Gonzalez-Veliz v. Garland

• Decision Date: 04 May 2021
• Docket Number: No. 19-72090,19-72090
• Citation: 996 F.3d 942
• Parties: Isabel GONZALEZ-VELIZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

996 F.3d 942

Isabel GONZALEZ-VELIZ, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 19-72090

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 2021 Pasadena, California

Filed May 4, 2021

Akram Abusharer (argued), Abushrarar & Associates, Anaheim, California, for Petitioner.

Claire L. Workman (argued), Senior Litigation Counsel; Keith I. McManus, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Eugene E. Siler,^* Andrew D. Hurwitz, and Daniel P. Collins, Circuit Judges.

SILER, Circuit Judge:

Isabel Gonzalez-Veliz claims that the Board of Immigration Appeals (BIA) erred in dismissing her appeal from an order of an Immigration Judge (IJ) finding her application for asylum, withholding of removal, and Convention Against Torture relief abandoned. Gonzalez-Veliz also argues that the IJ erred in denying two continuance requests, one for more time to obtain an attorney and one for more time to allow the submission of evidence helpful to her application. Finally, she contends that the IJ failed to act as a neutral arbiter. We deny her petition for review.

BACKGROUND

Gonzalez-Veliz, a native and citizen of Guatemala, entered the United States in New Mexico, on or about October 19, 2016. The next day she was served with a Notice to Appear charging her as removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i).¹

On June 28, 2017, Gonzalez-Veliz appeared pro se before an IJ for her initial removal hearing. During this hearing, the IJ informed Gonzalez-Veliz of her right to an attorney at her own expense. The IJ provided Gonzalez-Veliz with a "list of nonprofit agencies and some private attorneys who have indicated that they may be willing to take a case for free or reduced fee." The IJ told Gonzalez-Veliz to "[c]all those offices" and described other ways she could find an attorney, including asking around her church and local community. Continuing the case to give Gonzalez-Veliz an opportunity to locate counsel, the IJ told Gonzalez-Veliz to find an attorney "right away" because the IJ would proceed with her case at the next hearing if she did not have a good excuse for failing to secure counsel. Gonzalez-Veliz affirmatively indicated she understood.

On September 8, 2017, Gonzalez-Veliz appeared at her next scheduled hearing without counsel. Gonzalez-Veliz stated she "couldn't get an attorney" because she was "sick" with "a lot of headaches," but acknowledged that she had not seen a doctor. Gonzalez-Veliz also claimed that she was prevented from locating an attorney because she began looking for a job a week before the hearing; she admitted, however, that she had not even tried to contact an attorney. The IJ found that Gonzalez-Veliz had not established good cause for another continuance to find an attorney. The IJ then found Gonzalez-Veliz removable as charged.

The IJ engaged in a detailed discussion with Gonzalez-Veliz about filing an application for relief and the proof required for such an application, specifically mentioning the need for a declaration. The IJ told Gonzalez-Veliz that she needed to file her application by the next scheduled hearing, whether or not she had obtained counsel, or the application would be deemed abandoned absent a good excuse. Gonzalez-Veliz again affirmatively indicated that she understood.

On October 13, 2017, Gonzalez-Veliz appeared before the IJ, this time with counsel, and filed an application for asylum, withholding of removal, and Convention Against Torture protection. She did not submit the requisite declaration, but the IJ continued the case for a week to allow her to do so.

On October 20, 2017, Gonzalez-Veliz again appeared with counsel and submitted her declaration. The IJ then told Gonzalez-Veliz that she needed to submit biometrics before the merits hearing scheduled for February 8, 2018:

IJ: Okay, ma'am, you also have to get your biometrics taken. That is your fingerprints and your photographs, your hair color, eye color, et cetera. If you fail to get your biometrics done before the next hearing, I will find that you have abandoned your application and I will deny it without the hearing. Do you understand?

Gonzalez-Veliz: Yes.

IJ: The government is providing you with written instructions on the steps that you must take to get your biometrics done. Take those with you and immediately start following those instructions. If you fail to get your biometrics taken before the next hearing, again, I will find that you have abandoned your application. Do you understand?

Gonzalez-Veliz: Yes.

The biometrics instructions inform aliens that they must send three items to a particular address and that when the items are received the alien "will receive [a U.S. Citizenship and Immigration Services (USCIS)] receipt notice in the mail indicating that USCIS has received [the alien's] asylum application, and [a]n [Applicant Support Center (ASC)] notice for you, and separate [ASC] notices for each dependent included in [the alien's] application." The alien is instructed that if "you do not receive th[e ASC] notice in 3 weeks, call (800) 375-5283."

On January 16, 2018, Gonzalez-Veliz, through counsel, filed a motion for a continuance, explaining that she had not yet received requested police reports and court records needed to prove her removal relief case. The IJ denied the motion, finding that Gonzalez-Veliz "failed to show good cause or that she had not had sufficient [time] to obtain the evidence or to document her efforts to obtain the evidence."

On February 8, 2018, Gonzalez-Veliz appeared for the scheduled merits hearing. Her counsel, who allegedly was running late due to illness, did not appear at the scheduled hour. The IJ initially indicated that he would therefore continue the case for another year, but then engaged in a discussion with Gonzalez-Veliz:

IJ: The government attorney has told me that you have not gotten your fingerprints done. Why is that?

Gonzalez-Veliz: The evidence that I was asked for?

IJ: No, your fingerprints, your biometrics, your photographs, your fingerprints, like we told you to do on October 20th. Why haven't [you] gotten them done?

Gonzalez-Veliz: Well, to be honest, I am not really that aware of—familiar with it and my friend, the one that's guiding me, he works.

IJ: Ma'am, you sure are familiar with it. The government attorney handed you written instructions on the steps to take. I told you you needed to get the biometrics done. I told you that if they weren't done, I would deny your case. Why haven't they been done? Sheds a little more light on counsel's stomach ailments. Why haven't you gotten your fingerprints done, ma'am?

Gonzalez-Veliz: Is that the evidence that I was asked for from back in Guatemala?

IJ: No, ma'am. It is going and making an appointment to have your fingerprints and your photographs taken, following the instructions you were given at the last hearing. For about the 4th time, do you have any explanation why you have not done that?

Gonzalez-Veliz: Well, the truth is that, well, as I say, I really did not understand as to that I had to do that or how to do that.

IJ: Any other explanation?

Gonzalez-Veliz: Well, I would like to apologize because, well, truthfully, I speak Spanish. My attorney speaks English and I have—I am able to communicate with him very little.

IJ: Ma'am, do you have any other explanation for why you did not get your fingerprints done, as you were told to do?

Gonzalez-Veliz: No.

The IJ then decided to hear Gonzalez-Veliz's case instead of rescheduling. Once counsel arrived, the following exchange occurred:

IJ: All right, counsel. [The Department of Homeland Security (DHS)] informed the court when we were originally here that respondent didn't get printed.

Counsel for Gonzalez-Veliz: We filed—

IJ: I asked respondent about that and she said she didn't know how to do it. You've given me a document that is the instructions for submitting certain applications to immigration court. Attached to it and that's all it says and attached to it is part of a return receipt, certified mail. The—not the confirmation of receipt, the one that is sent. So do you have anything to show respondent actually got biometrics done?

Counsel for Gonzalez-Veliz: I do not have anything to show biometrics is done, judge. We use—we submitted the form, ... the copy of the first three pages of the application to the service center. We assumed that they would respond to us prior to the merits calendar.

IJ: Well, counsel, why isn't the return receipt that you get back that confirms proof of receipt attached?

Counsel for Gonzalez-Veliz: I don't know why we didn't receive it, judge, but that's—this is all I have and we did make that filing after the first—our first master hearing appearance.

IJ: Well, if that's the case, why didn't you get alarmed by the fact that no appointment came in and no return receipt came back?

Counsel for Gonzalez-Veliz: We were alarmed about it, judge, and we—

IJ: Then, why wasn't the process redone?

Counsel for Gonzalez-Veliz: Because we didn't have time to do that process by the time we saw that that was an issue. We—when we make these filings—

IJ: By the time you saw that was an issue, counsel—first of all, there's no zip code written on here. Why would that be considered properly submitted, then?

Counsel for Gonzalez-Veliz: Judge, I believe that—

IJ: There's no A-number on the document.

Counsel for Gonzalez-Veliz: Which document?

IJ: The document you submitted to me. How do I know what was sent?

Counsel for Gonzalez-Veliz: Judge, this is what they send. I'm giving you proof of that this is what we did and I'm giving you evidence of when we mailed it.

IJ: You did not—counsel, you haven't given me proof of anything. There's no return receipt here. There's nothing on this to indicate it was done in respondent's case. There's certainly nothing to show it was received. What does it take to get a return receipt back? A week?

Counsel for

...