Alicia Brumant v. Eric Holder, Jr., 594 F. App'x 273

Background

Petitioner Alicia Brumant, a citizen of Dominica, seeks review of a BIA order dismissing her appeal of a removal order based on a prior controlled-substance conviction and of the BIA’s denial of her motion to reconsider.
Fifth Circuit jurisdiction is limited to colorable constitutional claims and questions of law under 8 U.S.C. § 1252(a)(2)(C),(D).
Brumant argued the IJ and BIA denied her due process by failing to inform or consider available relief and by refusing continuances to develop a prima facie naturalization claim; she also raised a Padilla-based Sixth Amendment/counsel argument and a Fifth Amendment due-process claim for proceeding without counsel.
The BIA was not presented with all due-process arguments on appeal (some claims were not raised before the BIA), raising exhaustion issues; Brumant did raise the naturalization-continuance issue in her motion to reconsider.
The BIA declined to remand for consideration of naturalization eligibility, citing lack of jurisdiction to determine prima facie eligibility; the IJ had granted multiple continuances to obtain counsel.
The Fifth Circuit found no colorable constitutional claims and dismissed the petitions for review for lack of jurisdiction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether IJ/BIA denied due process by not informing/considering available relief	Brumant: IJ/BIA failed to consider or inform her of relief options, denying due process	Government: Claim was not exhausted before the BIA for many arguments; no jurisdiction to review unexhausted claims	Dismissed for lack of jurisdiction as to unexhausted claims; exhausted portions considered on merits where appropriate
Exhaustion of administrative remedies	Brumant: Raised some claims on appeal and in motion to reconsider	Government: Many due-process arguments were not raised before the BIA and thus are unexhausted	Court lacked jurisdiction to consider unexhausted issues under §1252(d)(1)
Denial of continuance to develop prima facie naturalization claim	Brumant: Needed continuance to develop record showing prima facie eligibility for naturalization and to request relief	Government/BIA: Neither IJ nor BIA have jurisdiction to determine prima facie naturalization eligibility; BIA cited precedent refusing such remands	BIA’s refusal to remand did not deny due process because it lacked jurisdiction to adjudicate naturalization eligibility
Right to counsel / Padilla claim and Fifth Amendment due process	Brumant: Argued she was entitled to counsel (even appointed) under Padilla and proceeding without counsel violated due process	Government: No Sixth Amendment right to counsel in immigration proceedings; any Fifth Amendment defect requires showing of fundamental unfairness and substantial prejudice; IJ granted continuances to obtain counsel	Court: No Sixth Amendment right; no due-process violation shown because proceedings were not fundamentally unfair and continuances were granted; claim rejected

Key Cases Cited

Goonsuwan v. Ashcroft, 252 F.3d 383 (5th Cir. 2001) (administrative-exhaustion principle and counsel-related authority)
Wang v. Ashcroft, 260 F.3d 448 (5th Cir. 2001) (exhaustion requirement for judicial review of removal orders)
Vartelas v. Holder, 132 S. Ct. 1479 (2012) (arriving-alien doctrine referenced by petitioner)
Robertson-Dewar v. Holder, 646 F.3d 226 (5th Cir. 2011) (BIA/IJ jurisdictional limits on naturalization-related relief)
Ogunfuye v. Holder, 610 F.3d 303 (5th Cir. 2010) (BIA/IJ lack of jurisdiction to determine prima facie eligibility for naturalization)
Ogbemudia v. INS, 988 F.2d 595 (5th Cir. 1993) (standard for assessing when absence of counsel violates due process)
Mai v. Gonzales, 473 F.3d 162 (5th Cir. 2006) (no Sixth Amendment right to counsel in immigration proceedings)
Padilla v. Kentucky, 559 U.S. 356 (2010) (ineffective-assistance principles in criminal context cited by petitioner)
Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. 2004) (dismissal where no colorable constitutional claim)