Ahmed, Usman v. Gonzales, Alberto ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1126
USMAN AHMED,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A76-782-469
____________
ARGUED SEPTEMBER 8, 2005—DECIDED DECEMBER 21, 2005
____________
Before FLAUM, Chief Judge, and EASTERBROOK, and
ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Usman Ahmed was born on May
23, 1992, fourteen weeks before his due date and now,
at age thirteen, still suffers from profound disabilities
including severe mental impairments and cerebral palsy.
On March 25, 1996, the Immigration and Naturalization
Service (now the Department of Homeland Security)1
admitted Ahmed and his father, Shakeel Ahmed, as non-
1
For simplicity, we will refer to both the Immigration and
Naturalization Service and the Department of Homeland Security
as the Department.
2 No. 05-1126
immigrant visitors to the United States to receive medical
treatment. Both Ahmed and his father remained in the
United States past the February 2, 2001 date authorized by
the Department. On April 11, 2002, the Department issued
a notice to appear charging Ahmed, but not his father, with
removability.
At an initial hearing the immigration judge informed
Ahmed’s father that, in light of Ahmed’s severe disability,
the father could appear at the subsequent hearing on his
son’s behalf. The immigration judge set the date for the
merits hearing for July 30, 2003. Neither Ahmed nor his
father appeared on July 30, or at any time thereafter. At
the July 30 merits hearing, counsel claimed that the
Ahmeds had left the country and asked the court to termi-
nate the proceedings in light of this fact. The immigration
judge obliged. The Board of Immigration Appeals reversed
the decision and ordered Ahmed removed in absentia,
holding that the “Immigration Judge was statutorily
required to order the respondent removed in absentia.” (R.
at 3).
Ahmed claims that the BIA erred when it found that the
immigration judge was required to order removal in
absentia. According to Ahmed, the immigration judge
had the discretion to determine whether to terminate
proceedings or to order removal. The Department disagrees
and asks us to uphold the order of the BIA ordering Ahmed
removed in absentia.
The dispute focuses on the interpretation of two relevant
provisions of the Immigration and Nationality Act that
address the consequences of an alien’s failure to appear.
The immigration court rules of procedure state as follows:
§ 1003.26 In absentia hearings.
* * *
No. 05-1126 3
(c) In any removal proceeding before an Immigra-
tion Judge in which the alien fails to appear, the
Immigration Judge shall order the alien removed in
absentia if:
(1) The Service establishes by clear, unequivo-
cal, and convincing evidence that the alien is
removable; and
(2) The Service establishes by clear, unequivo-
cal, and convincing evidence that written notice
of the time and place of proceedings and written
notice of the consequences of failure to appear
were provided to the alien or the alien’s counsel
of record.
8 C.F.R. § 1003.26.
The Immigration and Nationality Act’s discussion of
removal proceedings states:
(5) Consequences of failure to appear
(A) In general
Any alien who, after written notice required under
paragraph (1) or (2) of section 1229(a) of this title has
been provided to the alien or the alien’s counsel of
record, does not attend a proceeding under this section,
shall be ordered removed in absentia if the Service
establishes by clear, unequivocal, and convincing
evidence that the written notice was so provided and
that the alien is removable (as defined in subsection
(e)(2) of this section). The written notice by the Attorney
General shall be considered sufficient for purposes of
this subparagraph if provided at the most recent
address provided under section 1229(a)(1)(F) of this
title.
8 U.S.C. § 1229a(b)(5).
4 No. 05-1126
We review the BIA’s legal interpretation of the stat-
ute—that is whether it requires or allows the immigration
judge to order removal—de novo, giving effect to the
legislative intent where clear, or deferring to the Depart-
ment’s interpretation, where intent is not clear. Knutsen v.
Gonzales, 429 F.3d 733, 736 (7th Cir. 2005) (citing Chevron
U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-
43 (1984)); Perez-Rodriguez v. INS, 3 F.3d 1074, 1077 (7th
Cir. 1993) (same). The plain language of the statute is clear:
once an immigration judge has determined that an alien (1)
is removable and (2) has been provided with adequate
notice, that judge “shall” issue a removal order. 8 U.S.C.
§ 1229a(b)(5)(A); 8 C.F.R. 1003.26(c). The regulation simply
does not allow an immigration judge discretion to terminate
removal proceedings because an alien has left the country.
Ahmed does not argue that the government failed to
provide adequate notice, nor does he deny removability.
He argues instead that the immigration judge had the
authority to terminate the removal proceedings because
he left the country. On this point he is mistaken. Immigra-
tion rules give enforcement officials, not immigration judges
or the BIA the discretion to terminate removal proceedings.
See 8 C.F.R. § 1239.2; 8 C.F.R. § 239.2. As the BIA has
noted in its own opinions, once enforcement officials of the
Department opt to initiate proceedings, the immigration
judge must issue an order of removal if the applicant is
removable and has received adequate notice. See In re
Singh, 21 I & N Dec. 427, 435 (BIA 1996) (“As long as the
Service chooses to prosecute the applicant’s proceedings to
a conclusion, the Immigration Judges and this Board must
order the applicant excluded and deported if the evidence
supports such a finding.”); In re Yazdoni, 17 I & N Dec. 626,
630 (BIA 1981) (“so long as the enforcement officials of the
Service choose to initiate proceedings against an alien and
to prosecute those proceedings to a conclusion, the immigra-
tion judge and the Board must order deportation if the
No. 05-1126 5
evidence supports a finding of deportability on the ground
charged.”)
The “in general’ language which prefaces the statute does
not imply, as Ahmed argues, that the statute allows for
some unspecified and unknowable exceptions to the manda-
tory language of a statute. The words “in general” as a
preface to a statutory section indicate to the reader that the
text following will present a generalized overview of a
statutory section, to be followed later by more specifics. We
cannot accept Ahmed’s argument that the words “in gen-
eral” somehow erased or mitigated the clear demand of the
words “shall be ordered removed in absentia.” See 8 U.S.C.
§ 1229a(b)(5)(A).
Finally, Ahmed tries to skirt the mandates of the stat-
ute by claiming that the regulations for in absentia hear-
ings do not apply at all because the immigration judge
waived Ahmed’s appearance. This argument paints only
half of the picture. The immigration judge waived Ahmed’s
appearance only on the condition that Ahmed’s father
appear in his stead—a condition he repeated three times:
Judge to Mr. Helt: This is notice to the respon-
dent, I’ll waive the child’s appearance at the next
hearing and [sic] provided that Mr. Shakeel
Ahmed appears in respondent’s stead since Mr.
Ahmed would have to be responsible for any posi-
tion taken on behalf of this child who is underage
anyway. I would require him to be present, but
not his son. All right.
Judge to Mr. Ahmed: So this is notice to Mr.
Ahmed that your next hearing is on October 18th2
at 1 o’clock, you have [sic] appear for hearing
on that date. If you don’t, you could be ordered
2
The hearing date was later changed to July 30, 2003 (R. at 75),
(R. at 81).
6 No. 05-1126
removed from the United States in your absence
and be denied enumerated reliefs.
(R. at 72) (emphasis supplied). At an interim proceeding the
judge again reiterated;
The next hearing is on July 30th, 2003 at 1
o’clock and the respondent has to be at the hearing
on that date. If he is not, then he could be ordered
removed from the United States in his absence and
be denied enumerated relief . . . What I would
suggest, given what I observed at the last hearing
was a severe disability, is that the parent testify in
[sic] the respondent’s behalf.
(R. at 82).
Ahmed concedes as much: “It is true that the Petitioner’s
father or mother should have appeared on behalf of their
son, however, they did not.” (Ahmed’s brief at 11). Unfortu-
nately for Ahmed, this concession both begins and ends the
story. By failing to appear, Ahmed triggered the Depart-
ment regulations on in absentia hearings. Because Ahmed
was removable, had sufficient notice, and failed to appear,
the regulations required the immigration judge to enter an
order of removal. Under these circumstances an immigra-
tion judge has no authority to offer relief even for a compel-
ling case like the one Ahmed presents. We have, therefore,
no choice but to uphold the decision of the BIA determining
that the immigration judge erred by terminating the
proceedings in lieu of issuing a removal order. The decision
of the BIA is AFFIRMED.
No. 05-1126 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-21-05