Esma Juarez-Meono v. Eric Holder, Jr. ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1788 & 08-1789
E DGAR JUAREZ and E SMA JUAREZ-M EONO ,
Petitioners,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petitions for Review of Orders of the
Board of Immigration Appeals.
Nos. A75-475-617 & A70-059-846
A RGUED JANUARY 12, 2009—D ECIDED M ARCH 12, 2010
Before E ASTERBROOK, Chief Judge, and W ILLIAMS and
S YKES, Circuit Judges.
S YKES, Circuit Judge. Esma Juarez-Meono and her son
Edgar Juarez are Guatemalan natives who entered this
country illegally in 1989 and 1997, respectively. Juarez-
Meono requested asylum shortly after arriving, but
Juarez did not. When the Department of Homeland
Security (“DHS”) initiated removal proceedings against
2 Nos. 08-1788 & 08-1789
them in 2004, Juarez-Meono and Juarez told the immigra-
tion court they intended to file applications seeking
various forms of relief from removal. Both filed their
applications nearly 14 months late, however, and they
never provided their biometrics—fingerprints and other
identifying biographical information—despite being
admonished by the immigration judge (“IJ”) to “pester”
their attorney about completing this necessary part of the
application process. Juarez-Meono and Juarez later
moved for a continuance so they could have more time
to comply with this requirement. The IJ denied the
motion and concluded that their untimely applications
and failure to provide the required biometrics meant
they had abandoned their applications for relief. The IJ
entered orders of removal, and the Board of Immigration
Appeals (“BIA”) affirmed.
Juarez-Meono and Juarez petitioned this court for
review. The Attorney General initially argued that our
jurisdiction was barred by 8 U.S.C. § 1252(a)(2)(B)(ii), but
that argument has been eliminated by the Supreme
Court’s recent decision in Kucana v. Holder, 130 S. Ct. 827(2010). Even so, the petitioners cannot prevail. They were
given ample time to file their applications for relief
and provide biometrics, and did not have good cause for
their delay; the IJ did not abuse his discretion in
denying their motion for a continuance. Nor was it an
abuse of discretion to reject their requests for relief
because of their failure to comply with these applica-
tion prerequisites. We therefore deny the petitions
for review.
Nos. 08-1788 & 08-1789 3
I. Background
Juarez-Meono and Juarez, her 27-year-old son, are
natives of Guatemala. They entered the United States
illegally nearly a decade apart; Juarez-Meono arrived in
1989 and asked for asylum in 1990, while Juarez arrived
in 1997. Immigration officials ignored Juarez-Meono’s
request for asylum for more than a decade. The DHS
initiated removal proceedings against the pair in 2004.
At a hearing in immigration court on July 26, 2005,
both Juarez-Meono and Juarez conceded the removal
charges but told the IJ they planned to seek various
forms of relief from removal. Juarez-Meono said she
intended to apply for cancellation of removal in addition
to pursuing her 1990 asylum application; Juarez said he
planned to apply for asylum and withholding of re-
moval.1 When the IJ asked the petitioners’ attorney how
much time he wanted to file the applications for relief, the
attorney requested 60 days. The IJ agreed, ordered the
applications to be filed by September 26, 2005, and set
November 13, 2006, as the date for the next hearing. The
IJ told both petitioners they needed to provide finger-
prints and biographical information before that hearing
in order to be eligible for relief. See 8 U.S.C. § 1158(b)(1)
1
Juarez was originally included on his mother’s application as
a derivative beneficiary, but this was a mistake. Because Juarez
was not in the United States when his mother’s 1990 application
was filed, he cannot be a derivative beneficiary. See 8 C.F.R.
§§ 208.3(a), 1208.3(a). Thus, he was required to file his own
application.
4 Nos. 08-1788 & 08-1789
(directing the Attorney General to establish procedures
for asylum applications); id. § 1158(d)(1) (permitting the
Attorney General to promulgate regulations requiring
applicants to submit, among other things, fingerprints
and a photograph); id. § 1158(d)(5)(A)(i) (requiring the
Attorney General to check the identity of all asylum
applicants against relevant Justice and State Department
databases to determine whether there are grounds for inad-
missibility or ineligibility); 8 C.F.R. § 1003.47 (requiring
applicants to submit fingerprints and biographical infor-
mation before asylum application will be considered).
The record indicates that both Juarez-Meono and
Juarez were well aware of the relevant requirements. The
DHS had served notice on both petitioners explaining
the biometrics requirements, and the IJ addressed the
petitioners personally and instructed them both to
“pester your attorney” to get fingerprints submitted
because they would not be eligible for relief unless they
complied. Each petitioner acknowledged receiving these
instructions. The petitioners’ attorney also acknowledged
his familiarity with the biometrics procedures and said
he understood the process could take some time.
The petitioners did not file their applications by the
September 26, 2005 deadline. Nor did they comply with
the biometrics requirements. Less than a week before
the November 13, 2006 hearing, they filed motions asking
for a continuance. Counsel advised the court that the
applications had been mailed but he had not yet received
a receipt confirming they had been filed, nor had he
obtained an appointment for the petitioners to provide
Nos. 08-1788 & 08-1789 5
fingerprints. Counsel also claimed that he had “been
unable to devote adequate time” to preparing the peti-
tioners’ cases. The IJ denied the continuance motions on
the ground that no good cause had been shown for the
lengthy delay. On November 8, 2006, Juarez’s application
for asylum arrived at the immigration court. Juarez-
Meono’s application arrived on the date of the petitioners’
hearing—November 13, 2006—but after the hearing con-
cluded. Both applications were almost 14 months late.
At the November 13 hearing, the DHS took the position
that the petitioners had abandoned their claims for
relief because they failed to submit fingerprints or timely
file their applications for relief and had not shown good
cause for the delay. See 8 C.F.R. § 1208.10 (application
may be deemed abandoned for failure to comply with
biometrics requirements unless good cause is shown); id.§ 1003.31(c) (application deemed waived if not timely
filed). The petitioners’ attorney maintained, without
corroboration, that he had mailed the applications and
tried to make a fingerprint appointment for his clients
in September 2006 and attributed the delay to a “failure
of communication” between his office and the petitioners.
He again asked for a continuance, but conceded that
the petitioners lacked good cause. He argued that they
should not be penalized for missing the court’s deadlines
when the immigration authorities had not acted on Juarez-
Meono’s asylum application for more than a decade.
The IJ agreed with the DHS that there was no good
cause for a continuance and no valid explanation for
either the untimely applications or the failure to comply
6 Nos. 08-1788 & 08-1789
with the biometrics requirements. The IJ held that the
petitioners’ failure to submit their fingerprints, coupled
with the nearly 14-month delay in filing their applica-
tions, meant that they had abandoned their applications
for relief.2 The IJ entered orders of removal and denied
Juarez’s request for voluntary departure based on arrests
for drunk driving and two other crimes. Juarez-Meono
and Juarez appealed to the BIA, but their attorney never
filed a brief in support of their appeals. The DHS asked
for summary affirmance, and in separate orders entered
on March 4 and 10, 2008, the BIA affirmed.
In Juarez-Meono’s case the BIA summarily affirmed
the IJ’s decision deeming her applications abandoned
based on her failure to submit fingerprints. The BIA also
noted that she had not filed a brief on appeal, meaning
the only argument before the appellate tribunal was the
summary statement in her notice of appeal. In Juarez’s
case the BIA explained that under 8 C.F.R. § 1003.31(c), a
failure to comply with the deadline for filing an applica-
tion for immigration relief may be deemed a waiver if
no good cause is shown. Because Juarez gave no reason for
his failure to timely file his asylum and withholding-of-
2
Because each petitioner’s application was slightly different, so
too is the phrasing of the IJ’s orders. As to Juarez-Meono the IJ
ordered that her applications for asylum, cancellation of
removal, withholding of removal, and relief under the Con-
vention Against Torture were “deemed abandoned.” As to
Juarez the IJ ordered that his applications for asylum and
withholding of removal were denied for “failure to prosecute
timely.”
Nos. 08-1788 & 08-1789 7
removal applications, and also had not submitted finger-
prints, the BIA dismissed the appeal. Both Juarez-Meono
and Juarez petitioned this court for review, and we con-
solidated their petitions.
II. Discussion
When, as in Juarez-Meono’s case, the BIA summarily
affirms the IJ’s decision, we review the IJ’s decision.3
Tabaku v. Gonzales, 425 F.3d 417, 421 (7th Cir. 2005). When,
as in Juarez’s case, the BIA agrees with the IJ’s decision
but supplements the IJ’s decision with its own explana-
tion for rejecting the appeal, we review the IJ’s decision
as supplemented by the BIA’s reasoning. Niam v. Ashcroft,
354 F.3d 652, 655-66 (7th Cir. 2004).
3
The Attorney General argues that we lack jurisdiction to
review any of the claims raised in Juarez-Meono’s petition for
review because she never filed a brief to support her claims
before the BIA and therefore failed to exhaust her administra-
tive remedies as required by 8 U.S.C. § 1252(d)(1). We note
first that a failure to exhaust administrative remedies does not
affect our jurisdiction, although it may amount to a forfeiture
of the arguments not developed before the agency. See
Korsunskiy v. Gonzales, 461 F.3d 847, 849 (7th Cir. 2006). Juarez-
Meono’s failure to file a brief with the BIA does not necessarily
mean she failed to exhaust administrative remedies; the impor-
tant question is whether she asked the BIA to consider the
same legal arguments she makes in her petition for review.
Here, Juarez-Meono’s notice of appeal stated the basic con-
tours of the claims she wished to make. Thus, her notice of
appeal was (barely) enough to preserve her arguments. See
Capric v. Ashcroft, 355 F.3d 1075, 1088 (7th Cir. 2004).
8 Nos. 08-1788 & 08-1789
Initially, a threshold issue in this case had been the
scope of our jurisdiction. This question turned on the
applicability and operation of one of the jurisdiction-
stripping provisions of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (“IIRIRA”)—
8 U.S.C. § 1252(a)(2)(B)(ii). That section of the Immigration
and Nationality Act (“INA”) provides that no court shall
have jurisdiction to review any action of the Attorney
General “the authority for which is specified under
this subchapter to be in the discretion of the Attorney
General.” Id. We have held that this provision blocks
our jurisdiction to review discretionary immigration-
agency decisions where the discretion is conferred by
regulation—including denials of reopening, Kucana v.
Mukasey, 533 F.3d 534, 536 (7th Cir. 2008), and denials of
continuances, Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007),
both of which are agency decisions made discretionary
by regulation.
The Supreme Court recently rejected our interpreta-
tion of § 1252(a)(2)(B)(ii) and reversed our decision in
Kucana. See Kucana v. Holder, 130 S. Ct. 827 (2010). The
Court held that § 1252(a)(2)(B)(ii) applies only to agency
decisions made discretionary by statute, not regulation.
Id. at 831. This abrogates our treatment of § 1252(a)(2)(B)(ii)
in Ali as well. Our review is therefore plenary—not limited
to the constitutional claims and questions of law that are
excepted from § 1252(a)(2)(B)(ii)’s jurisdictional bar by
Nos. 08-1788 & 08-1789 9
a separate subsection of the statute.4 See 8 U.S.C.
§ 1252(a)(2)(D) (“[n]othing in subparagraph (B) . . . shall
be construed as precluding review of constitutional
claims or questions of law”). Because the BIA has “broad
discretion” in this area, however, we use “a deferential,
abuse-of-discretion standard of review.” Kucana, 130
S. Ct. at 834.
The regulatory scheme governing applications for
relief from removal authorizes immigration judges to
“set and extend time limits for the filing of applications
and related documents.” 8 C.F.R. § 1003.31(c). If an ap-
plication is not filed within that time period, “the op-
portunity to file that application or document shall be
deemed waived.” Id. The regulations also provide that
the failure to comply with biometrics requirements may
be deemed an abandonment of the application:
Failure to file necessary documentation and comply
with the requirements to provide biometrics and other
biographical information . . . within the time
allowed by the immigration judge’s order[] constitutes
4
To the extent the Attorney General’s jurisdictional argument
rests on 8 U.S.C. § 1252(a)(2)(B)(i), it is unaffected by the
Supreme Court’s decision in Kucana; our treatment of
§ 1252(a)(2)(B)(i) in Ali and Leguizamo-Medina v. Gonzales, 493
F.3d 772, 775 (7th Cir. 2007), is likewise unaffected by Kucana.
Juarez-Meono’s belated application for cancellation of removal
under 8 U.S.C. § 1229b is a form of relief that falls within
§ 1252(a)(2)(B)(i)’s jurisdictional bar, but because both peti-
tioners sought asylum, our jurisdiction to consider the mer-
its—including the IJ’s denial of a continuance—is intact.
10 Nos. 08-1788 & 08-1789
abandonment of the application and the immigra-
tion judge may enter an appropriate order dismissing
the application unless the applicant demonstrates
that such failure was the result of good cause.
Id. § 1003.47(c); see also id. § 1208.10 (providing that an
alien’s failure to “comply with processing requirements
for biometrics and other biographical information
within the time allowed will result in dismissal of the
application, unless the applicant demonstrates that such
failure was the result of good cause” (emphasis added));
id. § 1208.14(a) (prohibiting an IJ from granting asylum
unless an alien complies with the biometrics requirement).
A continuance requires a showing of good cause. See
8 C.F.R. § 1003.29 (an IJ “may grant a motion for con-
tinuance for good cause shown”).
The IJ was well within his discretion to deny the peti-
tioners’ continuance motions and their requests for
relief from removal as well. The petitioners conceded
before the IJ that they had no good cause for their failure
to timely file their applications for relief and submit
the required biometrics, and they have not argued against
that concession here. They claim instead that 8 C.F.R.
§ 1003.47, the regulation requiring aliens in removal
proceedings to provide biometrics, is ultra vires. This
argument is frivolous. The Attorney General is directed by
statute to establish procedures for the consideration of
applications for asylum and may “require applicants to
submit fingerprints and a photograph at such time and
in such manner” as he “determines by regulation.” 8 U.S.C.
§ 1158(d)(1). More generally, the Attorney General has
Nos. 08-1788 & 08-1789 11
statutory authority to promulgate regulations governing
removal and other proceedings before immigration
judges and the BIA. See generally 8 U.S.C. § 1103(g)(2).
The petitioners argue in the alternative that the regula-
tion does not apply here because it became effective on
April 1, 2005, and Juarez-Meono’s original asylum ap-
plication naming Juarez as a derivative beneficiary was
filed in 1990. We have already explained, see supra n.1,
that Juarez could not be a derivative beneficiary and was
required to file his own application. More fundamentally,
however, the biometrics requirements were made im-
mediately applicable to all removal proceedings conducted
after the April 1, 2005 effective date, see Background and
Security Investigations in Proceedings Before Immigra-
tion Judges and the Board of Immigration Appeals,
70 Fed. Reg. 4743-44 (Jan. 31, 2005), which plainly includes
the removal proceedings at issue here.
The petitioners also assert a rather vague due-process
challenge to the denial of their motion for a continuance
and the IJ’s decision to deem their applications for relief
abandoned. But immigration proceedings satisfy due
process so long as they conform to the applicable
statutory and regulatory standards, as these did. See
Ndonyi v. Mukasey, 541 F.3d 702, 709 (7th Cir. 2008).
“Although an immigration judge could conceivably
impose a deadline so unreasonable that it would not
afford the alien a ‘reasonable opportunity’ to present
evidence,” that did not occur here. Hussain v. Gonzales,
424 F.3d 622, 626 (7th Cir. 2005). The petitioners had
60 days to file their applications and well over a year
12 Nos. 08-1788 & 08-1789
to comply with the biometrics requirements. That is
plenty of time.
In the end, Juarez and Juarez-Meono fall back on an
appeal to equitable considerations, arguing that the IJ
should have accepted their late applications and given
them more time to submit the necessary biometrics
because Juarez-Meono’s original asylum application was
ignored and they have lived in the United States for a
long time. The government’s delay is not a relevant
factor here; the decision when to initiate removal pro-
ceedings is committed to the discretion of immigration
authorities. See Reno v. Am.-Arab Anti-Discrimination Comm.,
525 U.S. 471, 489 (1999). Once removal proceedings
have begun, the immigration judge has an obligation to
resolve them in a “timely and impartial” manner, 8 C.F.R.
§ 1003.10, and applicants for relief have an obligation to
comply with the statutory and regulatory prerequisites
for relief. The petitioners did not do so, and they have
conceded that they had no good cause for this failure.
We note in closing that the submission of biometrics is
not a mere technicality, but rather is necessary to verify the
applicant’s identity and determine whether there are
grounds for inadmissibility or ineligibility for relief.
Congress has specifically prohibited the Attorney General
from granting asylum to any applicant
until the identity of the applicant has been checked
against all appropriate records or databases main-
tained by the Attorney General and by the Secretary of
State . . . to determine any grounds on which the
alien may be inadmissible to or deportable from the
Nos. 08-1788 & 08-1789 13
United States, or ineligible to apply for or be granted
asylum.
8 U.S.C. § 1158(d)(5)(A)(i).
Finally, we note that on this record there is cause to
question the performance of petitioners’ counsel. Although
there may be more to the story, a professional investiga-
tion into his handling of the petitioners’ cases appears to
be warranted.5
5
The petitioners were represented in agency proceedings
and in this court by Attorney Roy Petty. As we have explained,
at the November 13, 2006 hearing, Petty vaguely blamed the
untimely applications and failure to provide biometrics on
a “failure of communication” between his office and the
petitioners, but ultimately conceded he could not show good
cause for the delay. The specific nature of the asserted “failure
of communication” is not clear. Nor is it clear whether the
fault lies with the attorney or his clients or both. The present
record, however, suggests that Petty may be responsible for
the problem. Juarez’s application for asylum reflects that
Juarez signed it in September 2006 (by that point almost a year
late); it apparently took Petty almost two months to mail the
signed application to the immigration authorities. Juarez-
Meono’s cancellation-of-removal application was signed on
November 9, 2006, four days before the hearing and after the
continuance had already been denied. However, Petty had
represented in his continuance motion that Juarez-Meono’s
application had already been mailed. At the November 13
hearing, Juarez-Meono told the IJ that she asked Petty’s secre-
tary about the fingerprint requirement and was told it was not
urgent.
(continued...)
14 Nos. 08-1788 & 08-1789
Accordingly, we D ENY the petitions for review. The clerk
of this court shall transmit a copy of this opinion to the
Arkansas Committee on Professional Conduct and the
Department of Justice’s Executive Office for Immigration
Review.
5
(...continued)
Petty said in the continuance motions that he had been unable
to devote enough time to the petitioners’ cases. One of the
reasons he offered for his time crunch was that he had to
respond to the BIA’s dismissal—on untimeliness grounds—of
two unrelated appeals; dismissals that he claimed were “unwar-
ranted.” On appeal to the BIA, Petty failed to file briefs for
the petitioners. He also did not file a reply brief in this court.
This course of conduct warrants referral to state disciplinary
authorities for possible investigation. Petty is a member of the
Arkansas bar; we direct the clerk to send a copy of this opin-
ion to the Arkansas Committee on Professional Conduct. The
clerk shall also send a copy of this opinion to the Department of
Justice’s Executive Office for Immigration Review. See 8 C.F.R.
§§ 1003.17(a), 1292.1(a) (regarding admission to practice in
the immigration courts). Because the petitioners have been
represented by Petty throughout these proceedings, there is
no claim for ineffective assistance of counsel. See Stroe v. INS,
256 F.3d 498, 504 (7th Cir. 2001); Matter of Lozada, 19 I. & N. Dec.
637, 639 (BIA 1988).
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