Aponte v. Holder

Citation683 F.3d 6
Decision Date21 June 2012
Docket NumberNo. 11–1444.,11–1444.
PartiesYubelkys APONTE, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

OPINION TEXT STARTS HERE

Brian Monahan on brief for petitioner.

Tony West, Assistant Attorney General, Civil Division, David V. Bernal, Assistant Director, Office of Immigration Litigation, and Lindsay W. Zimliki, Attorney, Office of Immigration Litigation, on brief for respondent.

Before BOUDIN, Circuit Judge, SOUTER, Associate Justice,* and THOMPSON, Circuit Judge.

THOMPSON, Circuit Judge.

The case of Yubelkys Aponte is before this court for a second time. This go-around she petitions for review of a decision of the Board of Immigration Appeals (BIA) denying her request for a remand and dismissing her appeal from a final order of removal. Finding once again that the BIA failed to adequately address certain issues, we deny the petition in part, grant the petition in part, and remand.

BACKGROUND
i. Aponte's Arrival, Arrest, and Removal Charge

Yubelkys Aponte is a thirty-three year old native and citizen of the Dominican Republic. She was admitted to the United States as a Lawful Permanent Resident (LPR) on February 2, 1996. A few years later, in 1999, Aponte pled guilty to Criminal Possession of a Controlled Substance in the Fifth Degree in New York.

In the fall of 2003, Aponte came to the attention of the Department of Homeland Security (DHS) when she sought to reenter the United States at the Luis Muñoz Marin International Airport in San Juan, Puerto Rico. Shortly thereafter, on January 21, 2004, DHS served Aponte with a Notice to Appear. In it, DHS charged that Aponte was removable pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II) because she had been convicted of a controlled substance violation.

ii. The IJ Proceedings

Before the Immigration Judge (IJ), Aponte, who appeared with counsel, conceded removability. However, Aponte requested a continuance so that her counsel could attempt to have her criminal conviction expunged. The IJ accommodated this and additional requests and ultimately three years of continuances followed. Aponte did not succeed in obtaining the expungement and, on June 4, 2007, the IJ called a stop to things and ordered Aponte removed.

iii. The BIA Appeal

Aponte timely appealed the IJ's decision to the BIA.1 Though she indicated no reason for the appeal, she noted that a brief would follow. A few months later, the BIA mailed a briefing schedule to Aponte's then counsel. The briefing schedule was mailed to the correct attorney, at the correct street address; however, it omitted the firm name (Ross & Associates), which Aponte's counsel had listed on her entry of appearance. No brief from Aponte followed and so on November 18, 2008, the BIA summarily dismissed her appeal. In response, Aponte's counsel (new attorney, same firm) filed a motion to reopen the removal proceedings, arguing that neither she nor Aponte received timely notice of the briefing schedule and that the BIA's failure to include the firm name in the mailing address constituted inadequate notice. The BIA denied the motion to reopen finding insufficient information to establish inadequate notice. Aponte petitioned this court for review.

iv. The First Court of Appeals Petition

On June 18, 2010, we granted Aponte's petition. See Aponte v. Holder, 610 F.3d 1, 2 (1st Cir.2010)( Aponte I ). We held that the BIA abused its discretion by denying Aponte's motion to reopen in an inadequately reasoned decision—namely, the BIA failed to sufficiently dispose of the critical issue of whether Aponte was entitled to have her proceedings reopened based on inadequate notice of the briefing schedule. See id. at 5. The particulars of the BIA's shortcoming in denying the motionto reopen included the absence of meaningful analysis, a failure to apply clear precedent, and misplaced findings. See id. The solution: we remanded the case for the BIA to provide Aponte with the opportunity to file a renewed motion to reopen and to decide that motion in accordance with our opinion. See id. at 7. The remand came with some caveats to Aponte. First, we noted that Aponte's evidence that the briefing schedule was not timely received-an affidavit completed by her attorney—was barely sufficient and the issue needed clarification. See id. Second, we pointed out that should the BIA decide to reopen, Aponte's ultimate “likelihood of succeeding on the merits might well be negligible” as by all accounts she was having difficulty getting her conviction expunged. Id.

v. The BIA Remand

With Aponte's case before it again, the BIA, in accordance with our decision, allowed Aponte to file a new motion to reopen. In the new motion, Aponte diversified her approach. Her first argument was familiar. Aponte again argued that deficient notice of the briefing schedule meant that proceedings should be reopened so she could properly brief the merits of her appeal regarding removal. In support, and presumably in response to the concerns we expressed about the first affidavit, Aponte's counsel submitted a new affidavit clarifying that neither she nor Aponte had any knowledge that a briefing schedule had been issued until they received the BIA's dismissal of the case.

Aponte then advanced a second and new argument. She claimed that proceedings should be reopened, and her case remanded, because the attorney who represented her before the IJ provided ineffective assistance. According to Aponte, she only discovered her former attorney's supposedly incompetent representation when her current attorney reviewed the transcripts of the 2004 to 2007 IJ hearings. Aponte says this review occurred during the pendency of her previous petition to this court. The gravamen of Aponte's complaint with counsel's performance is that at the time she conceded removability he did not request relief that she claims she is prima facie eligible for—cancellation of removal, asylum, withholding of removal, and protection under the United Nations Convention Against Torture (CAT). Aponte claimed she was a candidate for cancellation of removal because she had never been convicted of an aggravated felony, she was admitted for permanent residence for at least five years, and, with her father's residency in the United States imputed to her, she met the seven year continuous residency requirement. Aponte asserted that she was eligible for asylum, withholding, and CAT protection based on her fear of returning to the Dominican Republic due to her membership in the “social group” of women “considered to violate violently enforced gender norms.” And so Aponte requested that her case be reopened and remanded so that she could apply for these forms of relief.

The BIA took up Aponte's motion and issued a written decision on March 31, 2011. After briefly reciting the facts and procedural posture, the BIA indicated that it was reopening proceedings and vacating its previous orders. What the BIA's reasons for reopening were, we cannot say. Even though in Aponte I we suggested that the BIA might want to cast a critical eye on Aponte's notice deficiency arguments, it engaged in no analysis and simply granted the motion to reopen out of hand.

The BIA then proceeded to address the remand request and it reached the following conclusions. One, Aponte was not eligiblefor cancellation of removal because she did not establish seven years of continuous residence as she could not properly impute her father's residency. Two, Aponte did not show that she is prima facie eligible for asylum, withholding, or CAT protection (no reasoning shored up this finding; more on this later). And finally, three, Aponte could not establish ineffective assistance of counsel because she had not demonstrated a reasonable probability of prejudice. That is, the BIA concluded that even if Aponte's counsel had requested the relief from removal that she now seeks, the end result would have been the same because Aponte was not eligible for such relief. For these reasons the BIA denied Aponte's request for a remand to the IJ and dismissed her appeal.

vi. The Second Court of Appeals Petition

Aponte once again petitioned this court, this time seeking review of the BIA's March 31, 2011 order. In support of her petition, Aponte argues that the BIA's rulings were erroneous, that it abused its discretion in denying her request to remand without explanation, and that the lack of a remand infringed on her due process rights.2

STANDARD OF REVIEW

Aponte's motion below was styled as a motion to reopen with a request for a remand included in it. The BIA granted the motion to reopen without any analysis and focused on the request for a remand in its decision. Whether classified as a motion to reopen or a request for a remand, the “nomenclature does not affect the applicable legal framework.” Mariko v. Holder, 632 F.3d 1, 7 (1st Cir.2011). Because Aponte “seeks to have the BIA return an appealed case to the IJ for further proceedings based on newly available information,” we treat her quest for relief as a motion to reopen. Id.

We review the denial of a motion to reopen for abuse of discretion. See Chedid v. Holder, 573 F.3d 33, 36 (1st Cir.2009). We set aside the “decision only where it rests on an error of law or reflects arbitrary or capricious decision making.” Id. (internal quotation marks omitted). The BIA's legal conclusions are evaluated de novo, with deference given “to the BIA's reasonable interpretations of statutes and regulations falling within its purview.” Matos–Santana v. Holder, 660 F.3d 91, 93 (1st Cir.2011) (internal quotation marks omitted).

Our review is subject to an additional restriction, this one jurisdictional in nature. Because Aponte was found removable based on a conviction for a controlled substance violation, our review (as it was in Aponte I ) is limited to constitutional claims and questions of law. See8 U.S.C. § 1252(a)(2)(C)-(D); see also Larngar v. Holder, 562 F.3d...

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