610 F.3d 303 (5th Cir. 2010), 09-60074, Ogunfuye v. Holder

Docket Nº:09-60074.
Citation:610 F.3d 303
Opinion Judge:EDITH BROWN CLEMENT, Circuit Judge:
Party Name:Juliana Adenike OGUNFUYE, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
Attorney:Lawrence Erik Rushton (argued), Rushton Law Firm, Bellaire, TX, for Petitioner. Elizabeth D. Kurlan, Trial Atty. (argued), Tangerlia Cox, Thomas Ward Hussey, Blair O'Connor, Asst. Dir., Luis Enrique Perez, Sr. Lit. Counsel, U.S. Dept. of Justice, Civ. Div., OIL, Washington, DC, Sandra M. Heathman...
Judge Panel:Before GARWOOD, STEWART and CLEMENT, Circuit Judges.
Case Date:June 28, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
FREE EXCERPT

Page 303

610 F.3d 303 (5th Cir. 2010)

Juliana Adenike OGUNFUYE, Petitioner,

v.

Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 09-60074.

United States Court of Appeals, Fifth Circuit.

June 28, 2010

Page 304

Lawrence Erik Rushton (argued), Rushton Law Firm, Bellaire, TX, for Petitioner.

Elizabeth D. Kurlan, Trial Atty. (argued), Tangerlia Cox, Thomas Ward Hussey, Blair O'Connor, Asst. Dir., Luis Enrique Perez, Sr. Lit. Counsel, U.S. Dept. of Justice, Civ. Div., OIL, Washington, DC, Sandra M. Heathman, U.S. Citizenship & Imm. Services, Houston, TX, for Holder.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before GARWOOD, STEWART and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Juliana Adenike Ogunfuye petitions for review of a final order of removal entered by the Board of Immigration Appeals (" BIA" ). The BIA's order affirmed the Immigration Judge's (" IJ" ) decision to deny her motion for a continuance and dismiss Ogunfuye's claims for relief from removal as abandoned because she failed to supply biometric information in compliance with the IJ's order. On appeal, Ogunfuye argues that the IJ did not give her proper notice that she needed to submit biometrics as required by 8 C.F.R. § 1003.47(d). She asserts that the lack of notice resulted in the dismissal of her applications for relief in violation of her due process rights. She further contends that the IJ erred by not granting her a continuance to submit biometrics. Finally, Ogunfuye

Page 305

argues that the IJ erroneously determined that it could not make a prima facie adjudication of her naturalization eligibility. We affirm.

FACTS AND PROCEEDINGS

Ogunfuye, a Nigerian citizen and lawful permanent resident of the United States, was found to be removable on account of her theft and forgery convictions, which the IJ determined to be aggravated felonies. The IJ granted her several continuances to seek various forms of relief from removal, including withholding of removal, waiver of inadmissibility, and termination of removal proceedings due to prima facie eligibility for naturalization. The proceedings were drawn out over three years and ten immigration court hearings. 1 At two of these hearings, the presiding IJ determined that it did not have authority to adjudicate whether Ogunfuye was prima facie eligible for naturalization. During her penultimate hearing, when Ogunfuye was present in court, the IJ asked whether Ogunfuye needed to submit fingerprints to the Department of Homeland Security (" DHS" ) and Ogunfuye's counsel answered affirmatively. In a subsequent written order granting Ogunfuye's request for a continuance, dated March 26, 2007, the IJ directed Ogunfuye to submit current fingerprints on pain of dismissal and indicated that no further continuances would be granted.2

At her final hearing, Ogunfuye's counsel conceded that Ogunfuye had not submitted biometrics in compliance with the IJ's order. Counsel attributed the failure to submit biometrics to an " office mistake" where she " had to let someone go for not following up on things as they should've been." Counsel explained that she did not realize that Ogunfuye's biometrics had not been submitted because the " files are so big." Ogunfuye requested a continuance to obtain biometrics, which the IJ denied. The IJ then dismissed Ogunfuye's applications for relief as abandoned because Ogunfuye had not shown good cause for her failure to comply with the IJ's order. See 8 C.F.R. § 1003.47(d). The BIA affirmed.

...

To continue reading

FREE SIGN UP