William Camacho-Valdez v. Merrick Garland ( 2022 )

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 21-3112
WILLIAM A. CAMACHO-VALDEZ,
Petitioner,
v.
MERRICK B. GARLAND,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A201-358-408
____________________
SUBMITTED FEBRUARY 18, 2022 — DECIDED APRIL 6, 2022
____________________
Before SYKES, Chief Judge, and ROVNER and BRENNAN,
Circuit Judges.
SYKES, Chief Judge. William Camacho-Valdez, a native and
citizen of Guatemala, petitioned for review of the denial of
his applications for asylum, withholding of removal, and
relief under the Convention Against Torture. His attorney,
Daniel Thomann, filed an emergency motion for a stay of
removal along with the petition. But he did not pay the
2 No. 21-3112
docketing fee or submit a motion to proceed in forma pauperis
on his client’s behalf.
We issued a temporary stay and ordered the government
to respond to the motion. After reviewing the government’s
response, we ordered Camacho-Valdez to file a supplement
because the original stay motion contained little discussion
of the merits of his claims. The deadline for the supplement
passed, but Thomann filed nothing. Almost two weeks later,
we issued an order reminding him of his obligation and
gave him three more weeks to file the supplement. He
missed that deadline too. After three more weeks of radio
silence—more than eleven weeks after we ordered the
supplement—we denied the stay motion and ordered
Thomann to show cause why he should not be disciplined
for failing to comply with two court orders. He responded a
day late and explained that he had missed our earlier orders
because the notifications on his smartphone were not work-
ing. That excuse is unacceptable.
Meanwhile, the docketing fee remains unpaid, despite
multiple reminders and extensions of time. Nor has
Thomann filed a proper motion seeking permission for his
client to proceed in forma pauperis. See FED. R. APP. P. 24(b).
We warned in our reminders and extension orders that
failure to pay the fee or file an in forma pauperis motion
would result in dismissal. Those warnings went unheeded,
so we now dismiss the petition for review.
Because Thomann has repeatedly failed to comply with
our orders in this case without a valid excuse, we impose a
sanction of $1,000, which he must pay to the clerk of court
within 30 days. Finally, Thomann’s practice in this court
demonstrates a disturbing pattern of neglect of his clients
No. 21-3112 3
and court orders. Indeed, in the past seven years, we have
issued 24 show-cause orders against him in a dozen cases.
Yet he has never faced consequences. In light of this history,
we order Thomann to show cause within 21 days why he
should not be suspended or removed from this court’s bar.
I. Background
On November 12, 2021, Camacho-Valdez, through
Thomann as his attorney, petitioned for review of the denial
of his applications for asylum, withholding of removal, and
relief under the Convention Against Torture. Removal was
scheduled to occur that same day, so Thomann filed an
emergency motion for a stay of removal with the petition.
The motion stated in very general terms that the petition was
likely to succeed because the immigration agency over-
looked Camacho-Valdez’s claim that he feared persecution
based on his family membership and erroneously concluded
that he could reasonably relocate within his home country.
The motion also mentioned in passing that there may be
grounds to reopen the agency proceedings based on ineffec-
tive assistance of counsel.
We entered a temporary stay and ordered a response
from the government. The government responded that
Camacho-Valdez was not likely to succeed on the merits
because he never argued before the immigration judge that
his family membership put him in danger and the stay
motion failed to identify any particular flaw in the agency’s
conclusion that he could safely relocate within Guatemala.
The stay motion was indeed perfunctory, with only a
single, highly generalized paragraph about the substance of
Camacho-Valdez’s claims. Moreover, we had not yet re-
4 No. 21-3112
ceived the administrative record at that early point in the
case. Lacking any basis on which to evaluate the propriety of
a stay, we ordered Camacho-Valdez to file a supplement to
the motion by December 10. We reasoned that a supplement
could help us determine whether the petition for review was
likely to succeed on the merits—a critical factor in determin-
ing whether a stay is appropriate. See Nken v. Holder, 556 U.S.
418, 434 (2009).
In addition to the shortcomings in the stay motion,
Thomann neither paid the docketing fee nor filed a motion
seeking permission for Camacho-Valdez to proceed in forma
pauperis within the 14-day window specified in Circuit
Rule 3(b). See also FED. R. APP. P. 3(e). On December 6 the
clerk’s office issued a notice that the fee was overdue and
warned that the failure to pay it or file an in forma pauperis
motion within 14 days would result in dismissal.
By December 21 Thomann had not filed a supplement to
the stay motion, which was due on December 10. Nor had he
requested an extension of time. On our own motion, we
issued an order reminding him of his obligation and extend-
ing the deadline to comply to January 11, 2022. We also
ordered him to advise us of the status of any motion to
reopen the agency proceedings.
Weeks passed and Thomann still filed nothing: no sup-
plement, no docketing fee, no in forma pauperis motion. On
February 2—three weeks after the extended deadline ex-
pired—we denied the motion to stay removal. Concerned
about Thomann’s silence, we ordered him to show cause by
February 16 why he should not be disciplined for failing to
comply with the court’s orders.
No. 21-3112 5
Thomann finally surfaced on February 17, the day after
his response to the show-cause order was due. He moved for
leave to file a late response and tendered his response. He
also moved for a one-week extension of time to pay the
docketing fee or submit a motion to proceed in forma pau-
peris.
In his response to the show-cause order, Thomann ex-
plained that he has been working from home since the
beginning of the COVID-19 pandemic and has been relying
on his smartphone “as the primary means of receiving
phone, data, and email communication.” At some point after
he filed the petition for review in this case, his smartphone
notifications malfunctioned, which (as he explained) “had
happened in the previous years since counsel obtained his
smartphone.” Because his smartphone notifications were not
working properly, he did not see our orders “and thus failed
to respond.”
We directed the clerk to file Thomann’s late response to
the show-cause order. We also extended the deadline to pay
the docketing fee (or file an in forma pauperis motion) to
March 1. Thomann still did not comply. On March 24—more
than three weeks after the latest extension expired—he
moved for another extension of time to March 28. He said he
had discussed an in forma pauperis motion with his client and
prepared an affidavit, but he “needs the facility [where
Camacho-Valdez is detained] to return a signed copy.” We
granted the request and again extended the deadline, this
time to March 28. Thomann again did not comply. On
March 30 he sought leave to file a late motion for in forma
pauperis status. He explained that he had not received his
client’s signed affidavit and subsequently learned that his
6 No. 21-3112
client had been removed to Guatemala. He submitted a
boilerplate in forma pauperis motion but no affidavit from his
client.
II. Discussion
A. Dismissal of Petition for Review
We begin with the petition for review. The clerk of court
is authorized to dismiss an appeal if the docketing fee is not
paid when the case is filed or within 14 days after docketing.
7TH CIR. R. 3(b); see also FED. R. APP. P. 3(e) (requiring pay-
ment of all required fees when the appeal is filed). Thomann
did not tender the docketing fee when he filed the petition
for review on November 12, so the case was docketed with-
out payment and the fee was due not later than
November 26, 2021. By December 6 the fee remained unpaid,
and no motion seeking in forma pauperis status had been
filed. So the clerk’s office notified Thomann of the overdue
fee and warned that the petition would be dismissed if he
failed to pay it or file a motion to proceed in forma pauperis.
Three and a half months passed but Thomann neither paid
the fee nor moved for in forma pauperis status. On March 24
he belatedly requested an extension of time to March 28,
which we granted.
To date the fee remains unpaid. On March 30—two days
after the much-extended deadline—Thomann submitted a
motion for leave to file a late in forma pauperis motion and
tendered a boilerplate motion but no affidavit from
Camacho-Valdez. The motion does not comply with the
requirements of Rule 24(b), which requires an affidavit from
the litigant about his financial status (among other infor-
No. 21-3112 7
mation). Accordingly, we dismiss the petition for review
pursuant to Circuit Rule 3(b).
B. Sanctions
We now turn to Thomann’s response to our order to
show cause. Under Rule 46 of the Federal Rules of Appellate
Procedure, we may suspend, disbar, or discipline a member
of our bar “for conduct unbecoming a member of the bar.”
FED. R. APP. P. 46(b), (c). This standard is obviously quite
general. The Supreme Court has broadly construed it to
mean “conduct contrary to professional standards that
shows an unfitness to discharge continuing obligations to
clients or the courts[] or conduct inimical to the administra-
tion of justice.” In re Snyder, 472 U.S. 634, 645 (1985).
Sanctions decisions “should be carefully tailored to the
circumstances of the particular situation.” United States v.
Stillwell, 810 F.2d 135, 136 (7th Cir. 1987). A number of
factors are relevant, including our duty to protect litigants
and the court from counsel’s neglect or misfeasance, the
need to deter counsel and other attorneys from engaging in
similar conduct, and the effect of the sanction on the lawyer
involved. Id.; see also Waldon v. Wal-Mart Stores, Inc., Store
No. 1655, 943 F.3d 818, 825 (7th Cir. 2019) (explaining the
special need for sanctions when counsel’s unbecoming
conduct affects other litigants or misleads the court).
In his response to the show-cause order, Thomann offers
no reasonable excuse to justify his neglect of this case. He
asserts that he was unaware of our orders to file a supple-
ment to the stay motion because his smartphone’s email
notifications were not working properly. He says that he has
fixed his phone and now regularly checks the court docket.
8 No. 21-3112
Thomann’s explanation is unacceptable. No reasonable
lawyer relies on smartphone notifications to monitor email
communications or as a substitute for regularly checking the
court docket. That’s true in any case, but Thomann’s care-
lessness is particularly disturbing here because Camacho-
Valdez was detained and facing imminent removal. See In re
Riggs, 240 F.3d 668, 671 (7th Cir. 2001) (disbarring an attor-
ney and emphasizing that the “[a]bandonment of one’s
(imprisoned) client in a criminal case is one of the most
serious offenses a lawyer can commit”); United States v.
Santiago-Gonzalez, 816 F.2d 336, 337 (7th Cir. 1987) (suspend-
ing an attorney and highlighting the seriousness of missing
deadlines without requesting extensions while her client was
incarcerated). It was urgently necessary for Thomann to
keep up to date on his client’s case with more diligence than
waiting for smartphone email notifications. Because he did
not comply with our orders, we lacked sufficient infor-
mation to evaluate the stay motion and therefore denied it.
Beyond his inexcusable disregard of our orders to sup-
plement the stay motion, Thomann failed to pay the docket-
ing fee or submit a proper motion to proceed in forma
pauperis—despite several reminders and warnings about the
consequences of failing to satisfy one of these requirements.
As a result, he left us no choice but to dismiss the petition for
review. In the meantime, without a stay of removal,
Camacho-Valdez was indeed removed.
Thomann’s indifference to his basic responsibilities in
this case demonstrates that he has not fulfilled his profes-
sional duties to his client or the court. Sanctions are amply
justified—indeed, they are a necessary response to
Thomann’s abandonment of his client and also as a deter-
No. 21-3112 9
rent. See United States v. Song, 902 F.2d 609, 610 (7th Cir.
1990); Stillwell, 810 F.2d at 136. We therefore order Thomann
to pay a fine of $1,000 to the clerk of court within 30 days of
this decision.
C. New Order to Show Cause
Thomann’s misconduct in this case is not isolated. On the
contrary, in the past seven years, we have issued 24 show-
cause orders against him in 12 cases for similar disregard of
court orders and basic professional duties. 1 In each case
Thomann’s clients were immigrants vulnerable to removal,
and he offered flimsy excuses for neglecting their cases. He
never faced consequences, however, because he eventually
responded to our show-cause order—often, however, only
after a second or third—and we permitted the cases to
proceed.
More serious consequences are now clearly necessary to
address Thomann’s pattern of neglecting his professional
responsibilities, especially considering the particular vulner-
ability of the clients he routinely represents. For seven years
1 More precisely, in the past seven years, we have issued 24 show-cause
orders against Thomann in 12 cases involving 15 petitions for review,
three of which were consolidated with earlier petitions relating to the
same client. Camacho-Valdez v. Garland, No. 21-3112 (ECF No. 11); Mejia v.
Garland, No. 21-2088 (ECF Nos. 16, 17, 18); Jurek v. Garland, No. 21-2082
(ECF No. 7); Cuenca Brito v. Garland, No. 21-1278 (ECF No. 12); Casas v.
Garland, No. 20-1739 (ECF Nos. 21, 22, 25, 37); Mabuneza v. Garland,
Nos. 20-1799 & 20-2998 (ECF Nos. 10, 23, 25); Ferreyra v. Barr,
Nos. 18-3021 & 19-2055 (ECF Nos. 16, 30, 31); Umrani v. Barr, No. 18-1229
(ECF Nos. 9, 10); Galindo-Olaguez v. Sessions, No. 18-1113 (ECF Nos. 9,
10); Cortina-Chavez v. Sessions, No. 17-2116 (ECF No. 7); Yusev v. Sessions,
Nos. 16-1338 & 16-2242 (ECF Nos. 9, 18); Delgado-Arteaga v. Sessions,
No. 16-1816 (ECF No. 13).
10 No. 21-3112
he has persisted in a course of conduct unbecoming a mem-
ber of the bar of this court. Accordingly, we order Thomann
to show cause within 21 days of this decision why he should
not be suspended or removed from our bar. FED. R. APP.
P. 46(b).
III. Conclusion
In sum, we dismiss the petition for review for failure to
pay the docketing fee or file a motion to proceed in forma
pauperis that complies with Rule 24(b). We reject Thomann’s
explanation for his repeated failure to comply with court
orders in this case and impose a fine in the amount of $1,000
as a sanction pursuant to Rule 46(c). Payment is due to the
clerk of court within 30 days of this decision. Finally,
Thomann is ordered to show cause why he should not be
suspended or removed from the bar of this court pursuant to
Rule 46(b) for failing to discharge his obligations to his
clients and the court in the cases we have identified above.
His response is due within 21 days of this decision.
The clerk of court shall forward a copy of this opinion,
which serves as a public reprimand, to the Attorney Regis-
tration and Disciplinary Commission of the Illinois Supreme
Court for any action it deems appropriate.
PETITION DISMISSED, SANCTION IMPOSED, AND
NEW ORDER TO SHOW CAUSE ISSUED