Arevalo v. Barr ( 2020 )

United States Court of Appeals
For the First Circuit
Nos. 18-1834
19-1250
SELVIN OVIDIO AREVALO,
Petitioner,
v.
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITIONS FOR REVIEW OF ORDERS OF
THE BOARD OF IMMIGRATION APPEALS
Before
Kayatta, Selya, and Stahl,
Circuit Judges.
David C. Bennion, with whom Free Migration Project was on
brief, for petitioner.
Lindsay Corliss, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
with whom Joseph H. Hunt, Assistant Attorney General, John S.
Hogan, Assistant Director, Office of Immigration Litigation,
Daniel E. Goldman, Senior Litigation Counsel, Office of
Immigration Litigation, and Andrea N. Gevas, Trial Attorney,
Office of Immigration Litigation, were on brief, for respondent.
February 14, 2020
SELYA, Circuit Judge. In its present posture, this case
turns largely on the meaning of the word "recalendar," as that
word is used in the immigration context. Here, the parties
supplied no particularized meaning for the word when they used it
in the pertinent pleadings. Because the word is not specifically
defined either in any applicable statutory provision or in any
relevant regulation, we give "recalendar" its plain and natural
meaning. The Board of Immigration Appeals (BIA) interpreted the
word correctly and applied it faithfully. Accordingly, we uphold
the challenged orders and deny the two petitions for judicial
review.
The petitioner, Selvin Ovidio Arevalo, is a Guatemalan
national. He entered the United States in 2000 at age fourteen
without documentation. The government initiated removal
proceedings against the petitioner in 2010, charging him with
removability under 8 U.S.C. § 1182(a)(6)(A)(i), (a)(7)(A)(i)(I).
The petitioner conceded removability but cross-applied
for asylum and withholding of removal, claiming persecution on
account of both political opinion and membership in a particular
social group. See 8 U.S.C. §§ 1158(b)(1), 1231(b)(3)(A). At the
same time, he sought protection under the United Nations Convention
Against Torture (CAT). All of his claims were based on his
concerns about violent gang recruitment of young, apparently
wealthy adults in Guatemala.
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After a hearing, an immigration judge (IJ) denied the
petitioner's claim for asylum as untimely, see id. § 1158(a)(2)(B),
noting that, had the claim been timely filed, she would have denied
it on the merits. And although the IJ credited the petitioner's
testimony, she concluded that the petitioner's generalized fear of
dangerous and violent conditions did "not give rise to a basis for
a claim for . . . withholding of removal." Finally, the IJ found
no evidence that the petitioner would be subject to torture "by or
at the instigation of or with the consent or acquiescence of a
public official," 8 C.F.R. § 1208.18(a)(1), should he be
repatriated. Accordingly, she denied the petitioner's CAT claim.
The petitioner appealed to the BIA. On November 18,
2010, the BIA upheld the IJ's decision, finding that the petitioner
was not entitled to asylum, withholding of removal, or CAT
protection. The petitioner filed a timely petition for judicial
review.
After the petition for review was docketed and fully
briefed, we entered an order, with the parties' consent, remanding
the case to the BIA. Our remand order was premised on the
government's representation that it intended to exercise
prosecutorial discretion with respect to the petitioner, at least
temporarily, by administratively closing the case. When
remanding, though, we retained jurisdiction over the petition for
review.
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Once the case had been remitted to the BIA, the
government filed an unopposed motion to close the proceedings
administratively. The government's motion explained that if
"either party" desired for any reason "to place this matter back
on the active calendar or docket, that party w[ould] file a motion
to recalendar with this Board." The BIA granted the unopposed
motion and administratively closed the case in April of 2013.
Shortly thereafter, the parties filed a stipulation of
dismissal in this court. Although the order closing the case did
not expressly address the status of the November 18 decision, the
parties filed a stipulation making pellucid that the
administrative closure removed the entry of that decision from the
docket. In the parties' words: "there is no longer a final order
of removal." This construction provided two benefits to the
petitioner: it clarified that he was not subject to a live order
of removal; and it effectively preserved his ability to reactivate
his petition for review of the November 18 decision should the
administrative closure be revoked.
Consistent with the parties' agreement, we dismissed the
pending petition for judicial review and entered a judgment of
voluntary dismissal. Thereafter, the case laid dormant for
approximately five years. But after the 2016 presidential election
and the ensuing change in administration, the government rethought
its earlier decision to exercise prosecutorial discretion
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favorably to the petitioner and moved before the BIA to "reinstate"
the case. The petitioner offered no objection, and the BIA granted
the motion: it decreed that its "original decision of November
18, 2010, now takes effect."
Displeased with the BIA's reinstatement of its earlier
decision, the petitioner filed a new petition for judicial review
on August 29, 2018. The same day, the petitioner asked the BIA to
reconsider its order reinstating its earlier decision. Eschewing
the merits of his claims for asylum, withholding of removal, and
CAT protection, the petitioner's motion to reconsider focused
exclusively on the BIA's order reinstating its earlier decision.
On February 7, 2019, the BIA issued a written rescript denying the
petitioner's motion to reconsider. The petitioner responded by
filing yet another petition for judicial review. Once briefs were
filed, we scheduled both petitions for oral argument on January 7,
2020; heard argument on both petitions as a unit; and took the
matter under advisement.
The petitions for review, taken collectively, raise a
common issue: whether the BIA acted appropriately in placing the
case back on its docket and proceeding from where it left off
before the case was administratively closed. This issue turns on
the meaning of "recalendar," as that word was used by the parties
in the government's unopposed motion, which led to the
administrative closure.
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"Administrative closure is a procedural convenience that
may be granted if both parties to the removal proceedings agree,
but it does not constitute a final order." Lopez-Reyes v.
Gonzales, 496 F.3d 20, 21 (1st Cir. 2007). Instead, administrative
closure "temporarily removes a case from . . . the Board's docket."
Id. Such a temporary displacement of a case from the BIA's active
docket effectively pauses the case. Following an administrative
closure, either party may seek to undo the pause — as the
government did here — by filing a motion to reinstate.
In this instance, the government's motion to reinstate
was unopposed. When the BIA granted the unopposed motion, it
recalendared the case, that is, it put the petitioner right back
where he was before the parties agreed to the closure: subject to
an operative order of removal, yet still able to secure appellate
review. The petitioner takes umbrage: he points out that several
years had passed since the case was administratively closed and
argues that the BIA, either directly or by recourse to the IJ, had
an obligation to explore interim developments before reinstating
its earlier decision. We do not agree.
The propriety of the BIA's action hinges on the meaning
of the word "recalendar" — the key word in the government's
unopposed motion for administrative closure. The parties concede
that no applicable statute or regulation supplies a definition of
the word "recalendar" as used in this context. We therefore
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interpret the word according to its plain and natural meaning.
Cf. Correia v. Fitzgerald, 354 F.3d 47, 55 (1st Cir. 2003)
(explaining that "[c]ourts should construe stipulations in
accordance with accepted principles of general contract law");
Smart v. Gillette Co. Long-Term Disab. Plan, 70 F.3d 173, 178 (1st
Cir. 1995) (stating that canon of contract interpretation "teaches
that contracts containing unambiguous language must be construed
according to their plain and natural meaning").
We conclude that "recalendar" means simply to reinstate
the case to the active docket in the same posture as it occupied
when it was paused for administrative closure. The dictionary
defines the prefix "re-" as "again" and notes that it is to be
"joined" to a "second element." Webster's Third New International
Dictionary of the English Language Unabridged 1888 (Philip Babcock
Gove ed., 2002). Here, the second element is the verb "calendar,"
which means "to enter (as a name or event) in a calendar or list."
Id. at 316. Thus — in the present context — "recalendar" means to
enter on the calendar again. That is exactly what the BIA did.
Its 2018 order, like the government's motion, used the word
"reinstate," and the accepted meaning of reinstate is "to . . .
place again (as in . . . a former position)" or "to replace in an
original or equivalent state." Id. at 1915. In other words, the
BIA recalendared the petitioner's case by reinstating it, that is,
by placing it back on the active docket in essentially the same
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posture that it occupied immediately before the administrative
closure occurred. It again became a fully briefed administrative
appeal from the IJ's order of removal, awaiting only the entry of
a final decision by the BIA.
In an effort to draw the sting from this reasoning, the
petitioner argues that the five-year hiatus between the
administrative closure and the case's reinstatement resulted in a
final resolution based on an "old and stale record." He argues
that due process required a new hearing to explore the effects of
the passage of time on his claims for relief. This argument is
woven out of whole cloth, devoid of any citation to relevant
authority.
We add, moreover, that — as the petitioner's counsel
acknowledged at oral argument — the petitioner could have asked
the BIA either to reopen the case, see 8 C.F.R. § 1003.2(a), or to
vacate the judgment and remand to the immigration court, see Falae
v. Gonzáles, 411 F.3d 11, 14 (1st Cir. 2005) (noting that relevant
statutes and regulations do not "recognize motions to remand as
such," but motions to remand may be treated as motions to reopen).1
He did neither — and he cannot ask this court for relief that he
did not seek before the agency. See García v. Lynch, 821 F.3d
1 Each of these motions offered the petitioner essentially
the same potential remedy. See Falae, 411 F.3d at 14 (treating
motion to remand as motion to reopen and reviewing for abuse of
discretion).
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178, 181-82 (1st Cir. 2016) (explaining that failure to raise
argument before BIA precludes judicial review); cf. Meng Hua Wan
v. Holder, 776 F.3d 52, 58 (1st Cir. 2015) ("Courts and agencies,
like the Deity, tend to help those who help themselves.").
To be sure, the petitioner did file a motion to
reconsider before the BIA. The filing of this motion, though, did
not gain him any traction. Rather than asserting some substantive
reason for reopening his case, his motion to reconsider merely
asserted that the BIA had erred in its conception of what
"recalendaring" meant and asked the BIA to reverse its earlier
order. Put another way, the motion to reconsider was limited to
the issue already addressed above: did the BIA act appropriately
in recalendaring the case and giving effect to its earlier 2010
decision? As we already have explained, the petitioner cannot
prevail on this issue.
Struggling to salvage his due process argument, the
petitioner suggests that he was denied due process because he "was
not properly notified" of the government's motion to reinstate.
This argument draws its essence from a curious sequence of events.
In 2013 — while the case was administratively closed — the
petitioner's counsel attempted to apprise the BIA of a change in
his office address (he apparently had moved up the street). The
BIA rejected this submission because the case was closed. Thus,
when the government filed its motion to reinstate in 2018, it
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served a copy to counsel's old address. This is the disparity on
which the petitioner bases his lack-of-notice claim.
When put in perspective, this claim lacks force. Shortly
after the motion to reinstate was filed and before the BIA acted
on it, the petitioner's counsel again entered his appearance (with
his updated address). The BIA then mailed a copy of the motion to
reinstate to counsel at the updated address. Counsel abjured any
responsive filing, and the BIA granted the government's unopposed
motion and reinstated its earlier 2010 decision over a month later.
Although it is apparent that the petitioner's counsel
had actual notice of the motion to reinstate and ample time to
reply to it, he nonetheless asserts that he could not have filed
such a reply because he received notice only after the thirteen-
day window for responding to motions, see 8 C.F.R § 1003.2(g)(3),
had shut. The BIA gave short shrift to this assertion when the
petitioner included it in his motion to reconsider. So do we.
We need not tarry. For one thing, the petitioner never
asked the BIA for an extension of the thirteen-day limit, and we
have no reason to think that such an extension would have been
denied. See id. (memorializing BIA's discretionary authority to
extend filing dates). And for another thing, the petitioner has
not advanced any arguments that he might successfully have raised
in an opposition to the government's motion. There was no
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prejudice and, in the absence of prejudice, the petitioner's claim
founders. See Lattab v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004).
In sum, the petitioner received all of the process that
was due. See Jones v. Flowers, 547 U.S. 220, 226 (2006) ("[D]ue
process requires the government to provide 'notice reasonably
calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an
opportunity to present their objections.'" (quoting Mullane v.
Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950))). Stripped
of his due process claim, the petitioner's case becomes unglued.
His briefing in this court fails to develop any claim of error
addressed to the underlying merits decision. In short, the
petitioner offers us no developed argumentation in support of a
contention that the IJ and the BIA erred in rejecting his claims
for asylum, withholding of removal, and/or CAT protection. Thus,
he has waived any argument regarding the merits of his underlying
claims. See Ahmed v. Holder, 765 F.3d 96, 101 n.2 (1st Cir. 2014);
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). And
although his briefs mention the possibility that he might "renew[]
. . . his asylum claim" or "reappl[y]" for other relief, he has
failed to develop these possibilities. See Zannino, 895 F.2d at
17 ("[I]ssues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived.").
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The petitioner has a fallback position. He suggests
that his previous immigration proceedings are a nullity because
the IJ (and, thus, the BIA) lacked jurisdiction over his case.
This suggestion rests on the notion that the Notice to Appear (NTA)
that initiated his removal proceedings did not include the time
and place of his initial hearing before the immigration court. In
support, he says that the inclusion of such data was required both
by statute, see 8 U.S.C. § 1229(a)(1)(G)(i), and by the Supreme
Court's decision in Pereira v. Sessions, 138 S. Ct. 2105, 2109-10
(2018). This suggestion is foreclosed by the case law and, thus,
is a dead letter.
In the wake of Pereira, we have squarely rejected the
jurisdictional thesis that the petitioner advances. See Goncalves
Pontes v. Barr, 938 F.3d 1, 7 (1st Cir. 2019). Our decision in
Goncalves Pontes explicates that, in circumstances such as those
that are at issue here, immigration court jurisdiction is governed
by regulation, see 8 C.F.R. §§ 1003.13-1003.14(a), not by the
statute on which the petitioner relies. See Goncalves Pontes, 938
F.3d at 3-5. These regulations do not mandate that the time or
place of the initial hearing be included in an NTA that commences
a removal proceeding. See id. at 4 (citing 8 C.F.R. § 1003.18(b)).
In this case, the petitioner's NTA complied with the
regulations, and he appeared before the immigration court as
ordered. Under the rule in Goncalves Pontes, "[i]t follows that
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because the petitioner's NTA complied with the regulations
. . . , it was effective to confer jurisdiction upon the
immigration court." Id. at 7.
Goncalves Pontes controls our decision here. After all,
the law of the circuit doctrine requires us to adhere to prior
panel decisions, closely on point, with but few exceptions. See,
e.g., United States v. Gonzalez, ___ F.3d ___, ___ (1st Cir. 2020)
[No. 18-1597, slip op. at 20]; United States v. Barbosa, 896 F.3d
60, 74 (1st Cir.), cert. denied, 139 S. Ct. 579 (2018). The
exceptions to this doctrine are both "narrowly circumscribed" and
"hen's-teeth-rare." Barbosa, 896 F.3d at 74 (quoting San Juan
Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010)). No
such exception has any bearing in the circumstances at hand. It
follows inexorably that the petitioner's jurisdictional attack
fails.
We need go no further. For the reasons elucidated above,
the petitions for judicial review are
Denied.
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