Petitioners Roxana Quijano-Duran and her minor daughter, natives of El Salvador, entered the United States without valid documents in 2017. They applied for asylum, withholding of removal, and relief under the Convention Against Torture, claiming that members of the Mara 18 gang extorted and threatened them. An immigration judge denied their claims, finding Quijano not credible and that her claims failed on the merits. The Board of Immigration Appeals dismissed their appeal, noting that Quijano had waived her argument that the immigration judge was biased because she failed to provide specific details or evidence to support the claim. Quijano then petitioned the Eighth Circuit, arguing the judge prejudged her testimony and that she should not be removed because she did not meet the Department of Homeland Security's current enforcement priorities.
The court addressed two primary issues. First, regarding the due process claim, the court affirmed the BIA's application of its waiver rule. The court explained that to preserve a due process claim, an applicant must clearly and specifically inform the agency of the bases for the assertion of error. Quijano's notice of appeal contained only conclusory statements that the judge was biased and advocated for the government, without explaining how the judge's expression of doubt regarding her testimony constituted unfair bias. Furthermore, she abandoned the argument entirely in her brief to the BIA. The court cited precedent stating that agencies are not required to consider issues raised in a notice of appeal but not argued in the brief. Second, regarding the enforcement priority argument, the court held it lacked jurisdiction. Under 8 U.S.C. § 1252(g), the decision to initiate proceedings and execute a final order of removal is an exercise of prosecutorial discretion committed to the agency's judgment. The court cannot review the Secretary's decision to enforce a removal order based on discretionary priorities.
The petition for review is denied, and the BIA's order denying asylum and withholding of removal stands. The petitioners remain subject to immediate removal to El Salvador. The decision reinforces the requirement that immigration applicants must specifically articulate and develop procedural due process arguments before the BIA to avoid waiver. It also reaffirms that federal courts cannot intervene in the executive branch's discretionary decisions regarding the timing and enforcement of removal orders.
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