Suarez-Diaz v. Holder, 043014 FED6, 13-3605

Docket Nº:13-3605
Opinion Judge:BERNICE BOUIE DONALD, Circuit Judge.
Party Name:Julio Anastacio Suarez-Diaz, Petitioner, v. Eric H. Holder, Jr., Respondent.
Attorney:George P. Mann, Maris J. Liss, GEORGE P. MANN AND ASSOCIATES, Farmington Hills, Michigan, for Petitioner. Richard Zanfardino, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Judge Panel:Before: DAUGHTREY, McKEAGUE, and DONALD, Circuit Judges.
Case Date:April 30, 2014
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Julio Anastacio Suarez-Diaz, Petitioner,

v.

Eric H. Holder, Jr., Respondent.

No. 13-3605

United States Court of Appeals, Sixth Circuit

April 30, 2014 [*]

Upon Petition for Review of a Decision from the Board of Immigration Appeals. No. A024 792 754—No. A024 792 754.

COUNSEL

ON BRIEF:

George P. Mann, Maris J. Liss, GEORGE P. MANN AND ASSOCIATES, Farmington Hills, Michigan, for Petitioner.

Richard Zanfardino, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: DAUGHTREY, McKEAGUE, and DONALD, Circuit Judges.

OPINION

BERNICE BOUIE DONALD, Circuit Judge.

After his sixth request to postpone the removal proceedings against him was denied, Julio Anastacio Suarez-Diaz appealed the Immigration Judge ("IJ")'s order of removal to the Board of Immigration Appeals ("BIA"). He now petitions for judicial review of the BIA's subsequent dismissal of that appeal. For the reasons that follow, we DENY the petition.

I.

BACKGROUND

Suarez-Diaz is a native and citizen of Cuba. In 1980, he was paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(d)(5).1 In 1984, Suarez-Diaz was convicted of robbery, unlawful possession of a weapon, and receiving stolen property in New Jersey state court and received a combined sentence of ten years. Citing the convictions and his lack of an immigrant visa or other valid entry document, the Government initiated removal proceedings against Suarez-Diaz by serving him with a Notice to Appear in April of 2009.

On June 16, 2009, Suarez-Diaz appeared pro se before the Immigration Court in Detroit, Michigan. After being advised of the charges against him, he was granted a continuance to secure legal representation. On September 8, 2009, Suarez-Diaz returned to Immigration Court and, through counsel, conceded his removability on each of the grounds charged in the Notice to Appear. He then requested a second continuance, to apply for deferral of removal and to seek separate relief under the Cuban Adjustment Act. He advised the court that he would have the application to defer his removal prepared within sixty days. The IJ, Robert Newberry, granted Suarez-Diaz's request and continued the removal proceedings against him until November 15, 2010. He advised Suarez-Diaz, however, that failure to file his application within sixty days "w[ould] be deemed an abandonment."

Suarez-Diaz failed to file an application to defer his removal within the sixty days. In October of 2010, however, he filed a motion to continue the removal proceedings scheduled for November 15, citing "a conflict in [his] counsel's schedule." IJ Newberry denied the motion, noting that the removal proceedings already had been delayed for over a year.

On November 1, 2010, Suarez-Diaz finally filed an application to defer his removal, relying on the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("CAT"), Apr. 18, 1988, 108 Stat. 382, 1265 U.N.T.S. 85. He also filed a second motion to continue the November 15 removal proceedings, alleging that he had filed an application to change his citizenship status under the Cuban Adjustment Act that selfsame day and contending that the removal proceedings should be postponed "in the interests of judicial efficiency."2 Although the Government did not oppose the second motion to continue, IJ Newberry denied it two days later, noting in his order that Suarez-Diaz had not withdrawn his application for CAT relief.

Accordingly, on November 15, 2010, removal proceedings against Suarez-Diaz resumed as scheduled. IJ Newberry began by restating that he had denied Suarez-Diaz's second motion to continue because Suarez-Diaz's application for CAT relief remained pending. He then asked whether Suarez-Diaz wished to withdraw the application, to which Suarez-Diaz's counsel responded, "Yes, Your Honor." IJ Newberry also asked whether Suarez-Diaz's application to change his citizenship status under the Cuban Adjustment Act remained pending. Suarez-Diaz's counsel answered affirmatively and explained that he had filed the application late due to a mistaken belief that the court, rather than the United States Citizenship and Immigration Services ("CIS"), had jurisdiction over it.3

In light of counsel's representation that Suarez-Diaz wished to withdraw his CAT application, IJ Newberry asked whether the Government had any opposition to continuing the removal proceedings against Suarez-Diaz during the pendency of his Cuban Adjustment Act application. The Government responded that it would consent to a third continuance as long as the withdrawal of Suarez-Diaz's CAT application foreclosed future requests for CAT relief. (A.R. 131-32 ("As long as he understands its [sic] knowing and voluntary and its [sic] forever gone, then I don't have a problem with [a continuance], Your Honor.").) Through an interpreter, IJ Newberry then placed Suarez-Diaz under oath and explained the following:

Now, today, was the day that we had set to decide whether or not you could prove that it's more likely than not you would be tortured if you went back to Cuba today. Now, your lawyer has indicated that you would like to withdraw forever this [CAT] application for a deferral of removal so that you can attempt to get your green card through the CIS and the Cuban Adjustment. Do you understand?

Suarez-Diaz responded, "Yes. Yes." IJ Newberry also asked Suarez-Diaz, "Is that what you want to do?" Suarez-Diaz again replied, "Yes."

IJ Newberry next explained that there was no guarantee that Suarez-Diaz would obtain a green card under the Cuban Adjustment Act and admonished that, should his application fail, "the [c]ourt would be obligated to order that [he] be deported because there would be nothing else [he] could apply for before the [c]ourt." When asked whether he understood this possibility, Suarez-Diaz again replied, "Yes." IJ Newberry further explained that, although Suarez-Diaz's lawyer could advise him, "whether to withdraw th[e] [CAT] application or not" was Suarez-Diaz's decision. Suarez-Diaz responded, "In this case, here. Yes." The following exchange then ensued:

IJ NEWBERRY: So now you need to understand what you're doing and I have to be confident that your decision is a voluntary decision.

SUAREZ-DIAZ: Yes.

IJ NEWBERRY: So do you have any questions, sir?

SUAREZ-DIAZ: Nothing now.

IJ NEWBERRY: All right. Have you had enough time to talk to [your lawyer] about this?

SUAREZ-DIAZ...

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