Ta v. Garland

Case: 21-60607 Document: 00516409675 Page: 1 Date Filed: 07/27/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED July 27, 2022 No. 21-60607 Lyle W. Cayce Summary Calendar Clerk Phuc Huu Ta, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals Agency No. 203 100 248 Before Barksdale, Costa, and Engelhardt, Circuit Judges. Per Curiam:* Phuc Huu Ta, a native and citizen of Vietnam, petitions for review of the Board of Immigration Appeals’ (BIA) dismissing his appeal from a decision by the immigration judge (IJ) ordering his removal (fraudulent marriage) and denying his request for voluntary departure. He asserts he suffered substantial prejudice when the IJ violated his statutory, regulatory, * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-60607 Document: 00516409675 Page: 2 Date Filed: 07/27/2022 No. 21-60607 and due-process rights by admitting in evidence, and relying heavily on: his completed Form I-213 (record of deportable/inadmissible alien); a United States Customs and Immigration Services (USCIS) memorandum dated 15 September 2014; and the testimony of his putative wife, Dathao Thai Nguyen. Ta has failed to raise and has thereby abandoned: any challenge to the BIA’s determination that his request for voluntary departure was waived; his assertions before the BIA that the IJ erred in admitting the submission of evidence offered by the Department of Homeland Security (DHS) and in finding him removable even considering the disputed evidence; and any contention challenging the admission of the USCIS memorandum based on its allegedly untimely submission by DHS. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003) (explaining challenges not raised and briefed considered abandoned). In considering the BIA’s decision (and the IJ’s, to the extent it influenced the BIA), questions of law are reviewed de novo; factual findings, for substantial evidence. E.g., Orellana-Monson v. Holder, 685 F.3d 511, 517– 18 (5th Cir. 2012). Removal proceedings are not governed by the ordinary rules of evidence or the full range of constitutional protections. See Bouchikhi v. Holder, 676 F.3d 173, 180 (5th Cir. 2012) (explaining Federal Rules of Evidence not binding in removal proceedings); United States v. Benitez- Villafuerte, 186 F.3d 651, 657 (5th Cir. 1999) (noting “deportation hearing is a civil, not a criminal, action” and, therefore, constitutional protections afforded to defendant in criminal proceeding not available to petitioner). Nevertheless, “[t]he Fifth Amendment’s Due Process Clause protects individuals in removal proceedings” by requiring notice of the charges, a hearing before a tribunal, “and a fair opportunity to be heard”. Okpala v. 2 Case: 21-60607 Document: 00516409675 Page: 3 Date Filed: 07/27/2022 No. 21-60607 Whitaker, 908 F.3d 965, 971 (5th Cir. 2018). “The test for admissibility of evidence in a [removal] proceeding is whether the evidence is probative and whether its use is fundamentally fair so as …

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