Daryoush DANIAL, Plaintiff-Appellant, v. Homa D. DANIELS, Defendant-Appellee.
No. 05-10846
United States Court of Appeals, Fifth Circuit.
Decided Jan. 9, 2006.
288-291
Summary Calendar.
With regard to Petitioner‘s third argument, the administrative record provides no evidence that Petitioner made a request of the DHS under FOIA. Even if he had, Petitioner is unclear as to what information he expected to receive from the FOIA request. He states, “Such information requested by [p]etitioner could have been particularly crucial to [p]etitioner‘s defense or needed for defense strategy” (emphasis added). “Proof of a denial of due process in an administrative proceeding requires a showing of substantial prejudice.” Ka Fung Chan v. INS, 634 F.2d 248, 258 (5th Cir.1981). Petitioner fails to show any prejudice from his unsatisfied FOIA request.
Finally, Petitioner argues that the IJ abused his discretion by allowing into evidence Form I-213 (Record of Deportable/Inadmissible Alien), which records the information Petitioner offered at his NSEERS interview at the DHS office in Houston. Petitioner complains that the contents of the I-213 were obtained in a manner “fundamentally unfair to him,” in that “he was not properly advised of his rights to have counsel, or advised that any information he gave could and would likely be used against him in any future immigration proceeding.” As we have previously held, “Miranda warnings are not required in the deportation context, for deportation proceedings are civil, not criminal in nature, and the Sixth Amendment safeguards are not applicable.” Bustos-Torres v. INS, 898 F.2d 1053, 1056 (5th Cir.1990) (citing Trias-Hernandez v. INS, 528 F.2d 366, 368 (9th Cir.1975)). Likewise, the Fifth Amendment is inapplicable to Petitioner‘s case. While it is true that “deportation hearings must conform to due process standards [and] an alien‘s involuntary statements cannot be used against him in a deportation hearing,” id. at 1057, Petitioner has failed to show the requisite “coercion, duress, or improper action on the part of the immigration officer,” id. (internal quotation marks omitted), to evidence involuntariness. We find that the IJ did not abuse his discretion in admitting this form into evidence.
Thus, we AFFIRM the order of the BIA affirming the decision of the IJ issuing removal of the Petitioner to Pakistan.
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:1
Daryoush Danial appeals the district court‘s order dismissing his complaint. Reviewing the district court‘s dismissal for lack of jurisdiction de novo, Calhoun County, Tex. v. United States, 132 F.3d 1100, 1103 (5th Cir.1998), we affirm for the reasons stated by the district court, including the following:
1. The party seeking federal jurisdiction bears the burden of establishing that jurisdiction exists. See St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir.1998). Here, the claim of federal jurisdiction rests on diversity jurisdiction under
2. Danial‘s contention that the inclusion of costs helps him to reach the minimum jurisdictional amount is misplaced. By its very language
3. Danial‘s calculation of and reliance on interest, although creative, is also without merit. Interest is only considered for jurisdictional purposes where it is a basis for the suit itself. Brown v. Webster, 156 U.S. 328, 15 S.Ct. 377, 39 L.Ed. 440 (1895); see also Greene County v. Kortrecht, 81 F. 241 (5th Cir.1897) (holding that interest on a note prior to maturity would be properly considered as a part of the amount in controversy although inter
4. Danial contends that “punitive damages of $175,000 should be reasonable under the facts of this case.” Although the amount is mentioned in his appellate brief, Danial failed to even request punitive damages in his initial complaint. It was only in his response to Daniels‘s motion to dismiss that punitive damages were requested at all. Because no amount of punitive damages was requested below, the amount of punitive damages requested does not rise to the level of legal certainty required for inclusion in the jurisdictional calculation. See St. Paul Mercury Indem. Co., 58 S.Ct. at 590.
4. While Danial claims that inflation helps to cure his amount in controversy shortcomings, there is no evidence that this argument was raised below. Further, there is no evidence of an acceptable measure of inflation that would cause the remaining amount due to rise to the $75,000 required by
5. Danial‘s claim for attorney‘s fees likewise falls short. Danial‘s son has not appeared in this action on behalf of his father. Rather, Danial has been pro se in this action. Attorney‘s fees are not available to a non-attorney pro se litigant. See McLean v. Int‘l. Harvester Co., 902 F.2d 372, 373 (5th Cir.1990).4 As Danial has not been represented by counsel nor demonstrated that he is an attorney, attorney‘s fees are not available to him.
6. Even were this claim not jurisdictionally barred, dismissal would be appropriate as the action is barred by the statute of limitations. The complaint acknowledges that Daniels told Danial in a phone call in 1986 that the money had been lost.5 Even assuming, as Danial alleges, that equitable tolling was applicable due to either the fraud of Daniels or Danial‘s inability to travel to the United States, the statute of limitations ran long before the filing of this suit and thus this action is barred.6
For these reasons the district court did not err in dismissing Danial‘s complaint for lack of jurisdiction, and the order of the district court is thus,
AFFIRMED.