Mantas Kakliauskas v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10001
Non-Argument Calendar
____________________
MANTAS KAKLIAUSKAS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A089-643-408
____________________
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2 Opinion of the Court 23-10001
Before WILSON, G RANT, and L UCK , Circuit Judges.
PER CURIAM:
Mantas Kakliauskas petitions for review of the Board of
Immigration Appeals’s order denying his motion for
reconsideration of the Board’s earlier order affirming an
immigration judge’s denial of his request to continue his removal
proceedings. He also claims, for the first time on appeal, that he
has suffered a violation of his due process rights during the entire
course of proceedings. Because the first claim is meritless, and the
next unexhausted, we deny the petition in part and dismiss it in
part.
I.
In June 2002, Mantas Kakliauskas, a citizen of Lithuania,
entered the United States as a nonimmigrant on a J-1 visa, which
permitted him to remain temporarily in the country until October
2002. But Kakliauskas never left. He married U.S. Citizen Shandra
Fitzpatrick in 2006, and she filed a Form I-130 Petition for Alien
Relative to adjust Kakliauskas’s immigration status. She sat for an
interview regarding Kakliauskas’s eligibility for that form of relief,
but later withdrew her petition and testified in a sworn statement
that she had received money for marrying Kakliauskas to help him
receive his green card. The pair formally divorced in 2007.
In 2012, Kakliauskas applied for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT),
claiming that he feared persecution if he returned to Lithuania.
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23-10001 Opinion of the Court 3
While that application was pending, Kakliauskas married his
current wife, Tatiana Volcov. She too filed a Form I-130 on behalf
of Kakliauskas.
In 2015, during his pending asylum proceedings, Kakliauskas
informed the immigration judge that Volcov’s I-130 petition had
been denied because United States Citizenship and Immigration
Services (USCIS) had found that he had previously committed
fraud in his marriage to Fitzpatrick. See 8 U.S.C. § 1154(c). Because
USCIS’s decision barred him from obtaining the requested visa, the
immigration judge decided to extend his removal hearing date so
Volcov and Kakliauskas could appeal USCIS’s decision. But rather
than appeal the denial of her initial petition, Volcov filed a second
I-130 petition. The new filing included a new sworn statement
from Fitzpatrick, this time saying her marriage to Kakliauskas had
been legitimate. Fitzpatrick claimed that she only withdrew the
initial I-130 petition because she had been threatened and
intimidated by the examiner during the interview process.
Kakliauskas’s removal proceedings finally resumed in 2019,
and he moved for the immigration judge to continue the
proceedings again, this time on the ground that Volcov’s second
pending I-130 petition would likely be approved. The immigration
judge denied the motion. Specifically, the immigration judge
pointed out that this exact issue had already been raised, and that
proceedings had already been pushed back to give Kakliauskas
more time to have the marriage fraud issue reconsidered. At this
point, more than a year later, a continuance was unwarranted, the
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4 Opinion of the Court 23-10001
immigration judge said, because any possibility of a status
adjustment was merely speculative. Kakliauskas’s removal
proceedings then moved to the merits. The immigration judge
denied Kakliauskas’s petition for asylum, withholding of removal,
and relief under CAT, and ordered him removed under 8 U.S.C.
§ 1228.
Kakliauskas appealed this decision to the Board of
Immigration Appeals. He argued that the immigration judge
should not have proceeded with removal while the I-130 petition
was pending since its approval would have made him prima facie
eligible for a status adjustment. And he contended that the
immigration judge erred in concluding that he did not have an
objective fear of persecution in Lithuania.
While that appeal was pending, USCIS denied the second
Form I-130 petition from Volcov, Kakliauskas’s second wife, again
based on the marriage-fraud bar. Specifically, USCIS found that for
Kakliauskas’s first marriage, to Fitzpatrick, the documents
submitted by the couple for the original I-130 application appeared
to have been created following receipt of their interview notice;
there was no demonstrated payment toward any kind of shared
marital obligations like rent or insurance; and the couple provided
contradictory testimony about things like the marriage proposal,
where they spent their wedding night, and when they cohabitated.
On top of all these inconsistencies was Fitzpatrick’s sworn
statement that her marriage to Kakliauskas was a sham. USCIS
acknowledged Ms. Fitzpatrick’s new statement, but concluded that
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23-10001 Opinion of the Court 5
“the original statement is considered more credible than the
recantation seven years later.”
The Board dismissed Kakliauskas’s appeal. It agreed with
the immigration judge on the merits of the asylum claims and
affirmed the denial of Kakliauskas’s motion for a continuance. The
immigration judge had noted that Kakliauskas had already been
granted numerous continuances, had two I-130 petitions denied,
and still had the marriage-fraud bar in place. As a result, the Board
concluded that the record did not support a finding of good cause
for continuance. That order was entered in December 2021, and
Kakliauskas did not seek judicial review.
Instead, he filed a motion to reopen and reconsider the
Board’s decision and to remand pending complete adjudication of
Volcov’s second I-130 petition. This filing contested the Board’s
decision regarding the propriety of a continuance, but did not raise
any due process argument.
In December 2022, the Board denied the motion. It found
that it had considered the appropriate factors in reaching its earlier
decision, and that Kakliauskas had not introduced any new
evidence to the contrary. Kakliauskas timely appealed the Board’s
order.1
1 Kakliauskas only petitioned this court for review of the Board’s 2022 decision
denying his “Motion to Reconsider of the BIA decision affirming the Removal
Order of the Immigration Court,” not the underlying Board decision itself.
Moreover, even if Kakliauskas had intended this petition to seek review of the
underlying Board decision, it would have been untimely. See 8 U.S.C.
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6 Opinion of the Court 23-10001
II.
This Court reviews the Board’s decision as a final judgment,
“unless the BIA expressly adopted” the immigration judge’s
decision. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir.
2016). Then, we review the decision of both the Board and the
immigration judge. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th
Cir. 2010). We review the Board’s denial of a motion to reconsider
and the denial of a motion for a continuance for abuse of
discretion. Ferreira v. U.S. Att’y Gen., 714 F.3d 1240, 1242 (11th Cir.
2013); Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1285–86 (11th Cir.
2008). Under this standard, “review is limited to determining
whether the BIA exercised its discretion in an arbitrary or
capricious manner.” Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319
(11th Cir. 2009).
III.
A.
The Board did not abuse its discretion in declining to
reconsider the order affirming the denial of Kakliauskas’s request
to continue his removal proceedings. A motion to reconsider must
“state the reasons for the motion by specifying the errors of fact or
law” in the underlying decision. 8 C.F.R. § 1003.2(b)(1); see also 8
U.S.C. § 1229a(c)(6)(C). A motion to reconsider “that merely
republishes the reasons that had failed to convince the tribunal in
§ 1252(b)(1); Dakane v. U.S. Att’y Gen., 371 F.3d 771, 773 n.3 (11th Cir. 2004).
Accordingly, we limit our review to the order denying reconsideration.
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23-10001 Opinion of the Court 7
the first place gives the tribunal no reason to change its mind,” and
therefore, “merely reiterating arguments previously presented to
the BIA” is insufficient to succeed on this kind of motion. Calle v.
U.S. Att’y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007) (quotation
omitted). “The moving party bears a heavy burden” because
motions to reopen or reconsider are especially disfavored in
removal proceedings. Zhang, 572 F.3d at 1319; see also INS v. Abudu,
485 U.S. 94, 107 (1988).
Kakliauskas did not specify any errors of law or fact in the
Board’s order denying his appeal; he repeated the same arguments
he made below. 8 U.S.C. § 1229a(c)(6)(C). In his BIA appeal, he
argued that the immigration judge should not have proceeded with
his removal proceedings because he was likely to succeed on his
Form I-130 petition because of Fitzpatrick’s new statement, and if
that petition were approved, he would be eligible for adjustment
of status. In his motion to reconsider, Kakliauskas reasserted these
same points, arguing that Volcov’s second I-130 petition was
supported by Fitzpatrick’s “credible affidavit” and that “reasonable
discretion” called for a continuance until the adjudication of that
petition was complete. Similarly, he argued in the appeal that
Volcov had met her burden in proving that their marriage was
legitimate, and that USCIS had failed to meet its burden to show
that the first marriage was a sham. He made the same argument
in his motion to reconsider, and even appears to have copied
substantial sections of the exact same language from the first
argument into the second.
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8 Opinion of the Court 23-10001
Moreover, the underlying Board decision that Kakliauskas
wanted reconsidered was not an abuse of discretion. The standard
for granting a motion for continuance is “good cause shown.” 8
C.F.R. § 1003.29. True, in cases where removal proceedings are
occurring while an I-130 petition is pending, “discretion should, as
a general rule, be favorably exercised where a prima facie
approvable visa petition and adjustment application have been
submitted in the course of a deportation hearing.” Bull v. INS, 790
F.2d 869, 872 (11th Cir. 1986) (quoting In re Garcia, 16 I. & N. Dec.
653, 657 (BIA 1978)). But that is not an absolute rule, and it is not
an abuse of discretion to deny a request for a continuance based on
the conclusion that the movant is “statutorily ineligible for
adjustment of status,” or that there is only the “speculative
possibility” that the petition will be granted. Id.; Zafar v. U.S. Att’y
Gen., 461 F.3d 1357, 1363–64 (11th Cir. 2006).
Here, Kakliauskas did not show that he was prima facie
eligible for adjustment of his status. The marriage-fraud bar was in
place when the immigration judge made the original decision,
when the Board affirmed that decision, and when the Board denied
Kakliauskas’s motion to reconsider. So at all relevant time periods
Kakliauskas was already statutorily ineligible for Form I-130
approval. See 8 U.S.C. § 1154(c).
For both of these reasons, it was well within the Board’s
discretion to deny Kakliauskas’s motion to reconsider. Calle, 504
F.3d at 1331.
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23-10001 Opinion of the Court 9
B.
Kakliauskas argues, for the first time on appeal, that he was
deprived of his right to due process and fair proceedings. He
acknowledges that he does not have a constitutional right to the
discretionary relief of a continuance, but still contends that he has
a valid due process claim because “the totality of the record
indicates that the order of removal was issued in violation of his
right to due process and fair proceeding.” See Scheerer v. U.S. Att’y
Gen., 513 F.3d 1244, 1253 (11th Cir. 2008).
A court can only review a final order of removal if “the alien
has exhausted all administrative remedies available to the alien as
of right.” 8 U.S.C. § 1252(d)(1). Until recently, this Court has
interpreted this rule to mean that we lack jurisdiction to consider
unexhausted claims raised in a petition for review. See Amaya-
Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247 (11th Cir. 2006). But in
Santos-Zacaria v. Garland, the Supreme Court held that the
obligation to exhaust administrative remedies is a claim-processing
rule, not a jurisdictional limitation. 598 U.S. 411, 416–19 (2023). But
if properly raised by a party, mandatory claim-processing rules are
“unalterable.” See Manrique v. United States, 581 U.S. 116, 121, 125
(2017). Here, because the Attorney General raised the issue of
exhaustion in his brief, and because Kakliauskas conceded that he
did not raise a due process claim before the immigration judge or
the Board, we enforce the exhaustion rule. See Kemokai v. U.S. Att’y
Gen., 83 F.4th 886, 891 (11th Cir. 2023). We thus dismiss
Kakliauskas’s due process claim for failure to exhaust and decline
to reach the merits.
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10 Opinion of the Court 23-10001
* * *
The Board did not abuse its discretion when it denied
Kakliauskas’s motion to reconsider the order affirming the
immigration judge’s denial of his application for asylum,
withholding of removal, and relief under CAT. We do not
consider the merits of his due process claim because it was
unexhausted. Accordingly, Kakliauskas’s petition for review of the
Board’s order denying his motion to reconsider is DENIED in part
and DISMISSED in part.
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