Donnee v. Holder, Jr.

United States Court of Appeals
For the First Circuit
No. 13-1237
FRITZ JUNIOR DONNEE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Stephen A. Lagana, Stephen A. Pegnam and Law Offices of
Stephen A. Lagana on brief for petitioner.
Stuart F. Delery, Assistant Attorney General, Shelley R. Goad,
Assistant Director, and Nancy K. Canter, Trial Attorney, on brief
for respondent.
May 9, 2014
HOWARD, Circuit Judge. Petitioner Fritz Junior Donnee,
a native and citizen of Haiti, seeks review of a decision by the
Board of Immigration Appeals (BIA), which dismissed his appeal of
an Immigration Judge's denial of his request to reopen removal
proceedings. Finding no error, we deny the petition.
I.
In 1995, Donnee was temporarily paroled into the United
States from Haiti for a period not to exceed two years. See 8
U.S.C. § 1182(d)(5) (authorizing temporary parole for urgent
humanitarian reasons or significant public benefit). Donnee
overstayed. In March 2009, after he had been charged with several
state criminal violations, the Department of Homeland Security
(DHS) served him with a Notice to Appear, charging him with
removability. Donnee admitted the allegations in the Notice and
conceded the charge of removability at an immigration court hearing
in July 2009. A few months later, he sought an adjustment of
status based on a petition for alien relative submitted by his
wife. After several continuances, a hearing was scheduled for
early December 2010. Neither Donnee nor his attorney appeared at
the hearing, and the Immigration Judge (IJ) ordered Donnee, in
absentia, removed to Haiti.
Through counsel, Donnee timely filed a motion to reopen
the proceedings. The ostensible basis for his motion was that DHS
had granted him Temporary Protected Status (TPS) on December 13,
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2010, and he was thus no longer removable and at a minimum his case
should be administratively closed.1 The IJ denied the motion,
observing that TPS "grants only temporary relief from removal and
does not make a recipient admissible." (citing Matter of Sosa
Ventura, 25 I & N Dec. 391, 392-93 (BIA 2010)). The IJ continued,
"Although the Respondent is protected from the execution of the
removal order while his registration in TPS is in effect, he
remains removable as charged. . . . Accordingly, the respondent's
receipt of TPS is not a material change justifying reopening his
case . . . ." The IJ also rejected Donnee's argument that his TPS
status warranted reopening the case so that the proceedings could
be administratively terminated. (citing Matter of Sosa Ventura, 25
I & N Dec. at 396). The BIA dismissed Donnee's subsequent appeal,
employing the same rationale that the IJ had.
II.
A "denial of a motion to reopen will be upheld 'unless
the complaining party can show that the BIA committed an error of
law or exercised its judgment in an arbitrary, capricious, or
irrational way.'" Tawadrous v. Holder, 565 F.3d 35, 38 (1st Cir.
2009) (quoting Tandayu v. Mukasey, 521 F.3d 97, 100 (1st Cir.
1
In January 2010, pursuant to 8 U.S.C. § 1254a, the Secretary
of Homeland Security designated Haiti for TPS following a serious
earthquake. 75 Fed. Reg. 3476-02 (January 21, 2010). After being
extended several times, that status is currently scheduled to
expire on January 22, 2016. See Extension of the Designation of
Haiti for Temporary Protected Status, 79 Fed. Reg. 11808 (March 3,
2014).
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2008)). In conducting this review, we accept the BIA's findings of
fact, "as long as they are supported by substantial evidence," and
we review legal conclusions de novo. Smith v. Holder, 627 F.3d
427, 433 (1st Cir. 2010). Withal, "[m]otions to reopen removal
proceedings are disfavored as contrary to 'the compelling public
interests in finality and the expeditious processing of
proceedings.'" Guerrero-Santana v. Gonzalez, 499 F.3d 90, 92 (1st
Cir. 2007) (quoting Raza v. Gonzalez, 484 F.3d 125, 127 (1st Cir.
2007)).
Donnee argues that the BIA committed legal error when it
refused to reopen his removal proceedings so that they could be
administratively closed based on his grant of TPS. An applicant
seeking to reopen proceedings must demonstrate a prima facie case
of eligibility for the relief sought by introducing material
evidence that was unavailable at the prior hearing. Jutus v.
Holder, 723 F.3d 105, 110 (1st Cir. 2013). Here, although Donnee
did not receive his TPS notice until after the hearing (which he
did not attend), the BIA correctly ruled that TPS only served to
prevent execution of the removal order in any event; it did not
affect the validity of the order. See Guerrero v. Holder, 667 F.3d
74, 79 n.6 (1st Cir. 2012) ("Although TPS does not preclude the
initiation of deportation proceedings or the entry of an order of
removal, it does prohibit such an order from being executed during
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the pendency of the designation."). That ends the matter. As we
find no error, the petition for review is denied.2
2
Donnee argues, in part, that the BIA may have improperly
required him to first show an entitlement to recission of the in
absentia order before he would be eligible to have his case
reopened. We discern no such requirement in the BIA order, either
explicit or implied.
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