Danilo Maldonado Machado v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14809
Non-Argument Calendar
____________________
DANILO MALDONADO MACHADO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A216-124-121
____________________
USCA11 Case: 20-14809 Date Filed: 03/09/2022 Page: 1 of 11

-- 1 of 11 --

2 Opinion of the Court 20-14809
Before WILSON, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM:
Danilo Maldonado Machado seeks review of the Board of
Immigration Appeal’s (BIA) final order affirming the Immigration
Judge’s (IJ) denial of his applications for adjustment of status,
waiver of inadmissibility, and asylum. Machado argues that the
BIA erred because the IJ (1) violated his constitutional right to due
process, and (2) erred in holding that he is ineligible for an adjust-
ment of status under the Cuban Adjustment Act (CAA).
I.
Machado, a native and citizen of Cuba, is a graffiti artist and
activist who uses art to protest and criticize the Castro regime. Due
to his work as an activist, he has been arrested and imprisoned by
the Cuban government on several occasions. On April 16, 2018,
Machado was admitted to the United States on a six-month B2 vis-
itor’s visa and remained past the expiration date of his visa. In No-
vember 2018, the Department of Homeland Security issued him a
Notice to Appear, charging him as removable for remaining in the
United States for a longer period than permitted by his visa. Ma-
chado conceded removability and filed an application for adjust-
ment of status under the CAA. He also filed an application for
waiver of inadmissibility related to his daughter.
USCA11 Case: 20-14809 Date Filed: 03/09/2022 Page: 2 of 11

-- 2 of 11 --

20-14809 Opinion of the Court 3
On August 14, 2019, the IJ held a hearing regarding his ap-
plications for adjustment of status and waiver of inadmissibility.1
During the hearing, the government filed a Form I-261 which con-
tained an additional factual allegation that Machado had been con-
victed of aggravated stalking under Fla. Stat. § 784.048(4). The
form listed Alexandra Martinez, Machado’s ex-girlfriend, as the vic-
tim of this crime. Martinez is also the mother of Machado’s daugh-
ter.2 As a result, the form charged him as removable for having
been convicted of a crime involving moral turpitude (CIMT). Ma-
chado admitted that he was convicted of aggravated stalking but
denied the charge of removability. The IJ sustained the charge of
removability and held a hearing on the issue.
At the hearing, both parties provided testimony and admit-
ted evidence related to Machado’s overall moral character. Ma-
chado testified that he was born in Cuba, worked as an artist and
peaceful human rights activist, and had two children. He re-
counted how he met Martinez and that, although their relationship
ended, he never threatened her in any manner nor was he capable
of being violent toward her. He acknowledged that was arrested
1 He filed his applications for asylum, withholding of removal, and relief under
the Convention Against Torture (CAT) later in the proceedings while before
the IJ.
2 Martinez, a journalist, met and interviewed Machado while he was impris-
oned in Cuba for organizing a march in the aftermath of Fidel Castro’s death.
Martinez visited him in jail three times and became pregnant with their daugh-
ter, who was born in the United States.
USCA11 Case: 20-14809 Date Filed: 03/09/2022 Page: 3 of 11

-- 3 of 11 --

4 Opinion of the Court 20-14809
on September 18, 2018, for violating a restraining order Martinez
filed against him, but stated it was a misunderstanding. Machado
stated that he did not abuse drugs, including cocaine. Machado
called several witnesses who collectively described him as a peace-
ful activist and non-violent person who did not abuse drugs or ap-
pear capable of stalking or harassing another.
The government called Martinez to testify in support of the
charge of removability. She testified that she ended her year and a
half relationship with Machado and relocated to her parents’ home
with their daughter. She said she made this decision because she
feared for her and her daughter’s safety due to Machado’s pro-
longed drug use, erratic behavior, and his rough handling of their
daughter. Martinez testified that Machado’s behavior worsened
once the relationship ended, with Machado following her, banging
on her car windows, forcing himself on her during supervised visits
in front of their daughter, and refusing to leave after such visits.
She decided to file a petition for a restraining order after Machado
sent her threatening text messages saying that she would regret
ever having said no to him, he was going to have her on a tight
leash one day, and he was going to publish photos of her.
Following Martinez’s testimony, the IJ continued the matter
to allow Machado to file an application for asylum, withholding of
removal, and protections under CAT. Machado stated in his appli-
cations that he had previously experienced mistreatment at the
hands of Cuban police and feared future harm or mistreatment if
he were to return to Cuba.
USCA11 Case: 20-14809 Date Filed: 03/09/2022 Page: 4 of 11

-- 4 of 11 --

20-14809 Opinion of the Court 5
The government then submitted documents provided by
Martinez to substantiate her testimony that the IJ marked as Ex-
hibit 12. Machado’s counsel reviewed Exhibit 12 and stated they
would object to most of the documents because nothing was
signed, certified, or notarized. Nevertheless, the IJ concluded that
the documents were in support of Martinez’s testimony.
Each party submitted further statements and documents to
corroborate their respective testimony and positions. Machado
submitted documents to support his asylum claim which included
(1) letters from friends and political acquaintances attesting to his
good and peaceable character; (2) several articles detailing his ar-
rests and notoriety in Cuba on account of his political opinions and
activism; (3) a copy of his testimony before the United States Senate
concerning human rights abuses in Cuba; and (4) a copy of the ar-
ticle written by Martinez detailing Machado’s arrest and detention
by Cuban officials.
The government’s submissions included (1) screenshots of
threatening messages purportedly sent from Machado to Martinez
in Spanish with uncertified translations; (2) a photo posted on social
media that appears to depict Machado snorting cocaine; (3) a do-
mestic violence report filed in Holland by the mother of Machado’s
other child, stating that Machado had mistreated her emotionally,
was unstable, and was psychologically blackmailing her, causing
her to be afraid and to think that he was dangerous; (4) a statement
from an art collector claiming that Machado impersonated him and
stole all of the art he had purchased from Machado since 2015; and
USCA11 Case: 20-14809 Date Filed: 03/09/2022 Page: 5 of 11

-- 5 of 11 --

6 Opinion of the Court 20-14809
(5) other social media posts that show guns and weapons allegedly
in the possession of Machado. The IJ allowed both parties submis-
sions into the record. The IJ, however, was unable to finish the
case and thus a substitute IJ was assigned.
The substitute IJ issued a written decision, stating that he
had “familiarized [himself] with the entire record of proceedings”
and was “prepared to render [his] decision.” The substitute IJ noted
that he had “considered all admitted evidence in its entirety, re-
gardless of whether specifically mentioned in the text of this deci-
sion.” The substitute IJ found that, after considering the totality of
the circumstances, Machado lacked credibility because his account
of events was inconsistent with the other evidence in the record.
The substitute IJ also determined that Machado had not established
eligibility for a waiver of inadmissibility because he had not shown
that denial of his admission to the United States would cause his
daughter extreme hardship.
As to Machado’s request for adjustment of status under the
CAA, the substitute IJ found that Machado was ineligible due to his
Florida conviction for aggravated stalking, which the substitute IJ
determined to be a CIMT. Alternatively, the substitute IJ deter-
mined that Machado did not merit a favorable exercise of discre-
tion for a litany of reasons including, but not limited to, (1) his se-
rious conviction for aggravated stalking; (2) his violation of a re-
straining order; (3) Martinez’s testimony that she feared Machado
due to his erratic behavior and drug use; (4) the photograph of Ma-
chado that appears to depict cocaine use; (5) the domestic violence
USCA11 Case: 20-14809 Date Filed: 03/09/2022 Page: 6 of 11

-- 6 of 11 --

20-14809 Opinion of the Court 7
report filed in Holland; (5) the social media posts showing photos
of firearms and weapons; (6) Machado’s lack of rehabilitation and
remorse for his actions; and (7) the fact that Machado lacked signif-
icant ties to the United States.
As to Machado’s asylum claim, the substitute IJ found that
his application for asylum was untimely and that the circumstances
did not merit an exception to the filing deadline. Further, the sub-
stitute IJ summarily found that it would not exercise its discretion
to grant Machado asylum. Nonetheless, the substitute IJ found that
Machado had suffered persecution and would suffer persecution by
the Cuban government in the future based on a protected ground
and granted Machado’s application for withholding of removal.
The BIA affirmed the substitute IJ’s findings. Machado appealed
the BIA’s denial of his applications for waiver of inadmissibility, ad-
justment of status, and asylum.
II.
On appeal, Machado makes two arguments. First, he argues
that his due process rights were violated by the admission of unau-
thenticated evidence, the giving of excessive weight to such evi-
dence, the initial IJ’s expressions of impatience and distraction dur-
ing the removal hearing, and a substitute IJ reaching an adverse
credibility finding without having witnessed the live hearing. Sec-
ond, he argues that the BIA erred in affirming the substitute IJ’s
holding that he was not eligible for an adjustment of status under
CAA based on its finding that his Florida conviction for aggravated
stalking was a CIMT. We address each argument in turn.
USCA11 Case: 20-14809 Date Filed: 03/09/2022 Page: 7 of 11

-- 7 of 11 --

8 Opinion of the Court 20-14809
A.
We first turn to Machado’s due process claim. “We review
the BIA’s decision only, except where, as in this case, the BIA ex-
pressly adopted or agreed with the immigration judge’s decision.”
Jathursan v. U.S. Att’y Gen., 17 F.4th 1365, 1372 (11th Cir. 2021).
“We review factual findings under the substantial evidence test and
legal conclusions
de novo.”
Id.
Due process requires that petitioners in removal proceed-
ings “be given notice and an opportunity to be heard.”
Lapaix v.
U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010) (per curiam).
To establish a due process violation, the petitioner must show that
he was deprived of liberty without due process and that the as-
serted errors caused him substantial prejudice.
Id. To show sub-
stantial prejudice, the petitioner must demonstrate that the out-
come of the proceeding would have been different but for the al-
leged errors.
Id.
Machado’s due process rights were not violated by the IJ’s
admission and weighing of unauthenticated evidence because such
evidence was probative of his character and relevant to the issue of
whether he would receive the requested relief.
See In re Y-S-L-C-,
26 I. & N. Dec. 688, 690 (BIA 2015) (“It is well established that the
Federal Rules of Evidence are not binding in immigration proceed-
ings, where the test for admitting evidence is whether it is proba-
tive and its admission is fundamentally fair.”);
In re D-R-, 25 I. & N.
Dec. 445, 458 (BIA 2011) (“Immigration Judges have broad discre-
tion to admit and consider relevant and probative evidence.”).
USCA11 Case: 20-14809 Date Filed: 03/09/2022 Page: 8 of 11

-- 8 of 11 --

20-14809 Opinion of the Court 9
Moreover, Machado has not shown that the outcome of the pro-
ceedings would have been different but for the admission of such
evidence.
See Lapaix, 605 F.3d at 1143.
Machado’s due process rights also were not violated by the
initial IJ’s expressions of impatience and distraction during the
hearing. Such expressions were not evidence of judicial bias and
occurred at insubstantial moments during the proceedings, and
Machado nevertheless was given notice and opportunity to be
heard.
See id. at 1143–44. Further, his due process rights were not
violated by the substitute IJ reaching an adverse credibility finding
without having witnessed the live hearing because the IJ complied
with federal regulations in doing so and considered the entire rec-
ord. 8 C.F.R. § 1240.1(b) (providing that if an IJ becomes unavaila-
ble to complete their duties, another IJ may be assigned to com-
plete the case and that the new IJ shall familiarize themself with the
record and state for the record that they have done so).
B.
We now turn to Machado’s second argument that the BIA
erred in determining that he was not eligible for an adjustment of
status under the CAA.
Whether a petitioner’s conviction qualifies as a CIMT is a
legal question that we retain jurisdiction to review.
Cano v. U.S.
Att’y Gen., 709 F.3d 1052, 1053 (11th Cir. 2013) (per curiam). We,
however, decline to review whether the Florida aggravated stalk-
ing constitutes a CIMT. This is because even if Florida aggravated
USCA11 Case: 20-14809 Date Filed: 03/09/2022 Page: 9 of 11

-- 9 of 11 --

10 Opinion of the Court 20-14809
stalking does not constitute a CIMT, the substitute IJ alternatively
denied relief based on its finding that Machado did not warrant a
favorable exercise of discretion.
See Amaya-Artunduaga, 463 F.3d
at 1250.
The BIA found that Machado did not meaningfully chal-
lenge the IJ’s discretionary finding on appeal to the BIA. Such a
finding was proper because, although Machado argued that the IJ’s
alleged due process violations undermined the discretionary anal-
yses in the case, he did not specifically challenge the substance of
the alternative discretionary finding. Thus, Machado failed to ex-
haust any argument that the substance of the IJ’s alternative discre-
tionary finding was improper, and this court lacks jurisdiction to
consider any such argument.
See Amaya-Artunduaga v. U.S. Att’y
Gen., 463 F.3d 1247, 1251 (11th Cir. 2006) (per curiam) (finding the
court lacked jurisdiction to consider a claim the petitioner did not
raise before the BIA).
The denial of discretionary relief does not implicate a con-
stitutional right or question of law, and, thus, this court does not
have jurisdiction to review the substance of the IJ’s alternative dis-
cretionary finding.
Cano, 709 F.3d at 1053;
Mohammed v. Ash-
croft, 261 F.3d 1244, 1250 (11th Cir. 2001) (a petitioner has no con-
stitutional right to discretionary relief). To the extent that Ma-
chado argues that the IJ violated his due process rights in reaching
the alternative finding, such an argument is meritless because Ma-
chado was given notice and an opportunity to be heard and failed
to raise the argument.
See Lapaix, 605 F.3d at 1143. Regardless of
USCA11 Case: 20-14809 Date Filed: 03/09/2022 Page: 10 of 11

-- 10 of 11 --

20-14809 Opinion of the Court 11
whether the Florida aggravated stalking constitutes a CIMT, the
substitute IJ’s alternative discretionary finding was a valid basis to
deny his application for adjustment of status under the CAA.
Perez
v. USCIS, 774 F.3d 960, 965 (11th Cir. 2014) (per curiam). Accord-
ingly, we affirm.
Petition Denied.
USCA11 Case: 20-14809 Date Filed: 03/09/2022 Page: 11 of 11

-- 11 of 11 --