Alicia Brumant v. Eric Holder, Jr.Alicia Brumant v. Eric Holder, Jr.
Jessica Eden Sherman, Esq., Trial Attorney, Rachel Louise Browning, Trial Attorney, Tangerlia Cox, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
Petitioner, Alicia Brumant, a native and citizen of Dominica, seeks review of the Board of Immigration Appeals (BIA) order dismissing her appeal of an order of removal due to her prior conviction of a controlled substance offense. Brumant also petitions for review of the BIA‘s order denying her motion to reconsider. Our jurisdiction is limited to colorable constitutional issues and questions of law. See
Brumant argues, in her initial and supplemental briefs, that the IJ and the BIA denied her due process by not considering and by not informing her of the apparent forms of relief available to her. Brumant did not raise this due process argument before the BIA in her appeal or in her motion to reconsider. This issue raises a procedural error that could have been corrected by the BIA. See Goonsuwan v. Ashcroft, 252 F.3d 383, 390 (5th Cir.2001). Thus, Brumant has not exhausted her administrative remedies, and we do not have jurisdiction to consider this issue. See
In her supplemental brief addressing her motion to reconsider, Brumant argues that her due process rights were violated because she was denied a continuance to properly develop the record and proffer evidence that she has a case of prima facie eligibility for U.S. Citizenship by naturalization. She also asserts that she could have argued that she was not an arriving alien under Vartelas v. Holder, — U.S. —, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012). In her motion to reconsider, Brumant did raise the issue of her potential eligibility for citizenship as a form of relief, and she asked the BIA to reconsider its decision and to remand the case to the IJ to allow her to properly request her relief options and to develop the record. Thus, this issue was exhausted by raising it in her motion to reconsider before the BIA. However, Brumant did not raise the arriving alien argument to the BIA, it is not exhausted, and we cannot consider it. See
Brumant argues that she was entitled to counsel in her immigration proceedings under the Sixth Amendment, if necessary one appointed by the Government, according to Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). She also contends that allowing her to proceed without counsel was a violation of due process under the Fifth Amendment. We address these issues.
Examining these constitutional claims de novo, we note our longstanding authority that aliens in immigration proceedings have no Sixth Amendment right to counsel. See Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir.2006); Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n. 2 (5th Cir.2001); Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir.1993). However, the absence of counsel could have deprived Brumant of due process under the Fifth Amendment “if the defect impinged upon the fundamental fairness of the hearing ... and there was substantial prejudice.” Ogbemudia, 988 F.2d at 598 (internal quotation marks and citations omitted). The IJ granted Brumant numerous continuances to obtain counsel, and the proceedings were not fundamentally unfair. See Ogbemudia, 988 F.2d at 599.
Because we lack jurisdiction to review the final order of removal, and because Brumant has not raised any colorable constitutional claims, the petitions for review are dismissed. See Alwan v. Ashcroft, 388 F.3d 507, 515 (5th Cir.2004).
DISMISSED.