Hu v. Barr

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
JUN HUA HU,

Petitioner,

v.

WILLIAM BARR, United States Attorney
General,

Respondent.

No. 19-9580
(Petition for Review)
_________________________________
ORDER AND JUDGMENT
*

_________________________________
Before TYMKOVICH, Chief Judge, HOLMES, and BACHARACH, Circuit Judges.
_________________________________
Petitioner Jun Hua Hu, a native and citizen of the People’s Republic of China,
entered the United States without admission or parole on January 28, 2018. The
Department of Homeland Security initiated removal proceedings against him shortly
thereafter. Hu admitted the allegations against him and was found removable. He
then sought relief in the form of asylum, withholding of removal, and protection

*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit

July 10, 2020

Christopher M. Wolpert
Clerk of Court
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under the United Nations Convention Against Torture (CAT). After a merits hearing,
an Immigration Judge (IJ) denied Hu’s applications for relief in August of 2018.
Hu appealed the denial to the Board of Immigration Appeals (BIA). His
Notice of Appeal to the BIA was brief, stating only that “[t]the translation was
inappropriate” and that, because he did not have the help of an attorney or someone
to help him translate his evidence into English, his Due Process rights were violated.
Admin. R. at 307. In its own review of the record, the BIA identified potential
concerns regarding Hu’s competency, and therefore it sua sponte remanded the case
to the IJ for a competency evaluation. See Matter of M-A-M-, 25 I. & N. Dec. 474,
480 (BIA 2011) (“When there are indicia of incompetency, an Immigration Judge
must take measures to determine whether a respondent is competent to participate in
proceedings.”). Following a hearing, the IJ found Hu competent and reaffirmed the
prior denials of Hu’s applications for relief.
Hu appealed this IJ decision to the BIA as well. His second Notice of Appeal
was likewise brief, consisting of six sentences in which he again argued translation
errors (and the lack of assistance of counsel) rendered the proceedings unfair.
Although the second Notice indicated that a separate written brief or statement would
follow, Hu did not file one. Hu did not challenge any aspect of the competency
determination in this second appeal. The BIA affirmed the decision of the IJ and
dismissed the appeal.
In his petition for review of the BIA decision, Hu raises two issues. First, he
argues the IJ’s findings regarding his credibility were marred by translation and other
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errors. Second, he now challenges the IJ’s determination that he was competent to
proceed. Regarding the first issue, we conclude the IJ’s credibility determinations
were supported by substantial evidence, and therefore deny the petition in that
respect. Regarding the second issue, we conclude these claims were not sufficiently
exhausted and we lack jurisdiction to consider them. The petition for review is
therefore denied.
The BIA affirmed the IJ decision in a detailed decision entered by a panel of
three Board members, so we review the BIA decision as the final agency
determination and limit our review to issues specifically addressed therein. See
Diallo v. Gonzales, 447 F.3d 1274, 1279 (10th Cir. 2006). We review the agency’s
legal determinations de novo and its findings of fact for substantial evidence. Yan v.
Gonzales, 438 F.3d 1249, 1251 (10th Cir. 2006). “The agency’s findings of fact are
conclusive unless the record demonstrates that ‘any reasonable adjudicator would be
compelled to conclude to the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).
Subject to exceptions not applicable here, we lack jurisdiction to consider
arguments that were not first exhausted before the BIA. 8 U.S.C. 1252(d)(1);
Martinez-Perez v. Barr, 947 F.3d 1273, 1282 (10th Cir. 2020). “[A]n alien must
present the same specific legal theory to the BIA before he or she may advance it in
court.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010). “It is not
enough . . . to make ‘general statements in the notice of appeal to the BIA’. . . .” Id.
(quoting Torres de la Cruz v. Maurer, 483 F.3d 1013, 1018 (10th Cir. 2007)). While
we liberally construe the arguments of pro se parties, we “cannot take on the
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responsibility of serving as the litigant’s attorney in constructing arguments and
searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005).
In the first issue he raises in his petition, Hu challenges the translation of
certain statements he made before the IJ. He identifies two statements: one related
to his understanding of the purpose of the competency evaluation, and one related to
a claim about his treatment in China that bolstered the IJ’s findings that he lacked
credibility. However, in both his first and second Notice of Appeal to the BIA, he
never identified any specifically mistranslated statements. The BIA concluded Hu
had “neither identified portions of the hearing transcript which reveal his confusion
or difficulty understanding the court interpreter, nor . . . pointed to specific issues
with the interpretation on appeal.” Admin. R. at 2.
The “general statements in [Hu’s] notice of appeal to the BIA are insufficient to
constitute exhaustion of administrative remedies.” Torres de la Cruz, 483 F.3d at 1018.
To the extent Hu’s petition for review identifies new or specific translation errors or
other challenges to the findings of the IJ, we lack jurisdiction to consider them because
they were not specifically raised before the BIA. To the extent Hu’s petition asks this
Court to review the agency’s factual findings based upon arguments he did sufficiently
exhaust, the agency record does not demonstrate that any reasonable factfinder would be
compelled to reach a different conclusion than that reached by the BIA, so the petition is
denied in that respect. See Yan, 438 F.3d at 1251.
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While Hu attributes some aspects of the IJ’s factual findings to translation issues,
the IJ’s credibility findings were based not only on the two statements that Hu claims
were mistranslated, but also on numerous other inconsistencies and implausibilities in
Hu’s testimony, such as his claim that he was forced into hiding by the government even
though he had been working openly as a mechanic for fifteen years, and his claim that he
was fearful of returning to China even though he had voluntarily traveled there in 2017.
There is no basis to set aside these findings, which are sufficient by themselves to
support denial of his requests for relief.
As to the second issue raised in Hu’s petition, the IJ’s finding of competency
was based on an examination by a healthcare provider at the detention facility, as
well as Hu’s responses to questions by the IJ at the hearing. In his appeal of that
decision to the BIA, Hu did not challenge those findings. Indeed, his Notice of
Appeal to the BIA makes no reference to competency whatsoever. We therefore lack
jurisdiction to consider his challenges to that determination here. See Martinez-
Perez, 947 F.3d at 1282.
For the foregoing reasons, the Petition for Review is DENIED. The motion to
proceed in forma pauperis is granted.
Entered for the Court

Timothy M. Tymkovich
Chief Judge
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