NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1



# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued February 14 , 20 12 Decided February 15, 2012



### Before

F RANK H. E ASTERBROOK

, Chief Judge

W ILLIAM J. B AUER
, Circuit Judge

E DMOND E. C HANG

, District Judge *

No. 11

- 2672

T HELMA L OWELLA Y OUNG

, Petitioner

,

v

.

E RIC H. H OLDER

, J R
., Attorney General of the United States

, Respondent

. Petition for Review of an O rder of the Board of Immigr ation Appeals

.

Order

Thelma Lowella Young, a citizen of Belize, entered the United States in 2000 and did not depart when her visa expired. In 2005 she applied for adjustment of status as an immediate relative of a daughter, who is a citizen of this nation by virtue of birth h ere.

Part of Immigration and Nationality Act, 8 U.S.C. §1182(a)(6)(C)(i)

, provides that a liens who have committed immigration

- related fraud are not eligible for adjustment of

status. Immigration officials charged Young with fraud

— specifically, attempting to e nter the United States in 1974 under a fa lse claim of U.S. citizenship. (Two provision s added t o the Act in 1996, § § 1182(a)(6)(C)(ii) and 1227(a)(3)(D), deal directly with false

* Of the Northern District of Illinois, sitting by designation.No. 11

- 2672 Page 2

claims of citizenship but are not retroac tive

. ) In September 2005 the Dep artment of Homeland Security denied Young’s application for adjustment of status, citing the events of 1974. In March 2007 the Department formally began the process of removing Young from the United States. It proposed to remove her under 8 U.S.C. §1227(a)(1)(B), because she overstayed her visa and lacks any current grant of permission to be in the

United States. She defended by denying that she had committed fraud and contending that she is entitled to adju stment of status.

A hearing before an immigration judge took place in June 2009; the principal ev idence offered by the agency was three documents dating to 1974 that, the agency co ntends, show the false claim of citizenship and thus a fraud

. (The precise nature of the proof is not important, and we omit it to simplify this order.) Young had been in po ssession of these documents since 2007 (if not 2005). Young then put on her case; she was the only witness, and she did not present anyone else’s testimony by deposition or aff idavit. In rebuttal the agency proffered four additional documents that it contended e stablished t hat Young’s testimony was false and that fraud had indeed occurred in 1974. At this point Young’s lawyer asked the IJ to halt the hearing so that Young could pr epare additional evidence to meet these additional documents. The IJ denied this motion,

found by clear and convincing evidence that Young had committed fraud in 1974, and ordered her removed from the United States. The Board of Immigra tion Appeals di smissed her appeal , expressly disclaiming any reliance on the 1996 amendments

.

Young contends in this court that the agency violated the due process clause of the fifth amendment by denying her the opportunity to meet the evidence offered i n rebu ttal. There are several problems with this line of argument. One is that an alien does not have a liberty or property interest in adjustment of status, so the due process clause does not apply. See Portillo

- Rendon v. Holder , 662 F.3d 815 (7th Cir. 20 11) ; Hamdan v.

Gonzales , 425 F.3d 1051, 1061 (7th Cir. 2005) . Another is that Young has never told us (or for that matter the Board) what additional evidence could have been supplied with add itional time. Young’s lawyer did not make an offer of proof at th e he aring or request

time to do so; counsel did not file with the Board an affidavit explaining what additio nal evidence might have been marshaled; and even now, more than 30 months after the hearing, Young’s lawyer has not explained what evidence could ha ve been gathered and presented with a little more time. A third problem is that Young supposes that the due process clause requires pretrial (or pre

- hearing) disclosures. Yet the Constitution

does not create an entitlement to disc overy

. See Weatherford v. Bursey , 429 U.S. 545 , 559 (1977). Eve n in criminal prosecutions, the constitutional disclosure obligation is limited

to evidence favorable to the accused , see Brady v. Maryland , 373 U.S. 83 (1963)

— and for impeaching evidence this is a right to disclosure a t trial, not a right to discovery before

trial. See United States v. Ruiz , 536 U.S. 622 , 629

– 33 (2002)

. The evidence here is inculp atory , was used to impeach Young, and was never requested in discovery.

Portillo

- Rendon is among many cases in this circuit deprecating ambulatory invoc ations of due process when statutes or regulations create more concrete entitlements.No. 11

- 2672 Page 3

Young’s reply brief asserts that the agency violated 8 U.S.C. §1229a and procedural re gulations. But when asked at oral argument which specific requirement the agency had dishonored, counsel did not have a candidate to suggest. As far as we can see, the age ncy followed all of the procedural rules created by §1229a and its own regulations. Young knew more than three years before the hearing the nature of the agency’s charge, giving her plenty of time to gather and present contrary evidence. Substantial evidence supports the agency’s decision.

The petition for review is denied.