Jiri Vyloha v. William P. Barr ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-2290 & 18-3298
JIRI VYLOHA,
Petitioner,
v.
WILLIAM P. BARR,
Attorney General of the United States,
Respondent.
____________________
Petitions for Review of Orders of the
Board of Immigration Appeals.
No. A099-025-839
____________________
ARGUED APRIL 4, 2019 — DECIDED JULY 10, 2019
____________________
Before RIPPLE, HAMILTON, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Jiri Vyloha, a citizen of the Czech
Republic, brings two petitions for judicial review in this con-
solidated appeal. About ten years after an Immigration
Judge (IJ) ordered Vyloha removed in absentia in 2007, Vylo-
ha moved to rescind the order and reopen his case. See 8
U.S.C. § 1229a(b)(5)(C). An IJ denied that motion and the
subsequent motion to reconsider, and we conclude that the
2 Nos. 18-2290 & 18-3298
Board of Immigration Appeals did not abuse its discretion in
affirming the IJ. We thus deny Vyloha’s first petition for re-
view.
Vyloha also seeks judicial review of the Board’s decision
rejecting his subject-matter jurisdiction argument based on
the Supreme Court’s June 2018 decision in Pereira v. Sessions,
138 S. Ct. 2105 (2018). Because Vyloha’s argument is fore-
closed by our recent decision in Ortiz-Santiago v. Barr, 924
F.3d 956 (7th Cir. 2019), we also deny his second petition for
review.1
I
Vyloha entered the United States in 1998 as a non-
immigrant visitor and overstayed his visa. The United States
Department of Homeland Security (DHS) was alerted to
Vyloha’s presence in the United States in June 2006 after he
was convicted of driving under the influence in Illinois. In
August 2006, DHS served Vyloha in person with a Notice to
Appear (Notice), which indicated that he would be ordered
to appear before an IJ in Chicago on a date and time to be set
in the future. The Notice charged Vyloha with removability
because he overstayed his non-immigrant visa. See 8 U.S.C.
§ 1227(a)(1)(B).
Two days later, a notice of hearing was mailed to Vylo-
ha’s attorney setting the hearing date for August 21, 2006.
Several other hearing notices followed. On October 13, 2006,
Vyloha appeared before the IJ in person for his scheduled
1 Vyloha does not seek judicial review of the Board’s sua sponte deci-
sions, most likely because sua sponte decisions are unreviewable unless
the Board makes a constitutional or legal error. Fuller v. Whitaker, 914
F.3d 514, 519 (7th Cir. 2019).
Nos. 18-2290 & 18-3298 3
removal hearing and presented a letter from his counsel ex-
plaining that he was out of the country and requesting that
the IJ reschedule the matter to November 2006. At the Octo-
ber 2006 hearing, Vyloha indicated that he preferred to pro-
ceed in English. After confirming that Vyloha was comforta-
ble proceeding in English, the IJ conducted the hearing and
personally served Vyloha with notice that his rescheduled
removal hearing was set for May 2007. In addition, the IJ
orally informed Vyloha of the hearing’s time and warned
him about the consequences of failing to appear. Vyloha
nonetheless did not appear at the May 2007 removal hearing.
Consequently, the IJ found him removable as charged and
ordered him removed in absentia.
Shortly after his May 2007 hearing, police arrested Vylo-
ha for driving with a suspended driver’s license. While serv-
ing a 31-day sentence for that offense, Vyloha learned that
there was an Immigration and Customs Enforcement (ICE)
detainer on him. Vyloha asserts that because ICE did not
take him into custody at the conclusion of his sentence, he
assumed his attorney had resolved his immigration prob-
lems.
Approximately ten years later, in September 2017, ICE
apprehended and detained Vyloha. He then filed a motion
to reopen his immigration proceedings and to rescind the in
absentia order pursuant to 8 U.S.C. § 1229a(b)(5)(C). Vyloha
claimed he had no notice of the May 2007 hearing due to his
limited English proficiency. He further asserted there was an
exceptional circumstance to reopen his case based on his
counsel’s ineffectiveness in failing to tell him about his hear-
ing date. In the alternative, Vyloha asked the IJ to exercise its
sua sponte authority to reopen his immigration proceedings
4 Nos. 18-2290 & 18-3298
based on his lack of notice and counsel’s ineffectiveness.
In November 2017, the IJ denied Vyloha’s motion to reo-
pen reasoning that Vyloha had notice of his removal hear-
ing. The IJ noted that the first IJ had personally served Vylo-
ha with notice of his May 2007 hearing, and, under Seventh
Circuit law, personal service in English to a non-English
speaker typically satisfies due process because the alien is on
notice that further inquiry is needed. The IJ also concluded
that Vyloha did not establish that counsel’s performance
prejudiced him because he directly received notice of his
removal hearing both orally and in writing. Finally, the IJ
concluded that the motion to reopen and rescind was un-
timely, and that Vyloha had not established equitable tolling
because of his lack of due diligence.
Vyloha filed a motion to reconsider arguing that the IJ
did not consider his request to reopen his proceedings sua
sponte so that he could apply for the adjustment of his status.
In December 2017, the IJ denied the motion and noted that
sua sponte authority is an extraordinary remedy reserved for
exceptional circumstances. Vyloha did not meet this stand-
ard, according to the IJ, especially because he had waited ten
years before seeking to reopen.
Vyloha appealed the IJ’s denial of his motion to reconsid-
er. In May 2018, the Board affirmed and dismissed the ap-
peal. The Board concluded that Vyloha’s lack of notice ar-
gument failed because he was personally served with writ-
ten and oral notice of his May 2007 hearing, which sufficed
despite any English language deficiencies. Further, the
Board noted that Vyloha’s motion to reopen was untimely
and that Vyloha had failed to establish that equitable tolling
applied given his lack of due diligence in seeking relief. Last,
Nos. 18-2290 & 18-3298 5
the Board affirmed the IJ’s ruling that Vyloha did not estab-
lish exceptional circumstances to warrant sua sponte reopen-
ing.
Vyloha then filed a timely petition seeking judicial re-
view of the Board’s May 2018 decision. While his first peti-
tion was pending, Vyloha filed a motion to reconsider direct-
ly with the Board based on the Supreme Court’s June 2018
decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018). In that
motion, Vyloha argued that because his initial Notice lacked
the specific date and time of his removal hearing, the immi-
gration courts did not have subject-matter jurisdiction over
his proceedings. The Board denied Vyloha’s motion to re-
consider in October 2018, after which Vyloha filed a timely
petition for review. This consolidated appeal of the two peti-
tions followed.
II
We first turn to the Board’s May 2018 decision affirming
the IJ’s denial of Vyloha’s motion to reconsider, which we
review for an abuse of discretion. Sembhi v. Sessions, 897 F.3d
886, 891 (7th Cir. 2018); Yusev v. Sessions, 851 F.3d 763, 766
(7th Cir. 2017). The Board has abused its discretion when its
decision “was made without a rational explanation, inexpli-
cably departed from established policies, or rested on an im-
permissible basis, such as invidious discrimination against a
race or particular group.” Singh v. Sessions, 898 F.3d 720, 724
(7th Cir. 2018) (internal quotation marks omitted).
When the Board adopts and then supplements an IJ’s de-
cision—as happened here—we review both decisions. Herre-
ra-Garcia v. Barr, 918 F.3d 558, 561 (7th Cir. 2019); Plaza-
Ramirez v. Sessions, 908 F.3d 282, 285 (7th Cir. 2018). Here, the
6 Nos. 18-2290 & 18-3298
Board reviewed the IJ’s December 2017 denial of Vyloha’s
motion to reconsider. To succeed on a motion to reconsider,
Vyloha was required to show that the IJ’s earlier decision
contained a legal or factual error. See Sembhi, 897 F.3d at 892.
As background, under 8 U.S.C. § 1229a(b)(5)(C)(i), an al-
ien seeking to have his in absentia removal order rescinded
generally must file a motion to reopen within 180 days of the
removal order and demonstrate that his failure to appear
was due to exceptional circumstances. See Sembhi, 897 F.3d at
888-89. But a motion to reopen and rescind may be filed at
any time if the motion is based on a complete lack of notice.
United States v. Arita-Campos, 607 F.3d 487, 492 (7th Cir.
2010); 8 U.S.C. § 1229a(b)(5)(C)(ii).
In its May 2018 decision, the Board concluded that Vylo-
ha had not established any error of law or fact in the IJ’s de-
nial of his motion to reopen. In doing so, the Board ex-
plained, “[t]o the extent that the respondent argues that his
non-appearance at the removal hearing on [May 18, 2007]
was the result of ineffective assistance of counsel, his motion
to reopen was untimely,” and Vyloha “concedes on appeal,
he missed the filing deadline by approximately 10 years.”
The Board then reasoned Vyloha did not exercise due dili-
gence in seeking relief during that ten-year period for equi-
table tolling purposes.
Vyloha blames his untimely motion on his attorney’s al-
leged misconduct. Ineffective assistance of counsel can ex-
cuse a late filing, but as we have repeatedly held “[e]quitable
tolling based on counsel’s performance requires, at a mini-
mum, that the petitioner show that he exercised due dili-
gence in seeking relief and that he suffered prejudice as a
result of the lawyer’s deficient performance.” Yusev, 851 F.3d
Nos. 18-2290 & 18-3298 7
at 767; see also Patel v. Gonzales, 442 F.3d 1011, 1016 (7th Cir.
2006). At oral argument, however, Vyloha conceded that he
could not establish due diligence—an admission that is fatal
to his equitable tolling argument.
Next, Vyloha contends he never received notice of his
May 2007 hearing and subsequent in absentia removal order,
and therefore, he is not barred by the 180-day deadline for
motions to reopen and rescind. See Arita-Campos, 607 F.3d at
492 (“[I]f an alien can demonstrate that he was never notified
of the proceeding, a motion to reopen may be filed ‘at any
time.’”) (quoting 8 U.S.C. § 1229a(b)(5)(C)(ii)). On this issue,
the Board concluded that the IJ personally served Vyloha
with notice in October 2006. The Board further explained
that although Vyloha may not be fluent in English, “personal
service in English to a non-English-speaker typically satisfies
due process because it puts the alien on notice that further
inquiry is needed, leaving the alien to seek help from some-
one who can overcome the language barrier.” Singh v. Hold-
er, 749 F.3d 622, 626 (7th Cir. 2014).
On appeal, Vyloha contends that he did seek help to
overcome the language barrier by retaining the services of a
licensed attorney to guide him through the process—yet his
attorney failed him. Vyloha’s argument, however, ignores
the IJ’s factual finding that he was comfortable proceeding in
English at the October 2006 hearing, at which time the IJ
gave Vyloha both written and oral notice of his May 2007
removal hearing. Also, at that hearing, the IJ explained to
Vyloha the consequences of failing to appear at his removal
hearing.
Vyloha does not actually argue that we must reverse the
IJ’s factual finding regarding his English language skills—
8 Nos. 18-2290 & 18-3298
which we can only do if evidence in the record compels the
opposite conclusion. See Gonzalez Ruano v. Barr, 922 F.3d 346,
354 (7th Cir. 2019); Herrera-Garcia, 918 F.3d at 561. Rather, he
posits that he was afraid to admit to the IJ that he did not
understand English. Vyloha’s post hoc explanation does not
save the day. In the end, Vyloha’s argument that he never re-
ceived notice based on his poor English skills is belied by the
IJ’s factual finding, which substantial evidence supports. See
Herrera-Garcia, 918 F.3d at 561.
Accordingly, the Board did not abuse its discretion in af-
firming the IJ’s denial of Vyloha’s motion to reconsider. The
Board reasonably concluded that Vyloha did not establish
any error of law or fact.
III
We next examine Vyloha’s subject-matter jurisdiction ar-
gument for which he relies on the Supreme Court’s decision
in Pereira. Vyloha contends that the Board and the IJ lacked
subject-matter jurisdiction over his immigration proceedings
because his original Notice lacked the specific date and time
of his removal hearing under 8 U.S.C. § 1229(a)(1)(G)(i). We
recently addressed this exact argument concluding that the
statutorily-required information is not jurisdictional, but
concerns a claim-processing rule. Ortiz-Santiago, 924 F.3d at
958. We explained that failing to comply with
§ 1229(a)(1)(G)(i) “is not one of those fundamental flaws that
divests a tribunal of adjudicatory authority,” but instead
“failure to comply with that rule may be grounds for dismis-
sal of the case.” Id. at 963. We also instructed that “a party
wishing to object to a violation of a claim-processing rule
must make a timely objection.” Id. at 964.
Nos. 18-2290 & 18-3298 9
Vyloha took issue with his defective Notice only after the
Supreme Court decided Pereira and when he “saw the possi-
bility of wiping out his entire immigration proceeding.” Id.
As we explained in Ortiz-Santiago, although the Supreme
Court’s decision in Pereira represented a genuine change in
circumstances, the clear and unequivocal statutory text of
§ 1229(a)(1)(G)(i) supported a meritorious argument that
Vyloha could have raised before Pereira. See Ortiz-Santiago,
924 F.3d at 964. In other words, Vyloha could have argued
that his Notice was statutorily deficient well before the Perei-
ra decision. As such, Vyloha’s present challenge is untimely.
Our next inquiry is whether we should excuse Vyloha’s
forfeiture. See id. at 965 (“Relief will be available for those
who make timely objections, as well as those whose timing is
excusable and who can show prejudice.”). As explained
above, a personally served notice of hearing shortly followed
the original Notice in this matter. Vyloha then appeared for
his removal hearing on October 13, 2006, at which time the IJ
rescheduled his hearing for May 2007. In doing so, the IJ
confirmed that Vyloha wished to proceed in English and
then gave Vyloha both oral and written notice of his May
2007 removal hearing. The IJ further explained the conse-
quences of Vyloha’s failure to appear. Under these circum-
stances, Vyloha cannot show prejudice that would excuse his
forfeiture.
We need not address Yyloha’s cancellation of removal
arguments because they are premised on the immigration
courts’ lack of subject-matter jurisdiction.
For these reasons, Vyloha’s petitions for judicial review
are DENIED.