Ruben Alva-Arellano v. Loretta E. Lynch, 811 F.3d 1064

Ruben Alva-Arellano, a Mexican national who entered the U.S. unlawfully in 2003, faced removal proceedings initiated in 2010 and admitted removability at a November 27, 2012 hearing.
The IJ denied administrative closure, granted voluntary departure conditioned on a $500 bond, and ordered removal if the bond was not posted.
Alva-Arellano obtained new counsel, appealed to the BIA, and argued the IJ violated his Fifth and Sixth Amendment rights by not advising him of asylum, withholding, or CAT relief; he also sought reopening/remand to pursue asylum.
The BIA dismissed the appeal, found no legal or factual error, concluded Alva-Arellano had not shown payment of the voluntary-departure bond, and construed his filings as a motion to remand based on newly proffered evidence.
The BIA denied reopening/remand, reasoning the evidence (news articles, State Department travel warning, affidavit) was discoverable before the hearing and that the IJ had no duty to advise him about relief under the circumstances.
The Eighth Circuit denied review, holding no due process violation occurred and the BIA did not abuse its discretion in refusing to reopen or remand.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether IJ’s failure to advise about asylum/withholding/CAT violated due process	IJ committed fundamental procedural error by not informing Alva-Arellano of possible relief	IJ had no duty to advise because alien did not express fear nor show apparent eligibility	No due process violation; IJ had no duty to advise under 8 C.F.R. §1240.11 because no fear or apparent eligibility shown
Whether BIA abused discretion by denying reopening/remand to allow asylum application	New evidence (affidavit, news articles, travel warning) warranted reopening; IJ/counsel failed to inform him about relief	Evidence was available earlier and discoverable with due diligence; lack of IJ duty or counsel ineffectiveness shown	No abuse of discretion; evidence was previously discoverable and petitioner failed to show reason for untimely presentation

Bracic v. Holder, 603 F.3d 1027 (8th Cir. 2010) (standard for due process in removal hearings requires fundamental error plus prejudice)
Garcia-Gonzalez v. Holder, 737 F.3d 498 (8th Cir. 2013) (due process review is de novo)
Valencia v. Mukasey, 548 F.3d 1261 (9th Cir. 2008) (IJ duty to inform arises when fear or apparent eligibility is shown)
Fongwo v. Gonzales, 430 F.3d 944 (8th Cir. 2005) (motion to reopen must present new, previously unavailable material facts)
Guled v. Mukasey, 515 F.3d 872 (8th Cir. 2008) (applicant expected to present strongest evidence at first hearing)
Salman v. Holder, 687 F.3d 991 (8th Cir. 2012) (motions to reopen are disfavored; counsel’s advice not excusing presentation absent ineffectiveness)
Lee v. Holder, 765 F.3d 851 (8th Cir. 2014) (BIA will not remand to consider evidence that was available earlier)