Alvaro Cortina-Chavez v. Jefferson B. Sessions III ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-2116
ALVARO CORTINA-CHAVEZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General of the United States,
Respondent.
On Petition for Review of a Final Order of
the Board of Immigration Appeals.
No. A200 557 821
ARGUED FEBRUARY 7, 2018 — DECIDED JULY 5, 2018
Before BAUER, ROVNER, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Alvaro Cortina-Chavez petitions for
review of a decision of the Board of Immigration Appeals
(“BIA”) to deny his motion to reconsider the dismissal of his
administrative appeal. We dismiss his petition to the extent
that he seeks review of the BIA’s refusal to grant sua sponte
2 No. 17-2116
review of its prior decision, and we deny the remainder of the
petition.
I.
Cortina-Chavez is a native and citizen of Mexico who
entered the United States on an unknown date at an unknown
place, without presenting himself for inspection by an immi-
gration officer. He came to the attention of immigration
authorities after a December 2010 arrest for driving under the
influence. On December 28, 2010, the Department of Homeland
Security initiated removal proceedings against Cortina-Chavez
by filing a Notice to Appear. Cortina-Chavez conceded that he
was removable but applied for cancellation of removal,
asylum, withholding of removal, and protection under the
Convention Against Torture.
After a hearing, an Immigration Judge (“IJ”) denied the
application for cancellation of removal because Cortina-Chavez
failed to establish that he had been continuously, physically
present in the United States for ten years prior to filing his
application. The IJ also concluded that Cortina-Chavez was
ineligible for asylum because he did not submit his application
within one year of arrival, and did not come within any
exception to the one-year limit. The IJ denied withholding of
removal because Cortina-Chavez failed to demonstrate that he
faced past persecution in Mexico or that he would likely be
persecuted on his return to Mexico. Finally, the IJ denied his
application under the Convention Against Torture because he
did not establish that it was more likely than not that he would
be subject to torture if he returned to Mexico. The IJ therefore
ordered Cortina-Chavez removed to Mexico.
No. 17-2116 3
Cortina-Chavez, who was represented by counsel, filed a
Notice of Appeal with the BIA. Item 6 of the Notice of Appeal
Form EOIR-26 (“Form”) directs the person submitting the
document to “[s]tate in detail the reason(s) for this appeal.”
The Form provides a space for this purpose but also allows
additional sheets to be attached. The Form contains a promi-
nent warning, set out in a black box immediately below the
space provided for the detailed reasons for the appeal:
WARNING: You must clearly explain the
specific facts and law on which you base your
appeal of the Immigration Judge’s decision.
The Board may summarily dismiss your
appeal if it cannot tell from this Notice of
Appeal or any statements attached to this
Notice of Appeal, why you are appealing.
Administrative Record at 88. Counsel for Cortina-Chavez
opted to attach to the Form a list of seven “initial arguments on
appeal.” Each item on the list was stated in conclusory fashion
in a sentence or two, with no citations to the record or to
precedent. For example, the first ground for appeal stated:
First, the IJ committed legal error and abused
his discretion by finding that Respondent’s
evidence did not sufficiently corroborate his
claims. The IJ’s findings regarding the corrob-
oration of Respondents’ [sic] claim should be
reversed.
Administrative Record at 90.
4 No. 17-2116
Further down on the Form in item 8, counsel checked the
“yes” box in response to the question, “Do you intend to file a
separate written brief or statement after filing this Notice of
Appeal?” Immediately below this question is another promi-
nent black-box warning:
WARNING: … If you mark “Yes” in item #8,
you will be expected to file a written brief or
statement after you receive a briefing sched-
ule from the Board. The Board may sum-
marily dismiss your appeal if you do not file
a brief or statement within the time set in the
briefing schedule.
Administrative Record at 88. At the end of his list of initial
arguments, counsel reiterated his intent to file a brief, reserving
the right to provide additional grounds for appeal, “which will
be provided in an appeal brief to be submitted after issuance of
the transcript and receipt of the briefing schedule for this
appeal.” Administrative Record at 91.
The BIA sent out the promised briefing schedule, ordering
that Cortina-Chavez’s brief be filed by July 6, 2016. The briefing
schedule repeated the warning that the failure to file the brief
could result in summary dismissal of the appeal. Nevertheless,
Cortina-Chavez did not file a brief. The Board then summarily
dismissed his appeal on two grounds. First, the BIA noted that
the appeal consisted of conclusory statements that were devoid
of any legal argument, citations to supporting case law, or
reference to the record. See 8 C.F.R. § 1003.1(d)(2)(i)(A). Second,
after indicating that he would file a brief, Cortina-Chavez had
neither filed a brief nor explained his failure to do so within the
No. 17-2116 5
time set for filing. 8 C.F.R. § 1003.1(d)(2)(i)(E). See also Matter of
Valencia, 19 I & N. Dec. 354, 355–56 (BIA 1986) (holding that
summary dismissal was appropriate where an immigrant
failed to meaningfully identify in a Notice of Appeal the
reasons for taking the appeal, filed no separate brief and did
not seek oral argument to further explain any alleged error).
Cortina-Chavez did not petition for review of that decision
in this court. In his opening brief here, he concedes that he did
not seek review in this court because we have previously
upheld the appropriateness of summary dismissal in similar
circumstances. And indeed, our cases support counsel’s
apprehension. See Kokar v. Gonzales, 478 F.3d 803, 808 (7th Cir.
2007) (summary dismissal under § 1003.1(d)(2)(1)(E) for failure
to file a brief does not require further explanation or justifica-
tion by the BIA); Pasha v. Gonzales, 433 F.3d 530, 532 (7th Cir.
2005) (remarking that the Board is entitled to invoke section
1003.1(d)(2)(i)(A) and summarily dismiss an appeal where
counsel’s stated reasons for the appeal are wholly lacking in
specificity); Awe v. Ashcroft, 324 F.3d 509, 513 (7th Cir. 2003)
(noting that the regulations explicitly give the BIA authority to
dismiss procedurally defective appeals, including those where
a promised brief is never filed); Stroe v. INS, 256 F.3d 498, 499
(7th Cir. 2001) (failure to file a brief is a serious procedural
default in cases where the appellant is represented by counsel,
and dismissal is an appropriate sanction).
Forgoing a petition here, Cortina-Chavez instead filed a
motion to reconsider with the BIA. Specifically, Cortina-
Chavez requested review of his motion for reconsideration by
a three-member panel of the Board, sought sua sponte reconsid-
6 No. 17-2116
eration of the earlier decision, complained that the earlier
decision had been made by a single Board member rather than
a panel of three, and argued that summary dismissal under
8 C.F.R. § 1003.1(d)(2)(i)(A) was inappropriate. Cortina-Chavez
expressly did not challenge the alternate ground for summary
dismissal:
Respondent does not dispute that the failure
to file a brief may subject his appeal to
summary dismissal under
8 C.F.R. § 1003.1(d)(2)(i)(E), and undersigned
counsel intends to file a motion to reopen
with this Board pursuant to Matter of Lozada,
19 I&N Dec. 637 (BIA 1988), based on his
failure to ensure that Respondent’s appeal
brief was received by the Board. The inter-
vening holidays since the November 30, 2016
decision have prevented the completion of
the Lozada steps as of the filing of this motion.
Administrative Record at 12.1 Among other things, counsel
sought to have the Board sua sponte allow the late filing of his
brief (which he attached to his motion) and reconsider his case
in light of that brief. He conceded that his Notice of Appeal
was insufficient to effectively assert his arguments on appeal,
but contended that the original Notice contained sufficient
specificity to allow the Board to adjudicate at least some of his
claims.
1
Counsel had not filed that motion to reopen by the time of oral argument
on February 7, 2018.
No. 17-2116 7
The BIA, again through a single member, denied the motion
to reconsider in its entirety. The Board found that the motion
did not identify any error in law or fact, or any argument that
was overlooked. Moreover, counsel failed to explain why the
Notice of Appeal was not subject to summary dismissal, and
did not explain why he never filed the promised brief in a
timely fashion. The Board noted that counsel cited no authority
for his request for a three-member panel, and did not show
why his motion should be granted sua sponte. Cortina-Chavez
now petitions for review of the denial of his motion to recon-
sider.
II.
In his petition, Cortina-Chavez asserts that the BIA abused
its discretion in denying his motion for reconsideration. In
particular, he contends that the BIA erred when it found that
he had failed to indicate errors in law or fact in his motion. He
claims that he in fact raised two primary arguments: incorrect
application of 8 C.F.R. § 1003.1(d)(2)(i)(A), and failure to refer
his initial appeal to a three-member panel. He also challenges
the Board’s refusal to use its sua sponte authority to reconsider
its prior decision. Finally, he complains that the Board ignored
his separate request to have his motion for reconsideration
heard by a three-member panel.
We begin with the BIA’s refusal to use its sua sponte
authority to reconsider its earlier decision. Under 8 C.F.R.
§ 1003.2(a), the Board “may at any time reopen or reconsider
on its own motion any case in which it has rendered a deci-
sion.” But we have held that the Board's exercise of its sua
sponte authority is not subject to judicial review. Shah v. Holder,
8 No. 17-2116
736 F.3d 1125, 1126 (7th Cir. 2013); Anaya-Aguilar v. Holder, 683
F.3d 369, 372 (7th Cir. 2012). Moreover, “[i]t is difficult to
understand how action in response to a litigant’s motion could
occur sua sponte. That phrase means action on a tribunal’s own
initiative. If the tribunal acts in response to a litigant’s request,
the step is not on its own initiative.” Shah, 736 F.3d at 1126.
Because we have no authority to review the Board’s refusal, we
dismiss this part of the petition.
Our review of the denial of the motion to reconsider is for
abuse of discretion. See 8 C.F.R. § 1003.2(a) (“The decision to
grant or deny a motion to … reconsider is within the discretion
of the Board, subject to the restrictions of this section.”);
El-Gazawy v. Holder, 690 F.3d 852, 857 (7th Cir. 2012). In its
initial ruling, the BIA gave two reasons for summarily dismiss-
ing Cortina-Chavez’s appeal. First, his Notice of Appeal lacked
the specificity necessary to alert the Board to his grounds for
the appeal. That rationale for dismissal was based on
8 C.F.R. § 1003.1(d)(2)(i)(A). Second, after indicating that he
would file a brief, Cortina-Chavez had neither filed a brief nor
explained his failure to do so within the time set for filing,
justifying dismissal under 8 C.F.R. § 1003.1(d)(2)(i)(E). In his
motion to reconsider, Cortina-Chavez challenged only the first
rationale and expressly disclaimed an argument based on the
second reason for dismissal, his failure to file the promised
brief. When an adjudicator gives two independent, dispositive
reasons for ruling against a party, and the party challenges
only one of those grounds, any challenge to the second ground
is waived, and a reviewing court may affirm. See Reed v.
Freedom Mortgage Corp., 869 F.3d 543, 548 (7th Cir. 2017) (a
failure to address a court's second, dispositive rationale is an
No. 17-2116 9
adequate basis to affirm the court's decision); Griffin v. Bell, 694
F.3d 817, 826 (7th Cir. 2012) (same). See also INS v. Bagamasbad,
429 U.S. 24, 25 (1976) (“As a general rule courts and agencies
are not required to make findings on issues the decision of
which is unnecessary to the results they reach.”). The BIA did
not abuse its discretion in denying the motion to reconsider
when Cortina-Chavez challenged only one of the two inde-
pendent and adequate reasons the BIA gave for summarily
dismissing in the first place.
That leaves Cortina-Chavez’s challenge to the BIA’s failure
to refer his case to a three-member panel. Unless a case meets
the standards for assignment to a three-member panel under
8 C.F.R. § 1003.1(e)(6), “all cases shall be assigned to a single
Board member for disposition.” 8 C.F.R. § 1003.1(e). Subsection
(e)(6) lists the circumstances that might warrant a three-
member panel, and Cortina-Chavez cited two of them in his
petition to this court: “[t]he need to review a decision by an
immigration judge or the Service that is not in conformity with
the law or with applicable precedents;” and “[t]he need to
reverse the decision of an immigration judge or the Service,
other than a reversal under § 1003.1(e)(5).” 8 C.F.R.
§ 1003.1(e)(6)(iii) and (vi).
We review the Board’s decision to proceed with a single
judge for abuse of discretion. Yusev v. Sessions, 851 F.3d 763,
768 (7th Cir. 2017) (noting that the regulations give BIA
members discretion to refer an appeal to a three-member panel
in certain circumstances, but referral is not required). Cortina-
Chavez does not explain how the Board abused its discretion
in this instance, instead complaining primarily that the Board
did not adequately explain its reasons for assigning a single
10 No. 17-2116
judge to his case. But the regulations expressly provide that a
single board member or a panel may summarily dismiss any
appeal in which the party fails to specify the reasons for the
appeal (as happened here) or fails to file a brief after indicating
that one is forthcoming (as also happened here). 8 C.F.R.
§ 1003.1(d)(2)(i)(A) and (E). There was no abuse of discretion in
a single board member issuing a well-founded summary
dismissal and denying a motion to reconsider that decision.
DISMISSED IN PART AND DENIED IN PART.