## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-1006

___________ Sylvanus Biko Freeman, *
* Petitioner, * * On Petition for Review of an v. * Order of the Board of * Immigration Appeals. Eric H. Holder, Jr., United States * Attorney General, *
* Respondent. *

___________ Submitted: October 21, 2009 Filed: March 8, 2010

___________ Before COLLOTON, BEAM, and BENTON, Circuit Judges.

___________ BEAM, Circuit Judge. Sylvanus Biko Freeman, a citizen of Libe ria, petitions for review of the Board of Immigration Appeals' ("BIA") denial of his motion to reopen his removal proceedings. We deny the petition in part and dismiss the remainder for lack of subject matter jurisdiction.

I. BACKGROUND

In 1997, Freeman entered the United States as a refugee. In 2006, he pled guilty in Minnesota to Felony Financial Transaction Card Fraud, for which he-2- received a suspended sentence of one year and one day. Less than a year later, Freeman violated his parole, and his su spended sentence was, accordingly, revoked.

On November 14, 2007, the Department of Homeland Security ("DHS") initiated removal proceedings against Fr eeman and served him with a Notice to Appear. The Notice to App ear charged Freeman as rem ovable and inadmissible for being (1) an alien convicted of committing an act which constitutes a crime involving moral turpitude, in violation of Immigr ation and Nationality Act ("INA") section 212(a)(2)(A)(i)(I); and (2) an alien who at the time of entry was not in possession of a valid entry document, in violation of INA section 212(a)(7)(A)(i)(I). As a result of these charges, DHS elect ed to detain Freeman.

While detained, Freeman had three master calendar hearings. Freeman received notices prior to each of these hearings. A ll of these notices, as well as the original Notice to Appear, contained warnings i ndicating that it was Freeman's responsibility to keep his address current by filing appropriate change of addr ess paperwork and that his failure to appear at any hearing c ould result in immediate removal. Freeman remained in custody until January 14, 2008, at which point DHS released him on his own recognizance. This required him to pa rticipate in the Intensive Supervision Appearance Program ("ISAP") using electronic ankle bracelet monitoring. The record indicates that upon release from DHS custody, Freeman stated that his address would be 14382 Wintergreen Street, Andover, Minne sota. Accordingly, DHS sent a Form I-830 notice of alien's address to the immigr ation court, indicating that Freeman would be residing at that location.

On January 22, 2008, DHS sent notice to 14382 Wintergreen Street informing Freeman of his next hearing in May. Fr eeman failed to appear at that hearing. Accordingly, the Immigration J udge ("IJ") ordered him removed in absentia

.1 The waiver actually states that it waives INA section 212(a)(2)(A)(i)(II). Because we believe that this reference was a mere clerical error, we correct it for purposes of this discussion. Cf. Reyes-Morales v. Gonzales , 435 F.3d 937, 943 (8th Cir. 2006) (noting that clerical errors are purely ministerial and thus harmless).
-3- On January 9, 2008, prior to being or dered removed and while Freeman was still in custody, Freeman r eceived a waiver of inadmissibility under INA section 209(c) (codified at 8 U.S.C. § 1159(c)), wh ich waived the application of section 212(a)(2)(A)(i)(I) 1 as it relates to the offense of Felony Financial Transaction Fraud. Freeman did not present this waiver to the IJ prior to being ordered removed.

On June 13, 2008, Freeman filed a pr o se motion to reopen his proceedings alleging that he never received notice of the May hearing. Specifically, Freeman contended that he was livi ng at 3639 Girard Avenue in Minneapolis, Minnesota, not 14382 Wintergreen Street in Andover, Minne sota. The IJ denied the motion to reopen. On appeal, the BIA remanded th e matter for an evidentiary hearing to determine whether Freeman ha d received proper notice of th e hearing (i.e. whether he had filed a change of address form).

On remand, the IJ held two evidentiary h earings to develop the record. At the first of those hearings, Freeman told the IJ that ISAP did not give him an ankle bracelet. However, the record indicated th at Freeman was in f act placed on the ISAP electronic monitoring program, wore an a nkle bracelet, and was required to check in twice a week. And, the record indicatedthat Freeman violated the electronic monitoring and failed to show up in person at his appointments.

At the second hearing, Freeman moved to subpoena Anna Neal, a supervisory officer at ISAP, so that he might cross- examine her regarding the ISAP program and procedures. The IJ denied that subpoena , found Freeman not credible, and held that Freeman had not filed a change of address form. The IJ's adverse credibility holding was based on four specific findings: (1) Freeman was not forthcoming about his2 The Supreme Court recently held that federal "courts retain jurisdiction to review" the BIA's decision to grant or deny a motion to reopen. Kucana v. Holder , 130 S. Ct. 827, 838 (2010). However, the C ourt expressly did "not reach the question whether review of a reopening denial woul d be precluded if the court would lack jurisdiction over the alien's unde rlying claim for relief." Id. at 839 n.17. Thus, Kucana does not alter our Hanan precedent.
-4- participation in the ISAP ankle bracelet monitoring program; (2) Freeman missed several of his ISAP face-to-f ace meetings and violated the ankle bracelet monitoring program; (3) it was implausible to believe Freeman's assertion that he provided two different addresses on the same day; and (4) Freeman's supporting documentation was vague and unsubstantiate d. Accordingly, the IJ deni ed the motion to reopen and the BIA affirmed. Freeman petitions us for review of this denial.

II. DISCUSSION

A. Jurisdiction

As a preliminary matter, we must dete rmine whether we have jurisdiction to review the BIA's denial of Freeman's motion to reopen. "If an alien is a criminal alien under 8 U.S.C. § 1252(a)(2)(C), our jurisdicti on to review his denial of a motion to reopen a final order of removal is limited to constitutional claims and questions of law." Hanan v. Mukasey , 519 F.3d 760, 763 (8th Cir. 2008) (citing 8 U.S.C. § 1252(a)(2)(C)-(D)). 2

An alien is a "criminal alien" if he "is removable by reason of having committed a criminal offense covered in[, among othe r sections,] section 1182(a)(2)." 8 U.S.C. § 1252(a)(2)(C). As the Eleventh Circuit has noted, determining whether an alien is a "criminal alien" involves a three-step inqui ry in which we ask whether the individual is "(1) an alien (2) who is removable (3 ) because he committed a criminal offense [covered in section 1182(a)(2)]." Balogun v. United States Att'y Gen. , 304 F.3d 1303,3 In his brief Freeman argues that he r eceived a 212(c) waiver of inadmissibility. However, this contention is erroneous for two reasons. First, there is no 212(c) waiver in the record. Second, INA secti on 212(c) was repealed in 1996. SeeINS v. St. Cyr , 533 U.S. 289, 297 (2001). Since Freeman pled guilty after 1996, hecould not apply for a 212(c) waiver. Cf. id. at 326 (holding that "212(c) relief remains available for aliens" who pled guilty prior to 1996). Therefore, we do not address the effect of a 212(c) waiver on our jurisdiction.

4 Of course, if he had been granted ad justment of status based upon receipt of the 209(c) waiver, that may have altered wh ether he was removable. However, since Freeman also failed to appear at his adjustment of status hearing, his application for adjustment of status was denied.
-5- 1310 (11th Cir. 2002). Freeman admits that he is an alien and that he committed "a crime involving moral turpitude" pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I). However, he contends that he is not removable for that conviction because he received a 212(c) waiver of inadmissibility. 3 We assume Freeman intended to direct our attention to the 209(c) waiver, and we still find him removable.

A 209(c) waiver (codified at 8 U.S.C . § 1159(c)) does not make an alien immune from removal. Instead, it waives a ground of inadmissibility for the purpose of seeking adjustment of status . 8 U.S.C. § 1159(c) (providing that certain provisions of the INA "shall not be applicable to any alien seeking adjustment of status under this section, and the Secretary of Homeland Secu rity or the Attorney General may waive [other provisions] with respect to such an alien " (emphasis added)). Since a 209(c) waiver only deals with waiving grounds for inadmissibility for the purpose of seeking adjustment of status, the waiver Freeman placed in the record has no bearing on whether he was removable for his conviction. 4

Although Freeman did place the 209(c) waiverinto the record, he has not, until now, asserted that the waiver makes him immune from removal for committing a crime of moral turpitude. It was Freeman's burden to prove that he was eligible for relief from removal. 8 U.S.C. § 1229a(c)(4)(A). He failed to meet this burden. Thus,-6- he is a criminal alien under 8 U.S.C. § 1252( a)(2)(C), and our review of his motion to reopen is limited solely to constitu tional claims and questions of law.

B. Legal Claims

To the extent Freeman raises any legal or constitutional claims, we review those issues de novo. Hanan , 519 F.3d at 763. But, given our limited jurisdiction, "[a] petitioner cannot evade [our] jurisdictional barrier by couching a factual argument in legal or constitutional terms; he must present a colorable legal or constitutional claim." Dukuly v. Filip , 553 F.3d 1147, 1149 (8th Cir. 2009).

Freeman asserts that he was denied due process during both the removal and reopening proceedings. The Fifth Amendm ent's Due Process Clause entitles Freeman to a fair hearing. Kipkemboi v. Holder , 587 F.3d 885, 890 (8th Cir. 2009); Tun v. Gonzales , 485 F.3d 1014, 1025 (8th Cir. 2007). To show that the proceedings were unfair in violation of due process, Fr eeman "must demonstrate both a fundamental procedural error and resulting prejudice." Kipkemboi , 587 F.3d at 890; see also Dukuly , 553 F.3d at 1149 ("To establish a violation of due process rights, a petitioner must show fundamental unfairness or pro cedural irregularities that prejudiced his case."). "In this context, prejudice m eans a showing that the outcome of the proceeding may well have been different had there not been any procedural irregularities." Tun , 485 F.3d at 1026.

Freeman asserts three instances in which he believes he was denied due process. First, he asserts that the immigration court violated his due process by not specifically warning him of the consequences of a failureto appear. In support of his assertion, Freeman directs our attention to 8 U.S.C. § 1229a(b)(5) & (7), which provides that the immigration court give an alien written and oral notice of the consequences of a failure to appear at a removal hearing. Contrary to Freeman's assertions, the immigration court complied with the strictures of 8 U.S.C. § 1229a(b)(5) & (7).5 Notably, DHS sent two Form I-830s to th e immigration court. Both identified that Freeman reported his address to be 14382 Wintergreen Street.
-7- Specifically, Freeman received written and or al notice in the form of the November 14, 2007, Notice to Appear. The Notice to Appear provided written warning to Freeman both of the consequences of a failu re to appear and his duty to update his address during removal proceedings. And, at the time he received the Notice to Appear, Freeman acknowledged that the pr ocess server read the warnings aloud. Further, Freeman received additional written notice of the consequences in the form of three separate notices of hearings, a ll of which were personally served on Freeman while he was in DHS custody. Thus, Freem an was provided with ample notice of the consequences of a failure to appear.

Second, Freeman contends that he di d not receive proper notice of the May hearing. Pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii), if Freeman did not receive proper notice of his May hearing, then the IJ's in absentia order was in error. However, if the alien moves and fails to provi de the immigration court withhis new address, then the alien is not entitled to written notice. 8 U.S.C. § 1229a(b)(5)(B). Here, the record shows that DHS mailed Freeman notice of his May hearing to 14382 Wintergreen Street. And, upon out-processing Freeman, DHS properly filed a Form I-830 notifying the immigration court that Fr eeman provided DHS with 14382 Wintergreen Street as his address. 5 To the extent that Freeman now argues that he was living at 3639 Girard Avenue, it was his ob ligation to file a change of address form. 8 U.S.C. § 1229a(b)(5)(B). As noted above, Freeman wa s amply warned of this duty. Here, the IJ made a factual determin ation that Freeman did not filea change of address. We have no jurisdiction to review that factual determination. Pursuant to that determination, Freeman was afforded proper notice of the May hearing.

Third, Freeman contends that the IJ denied him due process by excluding the testimony of Anna Neal. "[ D]ue process concerns dictate that immigration judges do6 We recognize that Freeman raises two additional arguments in his petition. First, he challenges the IJ's credibility determination. Because adverse credibility determinations are a finding of fact, Sow v. Mukasey , 546 F.3d 953, 956 (8th Cir. 2008), we lack jurisdiction to review the IJ's credibility finding. Second, he asks that we remand this case for adjudication of his N-600 Application for Certificate of Citizenship. Since Freeman di d not file the application un til after he filed his motion to reopen, and since DHS has not yet made a determination on that application, the unadjudicated application is not grounds for us to remand this record. Cf. Tebyasa v. Holder , 593 F.3d 707, 709 (8th Cir. 2010) (noting that in the context of an I-130 application that "[t]he BIA will grant a mo tion to reopen [on the grounds of an I-130
-8- not enjoy complete discretion in the ad mission and exclusion of evidence." Tun , 485 F.3d at 1026. "To comport withthe requirements of due process . . . the immigration court cannot unfairly prevent a petitioner from presenting probative evidence and making a record." Id. Freeman asserts that Ms. Neal's testimony was necessary to develop the procedures used when proce ssing someone out of DHS custody into the ISAP ankle bracelet program and whether th e ankle bracelet monitoring equipment could be connected to a cell phone.

At the time Freeman sought to admit Ms . Neal's testimony, the only issue was whether Freeman had filed a change of addre ss. The record establishes that Ms. Neal was not the individual who actually out-p rocessed Freeman. Thus, her testimony as to what procedures were used was not pr obative. And, to the extent that crossexamining Ms. Neal on the salient points might have been probative, Freeman still must show that "the outcome of the proceed ing may well have beendifferent had" the IJ not excluded Ms. Neal's testimony. Id. Since the IJ restedher negative credibility finding in part on the ISAP records' indication that Freeman had violated ISAP's monitoring program, Freeman contends Ms. Neal's testimony might buffer or rebut this finding. However, even if Ms. Neal 's testimony would rebut this finding, the IJ also found Freeman incredible on three other grounds. Thus, Ms. Neal's testimony would not have changed the outcome of Freeman's case, and he was not denied due process. 6petition] only if an I-130 has been approved").
-9- III. CONCLUSION

Accordingly, we deny Freeman's petition for review regarding his constitutional and legal arguments that the IJ and the BIA denied him due process. We dismiss the remainder of his petition for lack of subject matter jurisdiction.

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