Flora Amwayi Holmes v. Merrick B. Garland, United States Attorney General

United States Court of Appeals
For the Eighth Circuit
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No. 21-2135
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Flora Amwayi Holmes
Petitioner
v.
Merrick B. Garland, United States Attorney General
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: February 17, 2022
Filed: June 17, 2022
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Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Flora Amwayi Holmes, a native and citizen of Kenya, petitions for review of
the order of the Board of Immigration Appeals (BIA) denying her motion to remand
and dismissing her appeal from an order of removal. Having jurisdiction pursuant
to 8 U.S.C. § 1252(b)(2), we deny the petition.

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I.
On December 29, 2009, Holmes entered the United States on an F-1
nonimmigrant student visa. After she failed to comply with the conditions of her
nonimmigrant status and falsely claimed to be a United States citizen to gain
employment, the Department of Homeland Security (DHS) served Holmes with a
notice to appear (NTA). In this NTA, DHS charged her with being removeable
pursuant to 8 U.S.C. § 1227(a)(1)(C)(i), which provides for the removal of an alien
admitted as a nonimmigrant who has failed to maintain that nonimmigrant status or
to comply with the conditions of that status, and § 1227(a)(3)(D)(i), which provides
for the removal of an alien who has falsely represented herself to be a United States
citizen for any benefits such as employment.
On February 28, 2012, Holmes appeared pro se before an immigration judge
(IJ), Judge William Nickerson. Judge Nickerson read the NTA’s charges to Holmes
and asked if she understood them, and she agreed that she did. Judge Nickerson
advised Holmes of her right to be represented by counsel, provided a list of available
pro bono attorneys to Holmes, and directed Holmes’s attention to that list. Judge
Nickerson then asked Holmes if she wanted a continuance to allow her time to obtain
a lawyer. Holmes declined, stating that she wanted to represent herself. To confirm,
Judge Nickerson said, “Then you’re going to waive your right to counsel and
represent yourself?” Holmes responded, “Yes, Your Honor.”
Later in the proceeding, Judge Nickerson explained that he allows a
continuance for any reason as a matter of course and asked Holmes a second time if
she would like a continuance, to which Holmes responded that she wanted her case
heard that same day. Then, Judge Nickerson asked Holmes if the NTA’s charges
were true or false. Holmes admitted to the charges and conceded removability.
Holmes also told Judge Nickerson that she had been raped while living in Kenya and
because of this rape, she feared persecution should she return to Kenya. In turn,
Judge Nickerson provided Holmes with an application for asylum. After conducting
an off-the-record bond hearing and because he needed documentation about

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Holmes’s then-current place of residence prior to making a bond determination,
Judge Nickerson continued the matter until March 8, 2012.
Holmes obtained counsel and again appeared before Judge Nickerson on
March 8. At this time, through counsel, Holmes requested bond, which Judge
Nickerson granted. Pending the posting of this bond, Judge Nickerson continued the
matter until June 19, 2012, at which time the matter was reassigned to a second IJ,
Judge Kristin Olmanson. At the June 19 hearing, Holmes, through her counsel,
stated that she would not be seeking asylum, withholding of removal, or relief under
the Convention Against Torture (CAT). Because there was “some confusion as to
what had transpired at previous proceedings,” Judge Olmanson continued the matter
until November 6, 2012. On November 6, Holmes again appeared before Judge
Olmanson with counsel. Through counsel, she argued that Judge Nickerson had
violated her due process rights by requiring her to affirm or deny the charges
contained in the NTA without first informing her of the consequences of admitting
to those charges and despite the fact that she was appearing pro se. During this
hearing, Holmes also notified Judge Olmanson that she had recently married a
United States citizen and had an I-130 visa petition1 pending. Holmes then requested
a continuance so that, if her visa petition were approved, she could apply for an
adjustment of status.
Judge Olmanson first found that Judge Nickerson had not violated Holmes’s
due process rights because he had reviewed, in detail, the hearing’s purpose and
Holmes’s rights and had asked Holmes if she wanted a continuance so that she could
obtain an attorney. Judge Olmanson then found that because Holmes had admitted
to making a false claim of citizenship on an application for employment, she was
statutorily ineligible for adjustment of status under the Immigration and Nationality
Act (the Act). See 8 U.S.C. § 1182(a)(6)(C)(ii)(I) (“Any alien who falsely
1 See Thimran v. Holder, 599 F.3d 841, 843 (8th Cir. 2010) (“When a resident
alien marries a U.S. citizen, the citizen spouse may file a Form I-130, Petition for
Alien Relative, to acquire an ‘immediate relative’ visa for the alien spouse.” (citing
8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i)).

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represents, or has falsely represented, himself or herself to be a citizen of the United
States for any purpose or benefit . . . is inadmissible.”); see also 8 U.S.C.
§ 1255(i)(2)(A) (requiring alien to be statutorily admissible for permanent residence
in order to receive adjustment of status). And because Holmes’s request for a
continuance was based upon her hope that she could apply for an adjustment of status
following the approval of her I-130 visa petition, an adjustment for which Judge
Olmanson found that Holmes was statutorily barred, Judge Olmanson denied
Holmes’s request for a continuance. Judge Olmanson then pretermitted2 and denied
any application for adjustment of status. Finally, Judge Olmanson granted Holmes’s
request for voluntary departure.
Holmes timely appealed to the BIA. Holmes presented proof to the BIA that
her I-130 petition had been approved. Then, on October 28, 2014, while her appeal
was still pending, the BIA administratively closed Holmes’s proceedings following
a joint request from DHS and Holmes. This request followed a change in executive
policy allowing for the exercise of prosecutorial discretion. However, on April 30,
2020, following another change in executive policy, DHS filed a motion to
recalendar Holmes’s proceedings pursuant to Matter of Castro-Tum, 27 I. & N. Dec.
271, 274 (A.G. 2018) (“[T]here is no general authority for administrative closure.”),
overruled by Matter of Cruz-Valdez, 28 I. & N. Dec. 326 (A.G. 2021). Holmes did
not oppose this motion. Holmes then filed a motion to remand; she argued that
between 2014 and 2020, her circumstances had changed and, as a result, her due
process rights would be violated if the matter were not remanded to allow the IJ to
engage in further factfinding and consider her changed circumstances. With this
2 The word “pretermitted” is a term of art “used by the immigration court and
the [BIA] whenever an alien is found ineligible to apply for some form of relief.”
Gonzalez-Balderas v. Holder, 597 F.3d 869, 870 (7th Cir. 2010). In
Gonzalez-Balderas, the Seventh Circuit explained that “[t]he common dictionary
meanings of ‘pretermit’ are to leave undone, to neglect, to omit, to overlook
intentionally, to let pass without mention or notice, to interrupt or terminate, [or] to
suspend indefinitely,” before concluding that the term is “unnecessarily vague” and
simply means that the petitioner’s application for adjustment of status was
dismissed. See id.

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motion to remand, Holmes filed an I-589 application for asylum, withholding of
removal, and CAT relief. The BIA denied Holmes’s motion to remand, necessarily
foreclosing any opportunity to apply for relief via the I-589 application, and
dismissed her appeal, noting that Holmes did not otherwise challenge Judge
Olmanson’s finding that she was ineligible for an adjustment of status. Holmes now
petitions this Court for review of the BIA’s denial of her motion to remand and
dismissal of her appeal.
II.
Holmes first argues that Judge Nickerson violated her due process rights at
the February 28 hearing and, because of this violation, her admission of the charges
against her and her subsequent concession of removability should not have been
admitted in the November 6 hearing before Judge Olmanson.
We review Holmes’s allegation that Judge Nickerson violated her due process
rights de novo, as that inquiry is purely legal in nature. See Molina v. Whitaker, 910
F.3d 1056, 1060 (8th Cir. 2018). “The Due Process Clause guarantees that removal
proceedings will be ‘fundamentally fair,’” Tamenut v. Mukasey, 521 F.3d 1000,
1005 (8th Cir. 2008) (en banc) (per curiam) (citation omitted), which means that the
IJ “must be neutral and the immigrant must be given the opportunity to fairly present
evidence, offer arguments, and develop the record,” Molina, 910 F.3d at 1060
(citation omitted). “It is well-settled that, while there is no Sixth Amendment right
to counsel, aliens have a statutory right to counsel at their own expense, and are
entitled to the Fifth Amendment’s guarantee of due process of law in deportation
proceedings.” Al Khouri v. Ashcroft, 362 F.3d 461, 464 (8th Cir. 2004); 8 U.S.C.
§ 1229a(b)(4)(A) (providing that an “alien shall have the privilege of being
represented”). “The IJ must advise the alien of [her] right to have counsel present,
require [her] ‘to state then and there whether [s]he’ desires representation, . . . and
ensure that [s]he has received a list of pro bono legal-services providers.” United
States v. Yan Naing, 820 F.3d 1006, 1010 (8th Cir. 2016) (quoting 8 C.F.R.
§ 1240.10(a)(1)-(2)). During a removal proceeding, an IJ has the ability to

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“interrogate, examine, and cross-examine the alien” to determine her removability,
8 U.S.C. § 1229a(b)(1), and enjoys “broad discretion to control the manner of
interrogation to get at the truth,” Ramirez v. Sessions, 902 F.3d 764, 771 (8th Cir.
2018) (citation omitted). However, an IJ must be particularly careful when dealing
with a pro se alien like Holmes. See id. (“Considering the pro se alien’s likely lack
of legal knowledge, the difficulty of navigating immigration law, and the possibility
of expulsion upon failure to do so successfully, we have recognized ‘it is critical that
the IJ “scrupulously and conscientiously probe into, inquire of, and explore for all
the relevant facts.”’” (citation omitted)). To successfully show that Judge Nickerson
violated her due process rights, Holmes must demonstrate that he made “a
fundamental procedural error” and that prejudice resulted from that error. See
Molina, 910 F.3d at 1060.
Holmes’s argument fails because she is unable to show that Judge Nickerson
made a fundamental procedural error. See id. As the BIA correctly noted, Judge
Nickerson reviewed both the hearing’s purpose and Holmes’s rights in that hearing.
Judge Nickerson twice asked Holmes if she wanted to continue the proceedings
against her—once, specifically so that Holmes could obtain counsel—which Holmes
declined. In fact, Holmes affirmatively stated that she wished to represent herself
and waive her right to counsel. Judge Nickerson also provided a list of available pro
bono attorneys, in accordance with 8 C.F.R. § 1240.10(a)(1)-(2). Judge Nickerson
proceeded to the pleading portion of the hearing, asking Holmes if the NTA’s
charges were true or false, only after first confirming that Holmes understood the
process and her rights within that process. Ultimately, we conclude as a matter of
law that Judge Nickerson advised Holmes of her “statutory right to [have] counsel
at [her] own expense,” Al Khouri, 362 F.3d at 464, and that nothing about Judge
Nickerson’s handling of the February 28 hearing “calls into doubt the fundamental
fairness of the procedures employed,” Tamenut, 521 F.3d at 1005. Accordingly, we
find that Judge Nickerson did not violate Holmes’s due process rights. And because
there was no due process violation, it was not an error for Holmes’s admission of the
charges against her and concession of removability to be admitted in the November
6 hearing before Judge Olmanson.

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Holmes next argues that the BIA violated her due process rights when it
denied her motion to remand. We disagree. Although we ordinarily review the
BIA’s denial of a motion to remand under a “highly deferential abuse-of-discretion
standard,” see Alva-Arellano v. Lynch, 811 F.3d 1064, 1066 (8th Cir. 2016), we
review constitutional questions de novo, see Molina, 910 F.3d at 1060. Therefore,
we proceed under a de novo standard of review because Holmes’s argument is
constitutional in nature. Compare Rodriguez v. Barr, 952 F.3d 984, 991 (8th Cir.
2020) (considering, for abuse of discretion, argument that BIA erred in denying
petitioner’s motion to reopen), with Salman v. Holder, 687 F.3d 991, 995 (8th Cir.
2012) (considering, de novo, argument that BIA violated petitioner’s right to due
process in denying motion to reopen and remand). As with Holmes’s first due
process argument, here, Holmes must show that there was “a fundamental
procedural error” and resulting prejudice. See Molina, 910 F.3d at 1060.
Holmes explains that remand is necessary because she wanted to present
previously unavailable evidence, including: the fact that, since 2014, she has been
married to a United States citizen and has had a child with him, which she argues
demonstrates that her deportation would create hardship for her family unit;
evidence of her “good moral character,” though she did not specify what evidence
she would offer; a letter from a psychologist attesting to Holmes’s post-traumatic
stress disorder, which developed as a result of being raped while living in Kenya;
and Holmes’s own affidavit, in which she described her rape and explained that she
had not earlier applied for asylum, withholding of removal, and CAT relief because
she was unable to talk about her rape due to the trauma she experienced. Holmes
further argues that remand is necessary so that she can seek relief from removal via
the I-589 application that she filed alongside her motion to remand. The BIA
violated Holmes’s due process rights by denying her motion to remand, her
argument goes, because that denial simultaneously denied her an opportunity to
apply for and benefit from a grant of relief from removal.
Although Holmes’s motion is, in name, a motion to remand, we find that it is
substantively a motion to reopen the removal proceedings against her. Several

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observations lead us to this conclusion. First, Holmes relies on Clifton v. Holder,
598 F.3d 486 (8th Cir. 2010), in her motion to remand. However, a close reading of
Clifton reveals that it concerns scenarios in which an alien has requested that her
case be reopened and remanded, not simply remanded, as Holmes suggests. See id.
at 491 (explaining that case may be reopened where alien presents new material
evidence that “was not available and could not have been discovered or presented at
the former hearing” (quoting 8 C.F.R. § 1003.23(b)(3))). Second, in her motion to
remand, Holmes wrote, “A motion to remand must be accompanied by any new
evidence or application. Along with the motion to remand, [Holmes] is filing an
I-589 application for asylum and withholding of removal with [United States
Citizenship and Immigration Services].” And, in Holmes’s I-589 application that
accompanied her motion to remand, she wrote, “A motion to remand must be
accompanied by any new application for relief; therefore, [Holmes] files her motion
and application for asylum at the same time.” This language almost mirrors the
language appearing in 8 C.F.R. § 1003.2(c)(1), the regulation governing motions to
reopen before the BIA, which parallels the regulation governing motions to reopen
before the IJ, 8 C.F.R. § 1003.23(b)(3), a regulation that we relied on in Clifton, 598
F.3d at 491. Section 1003.2(c)(1) provides, in relevant part:
A motion to reopen proceedings shall state the new facts that will be
proven at a hearing to be held if the motion is granted and shall be
supported by affidavits or other evidentiary material. A motion to
reopen proceedings for the purpose of submitting an application for
relief must be accompanied by the appropriate application for relief
and all supporting documentation. A motion to reopen proceedings
shall not be granted unless it appears to the Board that evidence sought
to be offered is material and was not available and could not have been
discovered or presented at the former hearing; nor shall any motion to
reopen for the purpose of affording the alien an opportunity to apply for
any form of discretionary relief be granted if it appears that the alien’s
right to apply for such relief was fully explained to him or her and an
opportunity to apply therefore was afforded at the former hearing,
unless the relief is sought on the basis of circumstances that have arisen
subsequent to the hearing.

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(emphasis added). Holmes incorporated the language italicized above into her
motion to remand and her I-589 application.
Holmes’s use of § 1003.2(c)(1)’s language in her motion to remand and her
I-589 application suggests that Holmes was actually asking the BIA to reopen the
proceedings against her so that the IJ could consider her accompanying application
for relief, in accordance with § 1003.2(c)(1). Notably, we incorporated some of
§ 1003.2(c)(1)’s language in Alva-Arellano, a case in which the petitioner
challenged the BIA’s denial of his motion to reopen and remand. We explained that
“[t]he BIA should reopen proceedings ‘only if the new evidence presented “could
not by the exercise of due diligence have been discovered earlier.”’” Id. at 1067
(citation omitted). This is also the language that the BIA used when evaluating
Holmes’s motion and deciding that remand was inappropriate. It explained: “[W]e
are not persuaded that the letter from [Holmes’s] psychologist or her affidavit
constitute material, previously unavailable evidence.” This suggests that the BIA
treated Holmes’s motion as one to reopen. See § 1003.2(c)(1) (“A motion to reopen
proceedings shall not be granted unless it appears to the Board that evidence sought
to be offered is material and was not available and could not have been discovered
or presented at the former hearing.”).
Having concluded that Holmes’s motion to remand in fact sought to reopen
the removal proceedings, we note that “where a motion to remand is really . . . a
motion to reopen . . . , it must comply with the substantive requirements for such
motions.” Sharif v. Barr, 965 F.3d 612, 623 (8th Cir. 2020) (alterations in original)
(citation omitted)). Holmes does not argue that she has complied with such
requirements, and the BIA found that she had not. Accordingly, we conclude that
the BIA made no fundamental procedural error in denying her motion. See Salman
v. Holder, 687 F.3d 991, 995-96 (8th Cir. 2012) (finding no due process violation in
denying motion to reopen and remand where petitioner failed to show that a
fundamental procedural error occurred).

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III.
For the foregoing reasons, the petition is denied.
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