NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-1438

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JOSE ORLANDO TITO VERDI,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A205-753-310)

Immigration Judge: Honorable Leo Finston

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 1, 2014

Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges

(Opinion filed: July 2, 2014)

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OPINION

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PER CURIAM

Jose Orlando Tito Verdi petitions for review of a final order of removal. For the 

following reasons, we will deny the petition.

Verdi, a native and citizen of Peru, entered the United States in 2006 and 

overstayed his visa. The Government started removal proceedings on that basis in 2013. 
2

See 8 U.S.C. § 1227(a)(1)(B). Verdi chose to represent himself in the proceedings after 

being advised by the Immigration Judge (IJ) of his rights and receiving a list of legal 

service providers.1 Administrative Record (“A.R.”) at 64-65. Verdi conceded that he 

was removable as charged and did not apply for any relief. In addition, Verdi did not 

identify any potential grounds for relief after being questioned by the IJ. He testified 

that: (1) he had not been mistreated in Peru and did not fear returning there; (2) he is not 

married and has no children; (3) no petition had ever been filed on his behalf; and (4) his 

parents have no legal status in the United States. Id. at 67-68. After Verdi testified that 

he had been assaulted by thieves and the police in the United States, the IJ asked if he had 

cooperated in any investigation or prosecution, and Verdi testified that he had not. Id. at 

68-69. At that point, the IJ noted that Verdi appeared to be eligible only for voluntary 

departure, but Verdi declined because he could not accomplish the necessary steps. Id. at 

69, 72-73. Ultimately, the IJ found Verdi removable based on his factual admissions and 

concession of removability. The IJ ordered Verdi’s removal, concluding that he was not 

eligible for any form of relief, including a U visa.

On appeal to the Board of Immigration Appeals (“BIA”), Verdi asked for his 

removal to be cancelled and his case remanded to a state court because he believed that 

his immigration proceedings had been “rushed” due to state police officers fearing that he 

 

1

The proceedings were continued for Verdi to obtain counsel, but he never did.
3

would file a lawsuit against them. The BIA concluded that the allegation was not 

germane to removability or relief therefrom and affirmed the IJ’s decision because Verdi 

had not satisfied his burden to establish eligibility for relief. The present petition for 

review followed.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Where, as here, the BIA 

issues its own decision on the merits, we review that decision and consider the IJ’s ruling 

“only insofar as the BIA deferred to it.” Roye v. Att’y Gen., 693 F.3d 333, 339 (3d Cir. 

2012). We review the agency’s factual findings for substantial evidence. Dia v. 

Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003). This is a deferential standard, and the 

“BIA’s determination will not be disturbed unless any reasonable adjudicator would be 

compelled to conclude to the contrary.” Yu v. Att’y Gen., 513 F.3d 346, 348 (3d Cir. 

2008) (internal quotation marks omitted).

Verdi was charged with being removable under 8 U.S.C. § 1227(a)(1)(B) for 

staying in the United States longer than permitted by his visa. During the immigration 

proceedings, Verdi admitted that he: (1) is a native and citizen of Peru; (2) was admitted 

to the United States as a temporary visitor in 2006 with authorization to remain until May 

4, 2007; and (3) remained in the United States after that date without authorization. He 

also conceded that he was removable as charged. Verdi has not challenged this 

determination. We conclude that substantial evidence supports the determination that 

Verdi is removable pursuant to 8 U.S.C. § 1227(a)(1)(B) .
4

As for relief from removal, the burden of proof to establish eligibility for it rests 

upon the alien. See 8 U.S.C. § 1229a(c)(4). In this case, Verdi did not apply for relief. 

Nor did he establish any potential basis for it through his testimony, despite the IJ’s 

inquiries on the subject. Accordingly, we conclude that substantial evidence supports the 

determination that Verdi did not establish eligibility for relief from removal.

On appeal, Verdi raises a due process challenge to aspects of the immigration 

proceedings. He contends that his rights were violated when: (1) immigration 

proceedings were initiated before “his criminal case was resolved;” (2) the IJ failed to 

find out why he could not meet the conditions for voluntary departure; and (3) the IJ 

failed to advise him of his right to a U visa.2 To the extent that Verdi argues that he was 

deprived of a fundamentally fair hearing, we conclude that the claim fails because he has 

not demonstrated that he was substantially prejudiced. See, e.g., Khan v. Att’y Gen., 448 

F.3d 226, 236 (3d Cir. 2006) (“‘[d]ue process challenges to deportation proceedings 

require an initial showing of substantial prejudice’”) (quoting Anwar v. INS, 116 F.3d 

140, 144 (5th Cir. 1997)).

Regarding the first claim, Verdi states that the “outcome of his criminal case will 

impact his eligibility for relief in his immigration proceedings,” apparently asserting a 

 

2 Verdi did not raise these claims before the BIA and they are thus not exhausted. 

However, due process claims are generally exempt from the exhaustion requirement, and 

we will review de novo the question of whether Verdi’s rights were violated. See Mudric 

v. Att’y Gen., 469 F.3d 94, 98 (3d Cir. 2006).
5

right to defer the immigration proceedings on that basis. Verdi does not explain his 

criminal case, its status, or how it could possibly affect his eligibility for relief. 

Furthermore, we note that Verdi was found removable for overstaying his visa, not for a 

criminal conviction. There is no apparent connection between those proceedings and the 

immigration proceedings. He thus fails to establish any prejudice flowing from the 

timing of his immigration proceedings.

As for Verdi’s claim that the IJ violated his rights by failing to ascertain why he 

could not meet the conditions for voluntary departure, he cites no authority for the 

proposition that the IJ had a duty to undertake such an inquiry. That is not surprising, 

given that the burden is on the alien to establish eligibility for relief, as noted earlier 

Furthermore, Verdi declined to apply for voluntary departure and has never claimed that 

he could meet the eligibility criteria. On the contrary, his argument is premised on his 

inability to meet the criteria, which completely undermines any ability to show prejudice

from the alleged violation of his rights.

Finally, Verdi claims that the IJ did not advise him of his right to a U visa. Verdi 

had no “right” to such a visa, and indeed, did not establish eligibility. Eligibility for a U 

visa is generally predicated on assisting law enforcement with the investigation or 

prosecution of a crime. See 8 C.F.R. § 214.14(b). Verdi testified that he had not 

provided such assistance when questioned by the IJ. As he was not eligible for a U visa, 
6

there was no reason for the IJ to advise him about it and no prejudice from the failure to 

do so.3

For these reasons, we will deny the petition for review.

 

3

The authority cited by Verdi in support of this claim, 8 C.F.R. § 1240.11 and decisions 

from the Ninth Circuit, do not affect this analysis. The decisions are not binding on this 

Court, and neither they nor the regulation concern U visas or situations where there was 

no potential eligibility for such relief.