Pritam Taggar v. Eric Holder, Jr. ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PRITAM KAUR TAGGAR, No. 09-71529
AKA Jaspreet Kaur Dhillon,
Petitioner, Agency No.
A045-253-632
v.
OPINION
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 10, 2013—San Francisco, California
Filed December 2, 2013
Before: J. Clifford Wallace, Milan D. Smith, Jr.,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Wallace
2 TAGGAR V. HOLDER
SUMMARY*
Immigration
The panel denied Pritam Taggar’s petition for review of
the Board of Immigration Appeals’ decision finding that she
waived and abandoned her applications for relief, and that she
was ineligible for a waiver of removability or inadmissibility.
The panel held that the standard of review applicable to
an Immigration Judge’s decision deeming an application
waived for failure to adhere to deadlines under 8 C.F.R.
§ 1003.31 is abuse of discretion. The panel held that a
deadline may lawfully be imposed upon an application for
relief under the Convention Against Torture, and that in this
case neither the IJ nor the Board abused discretion in holding
that Taggar waived her applications. The panel also held that
Taggar is not an inadmissible alien eligible for a waiver under
8 U.S.C. § 1227(a)(1)(H), because her charge of removability
is not waivable by that section, and because she was being
deported based on her conviction for falsifying documents,
not because she was inadmissible at entry.
COUNSEL
Maleeha Haq (argued), Fremont, California; Christopher J.
Stender, Immigration Practice Group, P.C., San Francisco,
California, for Petitioner.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TAGGAR V. HOLDER 3
Kiley L. Kane (argued), Trial Attorney; Tony West, Assistant
Attorney General; John S. Hogan, Senior Litigation Counsel,
United States Department of Justice, Civil Division,
Washington, D.C., for Respondent.
OPINION
WALLACE, Circuit Judge:
Pritam Taggar seeks review of a final order of removal
issued by the Board of Immigration Appeals (Board). The
immigration judge (IJ) ordered Taggar removed from the
United States. Taggar appealed from that judgment to the
Board, and moved to remand the case. The Board dismissed
the appeal and denied the motion to remand. Taggar filed a
timely petition for review. We have jurisdiction under
8 U.S.C. § 1252(a)(1), and we deny the petition.
I.
On October 28, 2004, the government served Taggar with
a notice to appear and charged her as removable from the
United States under 8 U.S.C. § 1227(a)(1)(A), because she
was inadmissible at the time of her entry into the United
States. Her immigration proceedings were administratively
closed on June 29, 2005, pending resolution of criminal
proceedings against her. On May 23, 2006, Taggar was
convicted of conspiracy to defraud the United States through
visa fraud. The immigration proceedings recommenced, with
the government providing additional factual allegations and
two additional charges of removability, under 8 U.S.C.
§ 1227(a)(1)(G)(ii), for procuring a visa by fraud, and
4 TAGGAR V. HOLDER
8 U.S.C. § 1227(a)(3)(B)(iii), for her criminal conviction for
conspiracy to commit visa-related fraud.
In a January 24, 2007 proceeding before the IJ, Taggar’s
attorney conceded that she was removable as charged by the
government. The attorney stated “[t]he sole, the applications
[sic] that she will be pursuing are applications pursuant to
241(b)(3)(B), as well as Convention Against Torture.” The
IJ set the filing deadline for any such applications for April
24, 2007, as requested by Taggar’s attorney. Her attorney
requested and received three extensions to file the
applications for relief. But Taggar did not file any
application by the due date. The government moved to
pretermit Taggar’s applications because of the failure to file
timely. Taggar did not respond or file an application for
relief under the Convention Against Torture, but instead filed
a new ground of relief, requesting a waiver of inadmissibility
under 8 U.S.C. § 1227(a)(1)(H). The government renewed its
motion to pretermit, arguing that filing was late and that
Taggar was ineligible for the waiver.
On June 27, 2007, the IJ ruled that Taggar was
removable, and that she had abandoned her applications for
relief and waiver by the failure to file timely. The IJ ordered
Taggar removed to India. Taggar filed a motion to
reconsider, which was denied.
Taggar appealed from the removal order to the Board, and
moved before the Board to remand for a hearing on her
waiver application. The Board dismissed her appeal and
denied the motion to remand. The Board held that the IJ had
properly deemed Taggar’s applications abandoned and
waived. Further, the Board held that Taggar was not eligible
TAGGAR V. HOLDER 5
for the waiver of removability that she sought. Taggar seeks
review of the Board’s decision.
II.
We have not articulated the standard of review applicable
to an IJ’s decision to deem applications waived for failing to
adhere to deadlines imposed under 8 C.F.R. § 1003.31, which
allows the IJ to “set and extend time limits for the filing of
applications and related documents and responses thereto, if
any,” and provides that “[i]f an application or document is not
filed within the time set by the Immigration Judge, the
opportunity to file that application or document shall be
deemed waived.” We hold the standard is abuse of
discretion. First, that is the legal standard for reviewing
whether an IJ should have granted a motion for continuance.
Vargas-Hernandez v. Gonzales, 497 F.3d 919, 923 (9th Cir.
2007). Second, it is also the standard for reviewing a district
court’s dismissal of an action for failure to file timely in
compliance with its orders. Ferdik v. Bonzelet, 963 F.2d
1258, 1260 (9th Cir. 1992). Third, abuse of discretion is the
standard a number of our sister circuits use to review
decisions that an immigration application was abandoned as
untimely. Dedji v. Mukasey, 525 F.3d 187, 191–92 (2d Cir.
2008); Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1306 n.3
(11th Cir. 2009); Arellano-Hernandez v. Holder, 564 F.3d
906, 911 (8th Cir. 2009); Moreta v. Holder, 723 F.3d 31,
33–34 (1st Cir. 2013); cf. Hassan v. Gonzales, 403 F.3d 429,
436 (6th Cir. 2005).
We review the Board’s denial of motions to remand for
abuse of discretion. Vargas-Hernandez, 497 F.3d at 923.
6 TAGGAR V. HOLDER
III.
Neither the IJ nor the Board abused their discretion in
holding that Taggar had waived her application for relief and
protection. Taggar did not file her application for relief by
May 25, 2007, which was the extended due date for her
applications set by the IJ.
Taggar now argues that the IJ abused its discretion
because the May 25 deadline applied only to Taggar’s
application for withholding of removal, not an application
under the Convention Against Torture. This is incorrect.
Taggar’s attorney told the IJ that “[t]he sole, the applications
that she will be pursuing are applications pursuant to
241(b)(3)(B), as well as Convention against Torture.” The IJ
set the deadline for the “applications” as April 24, 2007.1
Taggar’s attorney did not mention any other applications or
motions.
Taggar wrongly argues that the deadline governed only
“withholding,” which refers to relief under the Immigration
and Nationality Act. Her attorney specifically mentioned that
the Convention Against Torture claim would be governed by
the same deadline, and protection under the Convention
Against Torture is also referred to as “withholding of
removal.” 8 C.F.R. § 1208.16 (entitled “Withholding of
removal under section 241(b)(3)(B) of the Act and
withholding of removal under the Convention Against
Torture”). Indeed, when Taggar’s attorney requested
continuances from the deadline, he requested a “72-Hour
Enlargement of Time to File Applications for Relief”
(emphasis added), not solely for a single application under the
1
The immigration judge erroneously wrote the date was April 24, 2006.
TAGGAR V. HOLDER 7
Immigration and Nationality Act. Neither the IJ nor the
Board abused their discretion in concluding that Taggar had
failed to file her applications within the deadlines set by the
immigration judge. Her application for a waiver of
inadmissibility was also filed after May 25, 2007, so the IJ
did not abuse its discretion in holding she abandoned that
application.
Taggar separately argues that no deadline can lawfully be
imposed on applications for relief under the Convention
Against Torture. This is incorrect. See 8 C.F.R. § 1208.16
(an alien must file an “application” under the Convention);
8 C.F.R. § 1003.31(c) (“[i]f an application or document is not
filed within the time set by the Immigration Judge, the
opportunity to file that application or document shall be
deemed waived”).
IV.
The Board concluded that Taggar abandoned her
application for a waiver of inadmissibility. The Board
additionally held that Taggar was ineligible for such a waiver.
Those rulings were not erroneous.
Some inadmissible aliens are eligible for waivers of their
removal by the Attorney General, who has discretion to waive
the removal “of aliens within the United States on the ground
that they were inadmissible at the time of admission as aliens
described in section 1182(a)(6)(C)(i).” 8 U.S.C.
§ 1227(a)(1)(H). An alien is inadmissible under section
1182(a)(6)(C)(i), and thus eligible for the waiver, if she
attempts to procure a visa or other legal documentation by
fraud or willfully misrepresenting a material fact. Id.
§ 1182(a)(6)(C)(i). The waiver extends to aliens who are
8 TAGGAR V. HOLDER
inadmissible on such a ground if they meet a number of
other conditions. The waiver “shall also operate to waive
removal based on the grounds of inadmissibility directly
resulting from such fraud or misrepresentation.” Id.
§ 1227(a)(1)(H)(hanging paragraph).
Taggar is not an inadmissible alien eligible for the waiver.
In its supplemental filing, the government charged her as
removable under 8 U.S.C. § 1227(a)(3)(B)(iii) (making aliens
convicted of certain crimes deportable), based on her criminal
conviction. As our sister circuit has held, that charge, under
a different paragraph of section 1227(a), is not waivable by
section 1227(a)(1)(H). Gourche v. Holder, 663 F.3d 882,
886–87 (7th Cir. 2011) (“it is clear that the phrase ‘this
paragraph’ in subparagraph (H)’s waiver provision refers
only to paragraph (1) of subsection (a)” not “grounds for
removal under paragraph (3) of 8 U.S.C. § 1227(a)”); see
also Vasquez v. Holder, 602 F.3d 1003, 1011–12 (9th Cir.
2010) (“First, § [1227(a)(1)(H)] provides that ‘the provisions
of this paragraph relating to the removal of aliens within the
United States on the ground that they were inadmissible at the
time of admission as aliens described in the fraud provision
may be waived.’ ‘This paragraph’ refers to § [1227(a)(1)]”)
(emphasis in original, alterations omitted). Moreover, Taggar
was not deportable under § 1227(a)(1), the subparagraph that
sets out grounds for inadmissibility. Rather, Taggar was
determined to be deportable under § 1227(a)(3)(B)(iii), which
provides for deportability based on a conviction under
15 U.S.C. § 1546 for failure to register and falsification of
documents. Taggar is thus being deported because she was
convicted of falsifying documents, and not because she was
inadmissible at entry. Accordingly, § 1227(a)(1)(H)’s
hanging paragraph is not applicable to her case, as it only
allows the Attorney General to waive grounds of
TAGGAR V. HOLDER 9
inadmissibility which are a direct result of acts of fraud and
misrepresentation specified in 8 U.S.C. § 1182(a)(5)(A) and
(7)(A). See § 1227(a)(1)(H)(i)(II). One of Taggar’s grounds
for removability cannot be waived by the discretionary
decision of the Attorney General. Therefore, the Board did
not err in determining that Taggar was ineligible for a waiver
of inadmissibility.
Petition DENIED.