United States v. Christopher Weigert

United States Court of Appeals
For the Eighth Circuit
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No. 24-2457
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Roxana Elizabeth Quijano-Duran; Valeria Nicole Moreno Quijano
lllllllllllllllllllllPetitioners
v.
Pamela Bondi
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 20, 2025
Filed: April 2, 2026
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Before COLLOTON, Chief Judge, LOKEN and BENTON, Circuit Judges.
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LOKEN, Circuit Judge.
Petitioners Roxana Quijano-Duran (“Quijano”) and her minor daughter V.M.,
natives and citizens of El Salvador, entered the United States in August 2017 without
valid entry documents. After a credible fear interview in early September, the
Department of Homeland Security issued a Notice to Appear charging petitioners as
removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I). Quijano conceded removability and
applied for asylum, withholding of removal, and relief under the Convention Against

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Torture (CAT). After a hearing at which Quijano testified, the immigration judge
denied her claims and ordered petitioners removed to El Salvador. The Board of
Immigration Appeals dismissed Quijano’s appeal because she “did not demonstrate
she suffered past persecution or has a well-founded fear of future persecution.”
Quijano petitions for review of this final agency order, arguing the BIA erred
“in not reviewing” her claim that the IJ violated her due process rights by
“prejudging” her hearing testimony. She further argues that, while her appeal was
pending, the Secretary of Homeland Security, exercising authority recognized in
United States v. Texas, 599 U.S. 670 (2023), issued a memorandum setting out
criteria for prioritizing the arrest and removal of noncitizens, and petitioners may not
be removed because they are not an enforcement priority applying those criteria.
We agree with the BIA that Quijano waived her due process argument based
on IJ bias, as it was asserted without argument or evidence, and we agree with the
government that we lack jurisdiction to consider the Department of Homeland
Security’s exercise of its removal discretion. We deny the petition for review.
I. Background and Procedural History
In the credible fear interview, in her Form I-589 Application for Asylum and
for Withholding of Removal, and in her hearing testimony, Quijano argued that she
is eligible for asylum because members of the Mara 18 gang, a widespread criminal
enterprise in El Salvador that makes money by extorting working citizens, attempted
to extort her and her family on five occasions between 2015 and 2017 by threatening
to harm or kidnap her and other members of the family if they did not meet the gang’s
demands. Her family only partially complied with the gang’s demands, did not report
the gang to the police, and no member of her family was physically harmed by the
gang. Nonetheless, Quijano and her children unlawfully entered the United States
without attempting to relocate in El Salvador, paying a “coyote” $12,000 for his
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assistance. Her brother and three sisters remained in El Salvador and have not been
threatened or harmed by the gang.
In applying for asylum and withholding of removal, Quijano contended that the
gang’s threats of violence and kidnapping were past persecution on account of her
membership in two “particular social groups” -- “Salvadoran women” and “family
relationship.” See 8 U.S.C. § 1101(a)(42)(A). She claims a well-founded fear of
future persecution if she and her children return to El Salvador because the gang
members who extorted them would seek them out and kill them if they return, there
is nowhere in El Salvador to which they could safely relocate because the gang has
influence everywhere, and the government of El Salvador is unable or unwilling to
protect them.
In 2023, the IJ denied petitioners’ application for asylum, withholding of
removal, and relief under the CAT. First, the IJ found Quijano had not presented a
credible claim because she, as petitioners’ sole witness, was not credible. Her
testimony was inconsistent on material fact questions, both internally and with other
evidence in the record. Second, even if the court found Quijano testified credibly, the
IJ found her claim failed on the merits for independently sufficient reasons: the
threats against her family did not rise to the level of past persecution; the gang
targeted her family for money rather than because of her membership in a particular
social group; her proposed social groups were not cognizable; she could relocate
within El Salvador to avoid the feared harm; and she had not shown the Salvadoran
government would be unwilling to protect her.
Quijano appealed the decision to the BIA, disputing each of the IJ’s adverse
findings and arguing she was denied due process because the IJ prejudged her hearing
testimony, evidencing unconstitutional judicial bias. The BIA dismissed the asylum
claims on the merits after noting that Quijano waived the bias argument. The BIA
Appellate Immigration Judge’s decision stated in a footnote:
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In the Notice of Appeal, [Quijano] alleged that the Immigration Judge
exhibited bias and did not act as a neutral arbiter. However, she has not
elaborated on these general statements and provided no example or
detail to support them. Because [Quijano] has not meaningfully pursued
this issue, we deem it waived.
In the petition for review, Quijano challenges the BIA’s waiver ruling and argues she
is not an enforcement priority. She does not argue her claims were wrongly denied
on the merits.1
II. Discussion
“We review the BIA’s decision, as it is the final agency action, but to the extent
that the BIA adopted the findings or reasoning of the IJ, we also review the IJ’s
decision as part of the final agency action.” Yusuf v. Garland, No. 22-1124, 2022
WL 17883810, at *1 (8th Cir. Dec. 23, 2022). “We review the BIA’s legal
determinations de novo and employ the deferential ‘substantial evidence’ standard
when reviewing the BIA’s factual determinations.” Rosales-Reyes v. Garland, 7
F.4th 755, 759 (8th Cir. 2021). “To qualify for asylum, the burden is on the applicant
to establish that he or she is a refugee as defined in the statute.” Davila-Mejia v.
Mukasey, 531 F.3d 624, 627 (8th Cir. 2008), citing 8 C.F.R. § 1208.13(a).
1. Quijano first argues the BIA erred “in not reviewing” her claim that the IJ
violated her due process rights by “prejudging” her hearing testimony. The
government argues there was no error because the BIA properly applied its waiver
rule in rejecting this contention.
1The BIA noted that an applicant who fails to demonstrate eligibility for asylum
cannot meet the more stringent standard for withholding of removal and that Quijano
did not meaningfully challenge the IJ’s denial of CAT relief, thereby waiving that
issue. Quijano’s brief on appeal does not address these issues.
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The Attorney General’s immigration regulations under the Immigration and
Nationality Act establish within the Department of Justice an Executive Office for
Immigration Review (EOIR), 8 C.F.R. § 1003.0, and a Board of Immigration Appeals
with the authority “to prescribe procedures governing proceedings before it” with the
approval of the EOIR Director, 8 C.F.R. § 1003.1(d)(4). Acting under this authority,
the BIA has developed its own waiver rule.
It is now well-established, in this circuit and others, that “[w]here the agency
properly applies its own waiver rule . . . we will not permit an end run around those
discretionary agency procedures by addressing the argument for the first time in a
petition for judicial review.” Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 440 (8th
Cir. 2008) (citation omitted). Quijano does not argue otherwise. Instead, she argues
the BIA misapplied its waiver rule in this case because she adequately raised her due
process argument -- her appeal to the BIA specifically pointed to pages in the hearing
transcript where the IJ, early in her testimony, stated that her testimony was not
believable, thereby showing bias by prejudging her testimony before ultimately
finding that she was not credible and denying petitioners’ application for asylum.
We conclude the BIA properly applied its own waiver rule in finding the bias
due process argument waived because Quijano raised it inadequately in her notice of
appeal and then abandoned it in her brief to the BIA. Quijano had the burden to
clearly and specifically inform the BIA of the bases for her assertions of error. See
Matter of O-R-E-, 28 I. & N. Dec. 330, 336 n.5 (BIA 2021) (deeming an argument
waived that had been mentioned but not developed). Instead, she made conclusory
allegations, which were not sufficient to preserve the issue for BIA review. As the
BIA explained this waiver rule in Matter of Valencia:
The regulations provide for summary dismissal of an appeal where the
party concerned fails to specify the reasons for the appeal. . . . It is
essential to the Board’s adjudication of an appeal that the reasons given
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on the Notice of Appeal be as detailed as possible so that the alleged
error can be identified and addressed. Without a specific statement, the
Board can only guess at how the alien disagrees with the immigration
judge’s decision. . . . Depending on the complexity of the issues raised,
a brief may be essential to an adequate presentation of the appeal. In all
cases, however, the reasons for an appeal must be meaningfully
identified on the Notice of Appeal.
19 I. & N. Dec. 354, 355 (BIA 1986); see Amaya v. Garland, 15 F.4th 976, 986 (9th
Cir. 2021) (“Neither [Amaya’s] notice of appeal nor his attachment thereto made a
clear, non-conclusory argument in support of his claim,” so the BIA did not ignore
a clearly-identified due process argument.); Yusuf, 2022 WL 17883810, at *3.
Here, the relevant section of Quijano’s notice of appeal to the BIA stated in full
that the IJ:
exhibited bias in his handling of my case. The IJ was advocating for the
DHS’ behalf instead of serving as a neutral body. The IJ expressed that
he did not believe my testimony shortly after the hearing started. I felt
I was prejudiced in the proceedings.
These statements are conclusory. They did not explain why an IJ’s expression of
doubt as to the veracity of a witness who has made contradictory statements indicated
unfair bias. An IJ is tasked with determining whether an applicant for asylum has
presented a credible claim. “Even ancillary inconsistencies in a petitioner’s testimony
support adverse credibility findings.” Zongo v. Garland, 71 F.4th 656, 659 (8th Cir.
2023) (quotation omitted). Nor did the brief address whether the IJ had access to the
credible fear interview transcript and Quijano’s earlier declarations before the hearing
started. The determination whether an applicant for asylum has presented a credible
claim is based on the entire record of the removal proceedings, not just the applicant’s
hearing testimony. Nor did these statements explain how petitioners were prejudiced
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by the alleged bias. Prejudice is a necessary element of a procedural due process
claim. Briones-Sanchez v. Heinauer, 319 F.3d 324, 327 (8th Cir. 2003).
In addition to the deficiencies in the notice of appeal, Quijano abandoned the
due process argument in her counseled appeal brief to the BIA. The argument is not
mentioned at all, including in the statement of issues. The sole sentence that aligns
with Quijano’s current due process claim -- “The IJ showed bias and prejudged [the
case by] stating that ‘I’m beginning to not believe anything you’re telling me’” -- was
part of a separate argument not raised in this petition for review -- that the IJ’s
credibility determination was clearly erroneous. Therefore, the BIA did not err in
determining that Quijano had not preserved her due process argument. See Abebe v.
Mukasey, 554 F.3d 1203, 1207-08 (9th Cir. 2009) (BIA not required to consider
issues raised in notice of appeal but not argued in BIA brief).
2. Quijano additionally challenges the executive branch’s decision to remove
her when she is not an enforcement priority. We agree with the government that we
lack jurisdiction to resolve this claim because the Department of Homeland Security’s
decision to remove is an exercise of its prosecutorial discretion, which includes the
decision to initiate proceedings and to execute a final order of removal. 8 U.S.C.
§ 1252(g); S-Cheng v. Ashcroft, 380 F.3d 320, 324 (8th Cir. 2004). The claim is
therefore dismissed.
For the foregoing reasons, we deny the petition for review.
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