Uriostegui, Margarit v. Gonzales, Alberto R.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3748
MARGARITA URIOSTEGUI,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of a Decision
of the Board of Immigration Appeals.
No. A70-560-275
____________
ARGUED OCTOBER 5, 2004—DECIDED JULY 15, 2005
____________
Before POSNER, KANNE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Margarita Uriostegui, a 32-year-old
Mexican national, entered the United States illegally before
the end of 1990. The following year, her father, who was
lawfully in the United States, applied on her behalf for an
immigrant visa then available to unmarried children of
lawful permanent residents. Years passed. Finally, in July
2000, while Uriostegui continued to wait for the final word
on her 1991 visa application, the then-INS commenced
removal proceedings. Uriostegui was scheduled to appear at
2 No. 03-3748
two master hearings in 2001, but she obtained continuances
both times. She failed to appear at the third scheduled
hearing, however, which was set for June 2002, and the
Immigration Judge (IJ) accordingly entered an in absentia
removal order.
The judge later denied her timely motion to reopen, and
she appealed that decision to the Board of Immigration
Appeals (BIA). While the appeal was pending, she filed an
original motion with the BIA asking that her case be re-
manded to an IJ so that new evidence could be considered.
The BIA summarily affirmed the IJ’s decision denying her
motion to reopen, without adding any reference to her sep-
arate motion to remand. Uriostegui now petitions this court
for review. Although we conclude that the BIA acted within
its discretion to reject her motion to reopen, we have no way
of reviewing on this record the agency’s disposition (if there
was one) of her motion to remand. We therefore grant her
petition to that limited extent and return this matter to the
BIA for further proceedings.
I
Uriostegui was born in Mexico in December 1972, but she
has been living in the United States ever since she entered
without inspection some time before the end of 1990. (On
her immigration documents, she has given the year of entry
as both 1988 and 1990. It seems that she may have re-
turned to Mexico briefly in 1989 and then re-entered the
United States for good in 1990. The precise date makes no
difference for our purposes.) Her parents also made their
way to the United States. Her father, Alvaro Uriostegui,
received lawful permanent resident status in December
1990, and her mother, Francisca Uriostegui, did so in
August 1996.
Uriostegui herself attempted to follow in her father’s
footsteps. In October 1991, her father applied on her behalf
No. 03-3748 3
for an immigrant visa that would allow her, as his unmar-
ried child, to take advantage of his legal status. INS cor-
respondence identifies Uriostegui’s preference category as
“LB” (child of a legalization beneficiary) in early 1992, and
as “F2B” (unmarried child of a permanent resident) in late
1999. It seems, therefore, that she was not making any
effort to keep her presence in the United States a secret
from the authorities.
Nothing much seems to have happened with
Mr. Uriostegui’s application between 1991 and 1999. In
February 1999, however, Uriostegui rocked the boat by
applying for a change in status. It is difficult to discern the
basis for her request from the nearly illegible application
copy in the record, but it seems that she checked a box
indicating “married” on the form and that she stated that
she had two children, one born in 1992 and the other in
1993. This application was denied in September 1999, and
that action prompted the INS in July 2000 to send
Uriostegui a Notice to Appear formally initiating removal
proceedings, on the ground that she was an alien “present
in the United States without being admitted or paroled.”
See Immigration and Nationality Act (INA) § 212(a)(6)
(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i).
Uriostegui received notice by mail of her first master
hearing, which was scheduled for April 4, 2001. She ap-
parently attended that hearing, and the IJ granted her a
continuance to October 3, 2001. Her counsel then filed a
“Motion to Extend Filing Date of Adjustment of Status
Application,” which requested a continuance of the October
hearing to give Uriostegui “time to file her application for
adjustment status based on an approved I-130 with a pri-
ority date of 10/31/91.” Counsel later received notice, again
by mail, that the October hearing was rescheduled for
December 19, 2001. Uriostegui appeared at that hearing
and received another continuance; her lawyer was per-
sonally served at that time with a new Notice to Appear
4 No. 03-3748
instructing Uriostegui that her hearing date was June 12,
2002. The record does not reveal whether Uriostegui herself
received personal service of that notice. Boilerplate in the
Notice to Appear indicates that she would have been told
about its contents orally in Spanish, her native language.
June 12 arrived, but Uriostegui did not show up at the
hearing. Ready to resolve the case, the IJ entered an in
absentia order of removal, designating Mexico as the coun-
try of removal. See INA § 240(b)(5)(A); 8 U.S.C.
§ 1229a(b)(5)(A).
Immediately after the removal order was entered,
Uriostegui began the process of trying to undo its effects. In
July 2002, she timely filed a “Motion to Vacate In Abstentia
[sic] Order of Removal” with the IJ. She did not dispute the
fact that she had been notified orally, in Spanish, about the
June 12 hearing date. Instead, she asserted that she had
misheard the word “junio” (June, in Spanish) and thought
that the speaker had said “julio” (July). She did not claim,
however, that her lawyer had failed to give her the written
notice of the June hearing date.
At almost the same time, on June 24, 2002, Uriostegui
filed an “Application for Cancellation of Removal and
Adjustment of Status” with the Executive Office for Immi-
gration Review, which is the component of the Department
of Justice that encompasses the BIA and immigration court.
See Balogun v. Ashcroft, 374 F.3d 492, 494 n.1 (7th Cir.
2004). The application claims that Uriostegui’s removal to
Mexico will “result in exceptional and extremely unusual
hardship” to her parents and children. The only reason for
this assertion was that her children would not return with
her to Mexico. As Uriostegui put it, “[m]y children are U.S.
Citizens. They can receive better education and health care
in here, than in a place that I may be deprted [sic] to.” The
record does not disclose what happened to this application.
The IJ decided to treat Uriostegui’s motion to vacate as a
motion to reopen the proceedings. On that assumption, he
No. 03-3748 5
denied it. Uriostegui’s “misunderstanding of the date of her
final hearing,” he concluded, did not amount to the excep-
tional circumstances required to justify reopening her case.
See INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i).
Uriostegui filed an appeal to the BIA in October 2002 from
the IJ’s order denying her motion to reopen; she did not
appeal from the order of removal itself. In March 2003,
while the appeal was pending, she also presented a motion
to the BIA seeking a remand to the IJ on the ground of new
evidence. She was referring to the fact that after her
removal order was entered, the State Department had an-
nounced that it was still processing F2B visas with priority
dates both before and after hers (which, recall, was in
1991). She interpreted the State Department’s public an-
nouncements as indicating that her application would have
been processed, if not for the IJ’s removal order, and thus
that she should be eligible for a change in status to lawful
permanent resident. We do not know what the BIA thought
of these particular arguments. It resolved Uriostegui’s
appeal with an order stating, “The Board affirms, without
opinion, the results of the decision below. The decision is,
therefore, the final agency determination. See 8 C.F.R.
§ 1003.1(3)(4).” It made no reference to the separate motion
to remand that was before it.
II
Before this court, Uriostegui argues that the BIA erred by
refusing to find that her misunderstanding of the month in
which her hearing was to occur was not an exceptional
circumstance that excused her failure to appear on June 12,
2002, by failing explicitly to address her motion to remand,
and by implicitly holding that her evidence indicating that
her priority date was still valid was not “new.” We address
these points in turn.
6 No. 03-3748
A
Because the BIA used its summary “affirm[ance] without
opinion” procedure, we review the IJ’s decision directly.
Vladimirova v. Ashcroft, 377 F.3d 690, 695 (7th Cir. 2004).
We review a decision not to reopen the proceedings for
abuse of discretion. Ursachi v. INS, 296 F.3d 592, 594 (7th
Cir. 2002). When the alien is trying to reopen a removal
order issued in absentia, three issues are relevant: (1) the
validity of the notice provided to the alien; (2) the reasons
for the alien’s failure to attend the proceedings; and (3)
whether the alien is removable. 8 U.S.C. § 1229a(b)(5)(D);
see Nazarova v. INS, 171 F.3d 478, 482 (7th Cir. 1999).
Uriostegui has focused on the second issue; she argues that
her misunderstanding of the date conveyed to her by the
Spanish interpreter entitles her to reopen her case.
We assume, for purposes of this opinion, that Uriostegui
really did mishear the name of the month uttered by the
interpreter. Even so, this mistake falls short of the excep-
tional circumstances that have excused nonappearance in
other cases. It is nowhere near the illustrative examples
given in the statute, which include serious illness of the
alien, serious illness or death of a spouse, child, or parent,
and other circumstances “not less compelling.” INA
§ 240(e)(1), 8 U.S.C. § 1229a(e)(1). See also Celis-Castellano
v. Ashcroft, 298 F.3d 888, 891-92 (9th Cir. 2002); Matter of
W-F-, 21 I.&N. Dec. 503, 509 (BIA 1996) (BIA uses totality
of the circumstances test for exceptional circumstances).
General claims of illness, even when supported by a doctor’s
note, have been found not to be sufficient. See Ursachi,
supra, 296 F.3d at 594. Car troubles—surely a perennial
issue—have also been rejected. Sharma v. INS, 89 F.3d 545,
547 (9th Cir. 1996).
Uriostegui has tried to equate her problem with the
severe interpretation dilemma faced by the petitioner in
Nazarova, supra. But in that case, the INS itself was partly
No. 03-3748 7
at fault for leading Nazarova to believe that she would have
an interpreter and then failing to live up to its word, and
Nazarova’s lateness was attributable to her efforts to
ensure that her hearing would be a meaningful one (that is,
one that would be comprehensible to her). Uriostegui’s case
is far different. She was represented by counsel, and there
is no hint that the lawyer was unaware of the correct date.
She knew that Spanish interpretation would be available,
because she had availed herself of that service all along.
Consequential as the error was for her, there is nothing
exceptional about it. She could have double-checked the
date after the hearing when it was set, or she could have
left instructions with her attorney to call her a day or two
before the hearing to make sure that all necessary prepara-
tions were in place. Even if it might have been within the
IJ’s discretion to grant her motion to reopen, it was not an
abuse to deny it on this basis.
B
More troubling is the BIA’s failure to acknowledge the
motion to remand that was pending before it. For all anyone
knows, the BIA may not even have considered the motion,
which is separate from the appeal that was addressed in the
boilerplate summary affirmance order reciting the language
set forth in 8 C.F.R. § 1003.1(e)(4)(ii). Second, the BIA’s
failure to give any reason for (implicitly) rejecting the
motion may violate the BIA’s own procedures. Finally, the
BIA’s silence is in considerable tension with the agency’s
duty to support its judgment with a reasoned decision. See
Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000).
We recognize that our review of the BIA’s denial of a mo-
tion to remand is once again only for abuse of discretion.
See Boykov v. Ashcroft, 383 F.3d 526, 529-30 (7th Cir.
2004). The procedure for affirming IJ decisions without
opinion is not authorized in so many words for cases in
which an original motion to reopen filed directly with the
8 No. 03-3748
BIA has been consolidated with an existing appeal. See 8
C.F.R. § 1003.2(c)(4). The lawyer for the BIA skips over this
problem, suggesting instead either that we can presume
that the motion was necessarily denied or that we can find
that the error in failing to address it or discuss it was
harmless.
Our basic problem with counsel’s first suggestion—
that we consider the motion “necessarily denied”—is that
we have no evidence that the BIA gave it any thought at all.
The opinion of the IJ that the single Board member af-
firmed without opinion dealt with an entirely different set
of circumstances: the in absentia order, Uriostegui’s con-
fusion about “junio” and “julio,” and the hardship on her
children if the case was not reopened. Her motion to
remand, in contrast, focused on the 1991 priority date she
claimed from her father’s old F2B visa application, in which
he was trying to regularize her status because she was the
unmarried child of a permanent resident. Normally, we are
able to give meaningful review to the BIA’s summary
affirmances because we can discern the reasoning behind
the result from the IJ’s opinion. See Georgis v. Ashcroft, 328
F.3d 962, 967 (7th Cir. 2003). Here, to paraphrase Gertrude
Stein, there is no “there” there. We have absolutely no
findings of fact or conclusions of law from anyone connected
with the immigration agency (as opposed to counsel before
this court) to explain why Uriostegui’s motion to remand
was rejected. Under these circumstances, it is also impossi-
ble for us to know whether this is an appropriate place to
find harmless error. We note, finally, that it is not clear
from the BIA’s regulations whether a motion to remand is
the type of matter that may be resolved by a single member
of the Board rather than a three-member panel. We express
no opinion on this point, because we regard it as a matter
for the BIA to address in the first instance.
No. 03-3748 9
C
Uriostegui has also asked us to address the merits of her
motion to remand. It would inappropriate, however, for us
to do so. It is the BIA’s responsibility to evaluate new evi-
dence claims in the first instance, and it has considerable
discretion in that process. We have no idea, as things pres-
ently stand, whether Uriostegui is married or not, whether
she is eligible for this visa or not, what legal relevance her
initial priority date may continue to have for this purpose,
and so on. The BIA can resolve these questions and provide
a reasoned explanation for its ultimate decision. Some of
these matters may ultimately lie within the Board’s unre-
viewable discretion; others may implicate legal decisions. It
is simply too early for this court to act.
III
For these reasons, we DENY the petition for review from
the BIA’s order summarily affirming the denial of the
motion to reopen, but we GRANT the petition for review that
relates to the motion to remand that Uriostegui filed with
the BIA and we return this case to the BIA for further
proceedings.
10 No. 03-3748
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-15-05