Friday, March 26, 2010

Establishing good cause for a continuance of proceedings-7th Cir. 2010

Juarez v. Holder, No. 08-1788: Denial of Motion to Reopen/Noncompliance with Biometrics Requirements

Juarez v. Holder (Sykes) 
Oral Argument | Full Text

Petition for review BIA's decision that petitioners' untimely applications and failure to provide the required biometrics meant they had abandoned their applications for relief is denied where: 1) the petitioners were given ample time to file their applications for relief and provide biometrics and did not have good cause for their delay; and 2) the IJ did not abuse his discretion in denying their motion for a continuance; and 3) IJ did not abuse his discretion in denying their requests for relief because of their failure to comply with these application prerequisites.

Bd. did not err in affirming IJ's removal order after IJ found that aliens' applications seeking relief from removal were untimely since they were filed 14 months after deadline set forth by IJ and lacked required set of fingerprints. Applicable regulatory scheme (8 CFR section 1003.31(c)) permits IJs to set time limits for filing applications seeking relief from removal, and instant failure by aliens to file timely applications or supply required fingerprints within deadline constituted waiver of applications. Fact that one alien's asylum application had been filed prior to April 1, 2005 effective date of instant regulations was irrelevant.

The petitioners are a mother and son from Guatemala who entered the U.S. illegally in 1989 and 1997, respectively. The mother filed for asylum after her arrival, but the immigration authorities did not adjudicate the application. Removal proceedings were commenced against both petitioners in 2004, and they conceded the charges. The lead respondent, Ms. Juarez, advised the IJ that she intended to file for cancellation of removal and to pursue her asylum application filed in 1990. Her son expressed an intention to file his own asylum application as he was not considered a derivative on his mother's case. The petitioners' attorney advised the IJ that he required 60 days to file the applications. The IJ approved this request and set the filing date for September 26, 2005, with the individual hearing date set for November 13, 2006. The IJ informed both petitioners that they needed to provide fingerprint and biographical information before the date of the next hearing in order to be eligible for relief. Indeed, the IJ addressed the petitioners individually and instructed them both to “pester your attorney” to get the fingerprints submitted on time. Their attorney acknowledged his familiarity with the biometrics procedures and said that he understood that the process could take some time. The applications were not filed within the time set by the IJ nor did the petitioners comply with the biometrics requirements. Less than a week before the November 2006 hearing, they filed motions asking for a continuance. Their attorney advised the IJ that the applications had been filed, but he had not yet received official confirmation in order to arrange the fingerprinting appointment. Counsel admitted that he had been unable to devote adequate time to preparing his clients' cases.

The IJ denied the continuance motion, reasoning that good cause had not been shown. The asylum application actually arrived at the court five days before the individual hearing date and the cancellation application arrived on the hearing date, but after the hearing had been concluded. As pointed out by the circuit court, the applications were filed 14 months late. Although conceding that good cause was absent, petitioners' counsel argued before the IJ that his clients should not be penalized for missing the court's deadlines when the immigration authorities had not acted on the lead petitioner's asylum application for more than a decade. The IJ agreed with DHS counsel that the petitioners had abandoned their claims by failing to submit fingerprints or timely filing their relief applications, and consequently ordered their removal. An appeal was filed with the BIA, but the petitioners' attorney failed to file a brief. Finding the IJ's decision to be valid, the Board dismissed the appeal.

The circuit court explained that, in light of the Supreme Court's decision in Kucana v. Holder, 130 S. Ct. 827 (2010) (holding that the courts have jurisdiction to review denials of motions to reopen), its review in regard to the denial of the continuance was plenary, thus retreating from its prior decision in Iqbal Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007), which held that the court lacked jurisdiction over such a matter. The court cited to the applicable regulation--8 CFR § 1003.31(c)--authorizing IJ's to set and extend time limits for filing of applications and related documents, and providing that if an application is not filed within the time period it shall be deemed to be waived. It also cited to 8 CFR § 1003.47(c), providing that an alien's failure to comply with processing requirements for biometrics and other biographic information within the time allowed will result in dismissal of the application, unless the applicant demonstrates that such failure was the result of good cause. It also referred to 8 CFR § 1003.29, which provides that an IJ may grant a motion for continuance for good cause shown.

The court concluded that the IJ was well within his discretion in denying the petitioners' continuance motion and their requests for relief from removal as well. It rejected the petitioners' contention that 8 CFR § 1003.47 (the biometric regulation) is ultra vires, pointing out that by statute the Attorney General (AG) is prohibited from granting asylum to any applicant until his or her identity is checked against all appropriate records or databases to determine any ground on which the alien may be inadmissible or deportable from the U.S. or ineligible to apply for or be granted asylum, citing to INA § 208(d)(5)(A)(i) [8 USCA § 1158(d)(5)(A)(i)]. The court declared that the 60 days provided to file was “plenty of time.” The court also ruled that the government's delay in the matter was not a relevant factor, citing to Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) (decision when to initiate removal proceedings is in the discretion of immigration authorities). The court observed that the petitioners had been represented by the same attorney throughout the proceedings so there was no claim for ineffective assistance of counsel; however, the court directed the court clerk to transmit a copy of the opinion to the Arkansas Committee on Professional Conduct and the Department of Justice's Executive Office for Immigration Review.

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