two DHS I-797C Notice of Action documents. One of these

documents informed him that DHS had received his application for naturalization. The

other sought to schedule having his biometric data recorded. Shewchun also points to

DHS’s Naturalization Document Request, which alerted him to the requirement that he

bring additional documents to his eventual interview that were not included in his

application.

The BIA concluded that these documents are “not an affirmative communication

from DHS as to the respondent’s prima facie eligibility for naturalization as is required”

by 8 C.F.R. § 1239.2(f). We agree. The documents offered by Shewchun in support of

this claim amount to no more than DHS’s standard operating procedure in processing an

application for naturalization.

Shewchun also contends that his argument is supported by the testimony of

Thomas Brownrigg, USCIS adjudication officer. Brownrigg was asked at the hearing

before the IJ whether USCIS’s initial acceptance of a naturalization application would

“be kind of like a prima facie eligibility that this is the right application, the right fee and

the documents are attached, is that pretty much the extent of the [intake review]?” He

agreed. But this question clearly dealt with USCIS’s initial processing of applications

rather than a determination of prima facie eligibility for naturalization under 8 C.F.R.

§ 1239.2(f). Brownrigg subsequently stated that he did not know of any procedure by

which someone in removal proceedings could obtain a determination from USCIS as to

whether he or she is prima facie eligible for naturalization. The IJ thus properly decided

that Brownrigg “was unfamiliar with [Shewchun’s] case and the specific substantive

regulatory provisions that would govern [prima facie] eligibility.” Morever, we agree

No. 09-3894 Shewchun v. Holder Page 17

with the IJ’s conclusion that Shewchun “failed to provide the necessary proof, through

an affirmative communication from DHS, of [his] prima facie eligibility.”

Shewchun’s lack of success with Brownrigg’s testimony prompted him to request

a subpoena for a second, unspecified DHS officer to testify about whether Shewchun

was prima facie eligible for naturalization. But the government points out, and

Shewchun does not dispute, that he made this subpoena request five months after the IJ

had closed the evidentiary record. See 8 CFR § 1003.31(c) (“If an application or

document is not filed within the time set by the Immigration Judge, the opportunity to

file that application or document shall be deemed waived.”). The IJ denied Shewchun’s

request.

We review de novo whether the IJ’s denial of Shewchun’s request for a second

subpoena rendered his proceedings so fundamentally unfair that it violated his due

process right to reasonably present his case. See Hassan v. Gonzales, 403 F.3d 429, 436

(6th Cir. 2005) (assessing whether an alien had good cause under the Due Process

Clause for submitting evidence after the IJ’s filing deadline). Shewchun argued that the

second subpoena was necessary because DHS would otherwise have the power to

prevent the termination of removal proceedings under 8 C.F.R. § 1239.2(f) by simply

refusing to opine on whether an alien is prima facie eligible for naturalization. As

explained above, however, DHS has no obligation to attest to whether an alien is prima

facie eligible for naturalization under 8 CFR § 1239.2(f). We therefore cannot say that

the IJ’s refusal to grant Shewchun’s request to subpoena an unidentified DHS employee

five months after the record was closed, and after Brownrigg already gave extensive

testimony on Shewchun’s status, violated Shewchun’s due process rights.

C. Final transcript of the IJ’s decision

Shewchun also raises the procedural issue, in both his opening brief and in his

motion to correct the administrative record, that he allegedly received only the

preliminary copy rather than the approved, edited, and signed copy of the transcript of

the IJ’s oral decision. He correctly points out the general rule set forth in 8 C.F.R.

§ 1003.5(a) that “[w]here transcription of an oral decision is required, the immigration

No. 09-3894 Shewchun v. Holder Page 18

judge shall review the transcript and approve the decision within 14 days of receipt” of

the petitioner’s appeal. And, more fundamentally, “[d]ue process demands a reasonably

accurate and complete transcript to allow for meaningful appellate review and to allow

the alien to mount a challenge to the proceedings conducted before the IJ.” Sterkaj v.

Gonzales, 439 F.3d 273, 279 (6th Cir. 2006).

But “a mere failure of transcription, by itself, does not rise to a due process

violation.” Garza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir. 2007) (internal

quotation marks omitted). A petitioner provided with an inaccurate or incomplete

transcript bears the heavy burden of proving prejudice in order to show a due process

violation in an immigration hearing. Id. at 241-42. The petitioner “must show that a

complete and accurate transcript would have changed the outcome of the case.” Id. at

242 (internal quotation marks omitted).

Shewchun argues that we should reconsider our decision in Garza-Moreno based

on new arguments that the court did not consider in that opinion. He points to the

importance that the Department of Justice (DOJ) places on 8 C.F.R. § 1003.5, as

evidenced by the DOJ’s statements “that substantial delay in the production of

transcripts in many cases has been a serious problem,” and that the DOJ “is confident

that the [IJs] will be able to adjust their schedules to accommodate” the new timeline.

Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67

Fed. Reg. 54878-01, 54895 (Aug. 26, 2002). But this court has previously noted that,

although

we are cognizant of the dangers in an oral opinion that is forwarded for

review without an examination for errors in transcription and have

deemed it extremely poor practice not to provide the parties with the

corrected version of the IJ’s decision when it was corrected[,] . . . minor

clerical changes or transcription errors in an uncorrected decision are not

tantamount to the deprivation of due process absent a showing of

prejudice.

Bulatovic v. Holder, 351 F. App’x 978, 983-85 (6th Cir. 2009) (internal quotation marks

omitted) (citing Garza-Moreno, 489 F.3d at 241).

No. 09-3894 Shewchun v. Holder Page 19

The importance of IJs furnishing a corrected transcript of their decisions in a

timely manner thus does not change our prior determination that an IJ’s failure to do so,

absent a showing of prejudice, does not constitute a per se deprivation of due

process. Garza-Moreno, 489 F.3d at 241-42. We continue, however, to be critical of

failures to timely supply petitioners with such corrected transcripts, although we note

that the parties in the present case dispute whether such a failure occurred here.

Shewchun, in fact, does not point to any differences, much less any prejudicial

changes, between the preliminary and final copies of the IJ’s decision. The BIA

determined, and Shewchun does not deny, that the IJ’s only edits “were grammatical in

nature.” In a belated effort to overcome the weakness of his contention, Shewchun has

submitted a post-argument letter to the court under Rule 28(j) of the Federal Rules of

Appellate Procedure. He argues in the letter that he complied with the proper procedures

set forth in the BIA Practice Manual, as described by Bulatovic, 351 F. App’x at 983-84,

for raising claims of prejudice. Shewchun points to 16 specific objections that he raised

to the BIA concerning the IJ’s decision. But he acknowledges in his Rule 28(j) letter

that these 16 issues are common to both the preliminary and final copies of the IJ’s

decision.

These issues, in other words, deal with his objections to the substance of the IJ’s

decision rather than with the ways in which he was allegedly prejudiced by discrepancies

between the two copies. So even assuming that Shewchun’s enumerated objections to

the IJ’s decision, which he raises for the first time on appeal in his Rule 28(j) letter, are

properly before us, he has still failed to show any prejudice resulting from the IJ’s

alleged failure to timely furnish him with a corrected copy of the oral decision. We

therefore reject Shewchun’s due process claim concerning his inaccurate copy of the

administrative record and deny his motion to correct the same.

No. 09-3894 Shewchun v. Holder Page 20

D. IJ’s denial of Shewchun’s motion for recusal

Shewchun’s final issue on appeal is the BIA’s denial of his claim that IJ Nettles

committed reversible error by refusing to recuse herself in light of her prior position as

Chief Counsel in the Detroit District for ICE. Judges of the United States must

disqualify themselves from proceedings in which their “impartiality might be reasonably

questioned,” 28 U.S.C. § 455(a), as well as where they have, through governmental

employment, acted “as counsel, adviser or material witness concerning the proceeding

or expressed an opinion concerning the merits of the particular case,” id. at § 455(b)(3).

An IJ’s having previously served as Chief Counsel while an alien’s case was pending

does not by itself require recusal because the “Chief Counsel of a large office is unlikely

to play any role in routine decisions of this kind.” Petrov v. Gonzales, 464 F.3d 800, 803

(7th Cir. 2006) (holding that the IJ was not required to recuse himself even though he

was Chief Counsel when ICE decided to seek removal), cited with approval in

Abdulahad v. Holder, 581 F.3d 290, 296 (6th Cir. 2009). Rather, “the alien must

produce evidence that his case is the rare one in which the head of an office took part in

a routine action.” Petrov, 464 F.3d at 803.

IJ Nettles declined to recuse herself because she “did not have any direct or even

indirect contact with [Shewchun’s] case” in her former position. She in fact had “no

recollection whatsoever of [Shewchun] or his claims for relief.” In contrast, IJ Hacker,

who was the INS’s District Counsel in Detroit prior to becoming an IJ, did recuse herself

earlier in these proceedings because she “either handled or was directly involved in a

decision-making process” in Shewchun’s case. Unlike IJ Nettles, IJ Hacker recalled

having discussed Shewchun’s case with an INS trial attorney.

Shewchun responds by pointing to a document that was filed against him during

the time that IJ Nettles served as Chief Counsel of ICE’s Detroit District. But this

document was signed by an Assistant Chief Counsel, not by IJ Nettles. Shewchun’s

other allegations similarly fail to rebut the BIA’s finding that nothing in the record

suggests that IJ Nettles was involved in this case during the time that she served as Chief

Counsel. Moreover, rather than make any specific claims of bias on the part of IJ

No. 09-3894 Shewchun v. Holder Page 21

Nettles, Shewchun makes only passing references to various issues that he has not

properly preserved for appeal.

III. CONCLUSION

For all of the reasons set forth above, we DENY Shewchun’s petition for review

and DENY his motion to correct the administrative record.