Milis v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YOUSELINE MILIS, No. 21-206
Petitioner, Agency No. A209-141-524
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 9, 2023**
Pasadena, California
Before: GILMAN***, FORREST, and H.A. THOMAS, Circuit Judges.
Youseline Milis, a native and citizen of Haiti, petitions for review of the
Board of Immigration Appeals’ dismissal of her appeal from an immigration
judge’s (IJ) decision to deem abandoned her applications for asylum,
withholding of removal, and relief under the Convention Against Torture. We
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
have jurisdiction under 8 U.S.C. § 1252. Because the Board’s opinion did not
expressly adopt any part of the IJ’s decision, we limit our review to the Board’s
opinion. Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th Cir. 2020). We
review the Board’s legal conclusions de novo and its factual findings for
substantial evidence, Bringas-Rodriguez v. Sessions, 850 F.3d 1051,
1059 (9th Cir. 2017) (en banc). We deny the petition for review.
The Board agreed with the IJ’s determination that Milis had abandoned
her applications because she failed to comply with the applicable biometrics
requirement without good cause. 8 C.F.R. § 1003.47(c)–(d) (2023) (failure to
comply with biometrics requirement constitutes abandonment of application;
abandonment may be excused by good cause). Milis does not dispute that she
was informed of the biometrics requirement and of the consequences for failing
to abide by it. But she contends that her failure to satisfy the requirement was
due to errors on the part of the United States Citizenship and Immigration
Services (USCIS). Specifically, Milis claims that she timely sent USCIS the
required biometrics registration but that USCIS (i) did not send her a notice
indicating a date and time for completing the biometrics requirement, and
(ii) did not inform her that the requirement was unmet in her case.
This argument is foreclosed by our precedent. We have held that the
burden of complying with the biometrics requirement is on the applicant and
that the applicant must “follow up” if the “biometrics submission receipt
notice[] . . . is not received.” Gonzales-Veliz v. Garland, 996 F.3d 942, 948, 950
2 21-206
(9th Cir. 2021). The Board determined that Milis failed to submit documentary
evidence substantiating her claim that she sent the biometrics registration to
USCIS. Milis does not dispute this holding. Substantial evidence, moreover,
supports the Board’s holding that Milis did not exercise due diligence in seeking
to complete the biometrics requirement in a timely manner. Despite not
receiving any notice from USCIS that the biometrics registration had reached it,
Milis’s attorney did not follow up with the agency, even though her attorney
had over six months to do so before the time of the final hearing. Given the
absence of good cause excusing Milis’s failure to comply with the biometrics
requirement, the Board did not err in dismissing Milis’s appeal. See 8 C.F.R.
§ 1003.47(c)–(d) (2023); Gonzales-Veliz, 996 F.3d at 948.
PETITION DENIED.
3 21-206