Case Information
*1 Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Juan Maximiano Ochoa-Artega (“Ochoa-Artega”) appeals the Board of Immigration Appeals’ (“BIA”) decision to dismiss his appeal of the Immigration Judge’s (“IJ”) order denying his motion for termination of his removal proceedings and subsequent order of removal. The BIA did not err because the regulations do not require that a Notice to Appear (“NTA”) be legibly signed. However, if the NTA was invalid, Ochoa-Artega was not substantially prejudiced by the defect because the decision of whether to cancel removal under 8 U.S.C. § 1229b(b)(1) is a discretionary decision by the Attorney General, and there is no constitutionally protected right to discretionary relief. Therefore, we DENY the petition.
I. BACKGROUND
In November 1994, Ochoa-Artega filed an application for asylum. Administrative Record (“AR”) at 118. In November 1997, the Immigration and Naturalization Service (“INS”) issued an NTA, charging that Ochoa-Artega, a citizen and native of Mexico, was subject to removal under INA § 212(a)(6)(A)(i) as an alien present in the United States without being admitted or paroled. Id. at 124. On the NTA, both the signature and title of the issuing officer were illegible. Id. In April 1998, Ochoa-Artega failed to appear at his removal hearing. Id. at 114. The IJ proceeded with the removal hearing, found Ochoa-Artega removable as charged, and ordered him removed to Mexico in absentia. Id.
*3 In June 2006, Ochoa-Artega filed a motion to rescind the order of removal with the IJ, and the IJ reopened the proceedings. Id. at 76, 82. In May 2007, Ochoa-Artega filed a motion to terminate proceedings. Id. at 73. In relevant part, Ochoa-Artega argued that the NTA was illegibly signed and had no printed notification as to the officer’s name or title. Id. Ochoa-Artega hypothesized that the title of the officer was “DAO,” which is the designation for an officer not authorized to issue an NTA under 8 C.F.R. § 239.1(a). Id.
The government opposed Ochoa-Artega’s motion to terminate proceedings.
Id. at 67. The government contended that although the signature on the NTA was somewhat illegible, § 239.1(a) did not require a legible signature. Id. Further, even if there was an error, Ochoa-Artega suffered no prejudice. Id. at 68-69. Finally, Ochoa-Artega failed to overcome the presumption that the immigration official properly discharged his duty. Id. at 68.
The IJ denied the motion to terminate proceedings. Id. at 62. First, the IJ found that the plain meaning of § 239.1 did not require a legible signature, and therefore Ochoa-Artega had failed to show that the NTA was insufficient or otherwise failed to meet the regulatory requirements. Id. Second, because the NTA complied with the notice requirements of § 239.1, Ochoa-Artega’s due process rights were not violated. Third, even if the government committed error, Ochoa-Artega failed to display prejudice. Id.
In August 2007, Ochoa-Artega filed a motion to issue a decision without a hearing so he could appeal to the BIA the denial of his motion to terminate. Id. at 51-52. The IJ found that Ochoa-Artega was removable as charged and ordered him removed to Mexico. Id. at 47. The IJ continued to find that the NTA’s illegible signature did not give Ochoa-Artega any substantive or procedural rights. Id. at 46-47. Finally, the IJ found that Ochoa-Artega failed to overcome the presumption that government employees regularly discharge their duties or that any such error prejudiced him. Id. at 47.
Ochoa-Artega appealed the IJ’s decision to the BIA. Id. at 31. Ochoa- Artega conceded that § 239.1(a) did not require a legible signature, but in order to assess whether the person who signed the NTA acted within the scope of his authority there needed to be a clearly legible and understandable signature. Id. at 16-17. Ochoa-Artega argued that he was prejudiced because if the NTA was terminated and a new NTA was issued in its place, he would have accumulated the ten years’ of continuous physical presence required to be eligible for cancellation of removal. Id. at 17. Further, although there is a presumption of regularity when a government official is undertaking his duty, this presumption was overcome by the hardship of being removed from the United States due to an invalid NTA. Id. at 18. Ochoa-Artega requested that a new charging document be issued according to § 239.1. Id.
*5 The BIA affirmed the IJ’s decision. Id. at 2. The BIA found that neither § 239 nor 8 C.F.R. § 1003.15 required that the issuing officer’s name or title be listed on the NTA. Id. Moreover, the illegibility of the signature and title for the issuing officer on the NTA did not provide clear evidence that the official failed to discharge his official duties properly. Id. In addition, Ochoa-Artega’s request for a reissued NTA did not change the finding that the original NTA was not defective and that the IJ correctly denied the motion to terminate. Id. at 2-3.
II. DISCUSSION
On appeal, Ochoa-Artega argues that although the NTA complied with the notice requirements of 8 U.S.C. § 1229, the NTA violated 8 C.F.R. § 239.1(a) because it is unclear who authorized the NTA due to the illegibility of the signature and title. Ochoa-Artega estimates that the title of the officer was “DAO” or “District Adjudicator Officer,” which is not an officer authorized under § 239.1(a) to issue an NTA. Ochoa-Artega contends that because § 239.1(a) does not permit the use of symbols, acronyms, or other shorthand methods for indicating the title of an immigration officer, his conclusion that an immigration officer’s name and title must be clearly legible is reasonable. Ochoa-Artega concedes that § 239.1(a) does not require a legible signature, but because the regulation specifies who is authorized to issue an NTA, there must be a legible signature and title to determine if the specified authorized official signed the NTA. Ochoa-Artega argues that he *6 was prejudiced by the issuance of the NTA because he did not satisfy the ten years of continuous physical presence necessary to establish statutory eligibility for cancellation of removal. However, he posits, if a new NTA was issued, he would now have the requisite ten years of continuous physical presence necessary for relief. Ochoa-Artega contends that although there is a presumption of regularity for government officials undertaking their duties, the hardship he has suffered overcomes this presumption.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA did not explicitly adopt the IJ’s
findings, and thus we review only the BIA’s decision. AR at 2. “To the extent that
the BIA’s decision was based on a legal determination, this court’s review is de
novo.” D-Muhumed v. United States Att’y Gen.,
The contents of an NTA are prescribed in 8 U.S.C. § 1229(a)(1) and the immigration regulations and include, inter alia, the nature of the proceedings
against the alien and the legal authority under which the proceedings are
conducted, but do not require the inclusion of a signature or title of the issuing
officer. 8 U.S.C. § 1229(a)(1); 8 C.F.R. § 1003.15(b). The regulations specify a
number of officials authorized to issue an NTA. 8 C.F.R. § 239.1(a). In addition,
*7
formal actions by administrative agencies are entitled to a presumption that they
acted properly and according to the law. F.C.C. v. Schreiber,
“To establish due process violations in removal proceedings, aliens must
show that they were deprived of liberty without due process of law, and that the
asserted errors caused them substantial prejudice.” Lonyem v. United States Att’y
Gen.,
In Kohli v. Gonzales,
Because there is no statutory or regulatory authority requiring that the
issuing officer’s signature and title be present on the NTA, the illegibility of the
signature and title does not render it defective. See 8 U.S.C. § 1229(a)(1); 8 C.F.R.
§ 239.1(a). In fact, Ochoa-Artega concedes that there is no requirement. See
Petitioner’s Brief at 10; Reply Brief at 3. It is unlikely that the official who signed
the NTA was not authorized to do so as the decision to issue an NTA is not limited
to the discretion of highly placed officers. See 8 C.F.R. § 239.1(a); Kohli, 473
F.3d at 1068. Moreover, based on the presumption of regularity granted to
government officials, it should be presumed that the proper authorized official
signed the NTA. Schreiber,
*9
In the alternative, even if the NTA was invalid, Ochoa-Artega was not
substantially prejudiced by the defect. Ochoa-Artega argues that he was prejudiced
because the invalid NTA was issued before he had satisfied the requisite ten years
of continuous physical presence necessary to establish statutory eligibility for
cancellation of removal under § 1229b(b)(1). Because the decision of whether to
cancel removal under § 1229b(b)(1) is a discretionary decision by the Attorney
General, Ochoa-Artega was not deprived of due process because the decision was
not subject to judicial review. Martinez,
III. CONCLUSION
Petitioner’s challenge to his removal proceedings on the basis that the Notice to Appeal which initiated those proceedings was invalid due to the legibility of the signature and title of the issuing officer is rejected. The applicable regulations and statute do not require legibility and petitioner can demonstrate prejudice sufficient to warrant the relief requested. Accordingly, the petition is DENIED.