Juarez v. Holder

• Decision Date: 12 March 2010
• Docket Number: No. 08-1789.,No. 08-1788,08-1788,08-1789.
• Citation: 599 F.3d 560
• Parties: Edgar JUAREZ and Esma JuarezMeono, Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

599 F.3d 560

Edgar JUAREZ and Esma JuarezMeono, Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 08-1788

No. 08-1789.

United States Court of Appeals Seventh Circuit.

Argued: Jan. 12, 2009.

Decided: March 12, 2010.

Roy Petty (argued), Attorney, Rogers AR, for Petitioners.

Gregory D. Mack, Norah Ascoli Sehwarz, Attorney, Department of Justice Civil Division, Immigration Litigation Washington, DC, for Respondent.

Before EASTERBROOK, Chief Judge and WILLIAMS and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Esma Juarez-Meono and her son Edgar Juarez are Guatemalan natives who entered this country illegally in 1989 and 1997, respectively. Juarez-Meono requested asylum shortly after arriving, but Juarez did not. When the Department of Homeland Security ("DHS") initiated removal proceedings against them in 2004 Juarez-Meono and Juarez told the immigration court they intended to file applications seeking various forms of relief from removal. Both filed their applications nearly 14 months late, however, and they never provided their biometrics—finger-prints and other identifying biographical information—despite being admonished by the immigration judge ("IJ") to "pester" their attorney about completing this necessary part of the application process. Juarez-Meono and Juarez later moved for a continuance so they could have more time to comply with this requirement. The IJ denied the motion and concluded that theiruntimely applications and failure to provide the required biometrics meant they had abandoned their applications for relief. The IJ entered orders of removal, and the Board of Immigration Appeals ("BIA") affirmed.

Juarez-Meono and Juarez petitioned this court for review. The Attorney General initially argued that our jurisdiction was barred by 8 U.S.C. § 1252(a)(2)(B)(ii), but that argument has been eliminated by the Supreme Court's recent decision in Kucana v. Holder, —U.S.—, 130 S.Ct. 827, — L.Ed.2d — (2010). Even so, the petitioners cannot prevail. They were given ample time to file their applications for relief and provide biometrics, and did not have good cause for their delay; the IJ did not abuse his discretion in denying their motion for a continuance. Nor was it an abuse of discretion to reject their requests for relief because of their failure to comply with these application prerequisites. We therefore deny the petitions for review.

I. Background

Juarez-Meono and Juarez, her 27-yearold son, are natives of Guatemala. They entered the United States illegally nearly a decade apart; Juarez-Meono arrived in 1989 and asked for asylum in 1990, while Juarez arrived in 1997. Immigration officials ignored Juarez-Meono's request for asylum for more than a decade. The DHS initiated removal proceedings against the pair in 2004.

At a hearing in immigration court on July 20, 2005, both Juarez-Meono and Juarez conceded the removal charges but told the IJ they planned to seek various forms of relief from removal. Juarez-Meono said she intended to apply for cancellation of removal in addition to pursuing her 1990 asylum application; Juarez said he planned to apply for asylum and withholding of removal.¹ When the IJ asked the petitioners' attorney how much time he wanted to file the applications for relief, the attorney requested 60 days. The IJ agreed, ordered the applications to be filed by September 26, 2005, and set November 13, 2006, as the date for the next hearing. The IJ told both petitioners they needed to provide fingerprints and biographical information before that hearing in order to be eligible for relief. See 8 U.S.C. § 1158(b)(1) (directing the Attorney General to establish procedures for asylum applications); id. § 1158(d)(1) (permitting the Attorney General to promulgate regulations requiring applicants to submit, among other things, fingerprints and a photograph); id § 1158(d)(5)(A)(i) (requiring the Attorney General to check the identity of all asylum applicants against relevant Justice and State Department databases to determine whether there are grounds for inadmissibility or ineligibility); 8 C.F.R. § 1003.47 (requiring applicants to submit fingerprints and biographical information before asylum application will be considered).

The record indicates that both JuarezMeono and Juarez were well aware of the relevant requirements. The DHS had served notice on both petitioners explaining the biometrics requirements, and the IJ addressed the petitioners personally and instructed them both to "pester your attorney" to get fingerprints submitted because they would not be eligible for relief unless they complied. Each petitioner acknowledged receiving these instructions.

The petitioners' attorney also acknowledged his familiarity with the biometrics procedures and said he understood the process could take some time.

The petitioners did not file their applications by the September 26, 2005 deadline. Nor did they comply with the biometrics requirements. Less than a week before the November 13, 2006 hearing, they filed motions asking for a continuance. Counsel advised the court that the applications had been mailed but he had not yet received a receipt confirming they had been filed, nor had he obtained an appointment for the petitioners to provide fingerprints. Counsel also claimed that he had "been unable to devote adequate time" to preparing the petitioners; cases. The IJ denied the continuance motions on the ground that no good cause had been shown for the lengthy delay. On November 8, 2006, Juarez's application for asylum arrived at the immigration court. Juarez-Meono's application arrived on the date of the petitioners' hearing—November 13, 2006—but after the hearing concluded. Both applications were almost 14 months late.

At the November 13 hearing, the DHS took the position that the petitioners had abandoned their claims for relief because they failed to submit fingerprints or timely file their applications for relief and had not shown good cause for the delay. See 8 C.F.R. § 1208.10 (application may be deemed abandoned for failure to comply with biometrics requirements unless good cause is shown); id. § 1003.31(c) (application deemed waived if not timely filed). The petitioners' attorney maintained, without corroboration, that he had mailed the applications and tried to make a finger print appointment for his clients in September 2006 and attributed the delay to a "failure of communication" between his office and the petitioners. He again asked for a continuance, but conceded that the petitioners lacked good cause. He argued that they should not be penalized for missing the court's deadlines when the immigration authorities had not acted on Juarez-Meono's asylum application for more than a decade.

The IJ agreed with the DHS that there was no good cause for a continuance and no valid explanation for either the untimely applications or the failure to comply with the biometrics requirements. The IJ held that the petitioners' failure to submit their fingerprints, coupled with the nearly 14-month delay in filing their applications, meant that they had abandoned their applications for relief.² The IJ entered orders of removal and denied Juarez's request for voluntary departure based on arrests for drunk driving and two other crimes. Juarez-Meono and Juarez appealed to the BIA, but their attorney never filed a brief in support of their appeals. The DHS asked for summary affirmance, and in separate orders entered on March 4 and 10, 2008, the BIA affirmed.

In Juarez-Meono's case the BIA summarily affirmed the IJ's decision deeming her applications abandoned based on her failure to submit fingerprints. The BIA also noted that she had not filed a brief on appeal, meaning the only argument before the appellate tribunal was the summary statement in her notice of appeal. In Juarez's case the BIA explained that under 8 C.F.R. § 1003.31(c), a failure to comply with the deadline for filing an applicationfor immigration relief may be deemed a waiver if no good cause is shown. Because Juarez gave no reason for his failure to timely file his asylum and withholding-ofremoval applications, and also had not submitted fingerprints, the BIA dismissed the appeal. Both Juarez-Meono and Juarez petitioned this court for review, and we consolidated their petitions.

II. Discussion

When, as in Juarez-Meono's case, the BIA summarily affirms the IJ's decision, we review the IJ's decision.³ Tabaku v. Gonzales, 425 F.3d 417, 421 (7th Cir.2005). When, as in Juarez's case, the BIA agrees with the IJ's decision but supplements the IJ's decision with its own explanation for rejecting the appeal, we review the IJ's decision as supplemented by the BIA's reasoning. Niam v. Ashcroft, 354 F.3d 652, 655-56 (7th Cir.2004).

Initially, a threshold issue in this case had been the scope of our jurisdiction. This question turned on the applicability and operation of one of the jurisdictionstripping provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA")—8 U.S.C § 1252(a)(2)(B)(ii). That section of the Immigration and Nationality Act ("INA") provides that no court shall have jurisdiction to review any action of the Attorney General "the authority for which is specified under this subchapter to be in the discretion of the Attorney General." Id. We have held that this provision blocks our jurisdiction to review discretionary immigration-agency decisions where the discretion is conferred by regulation—including denials of reopening, Kucana v. Mukasey, 533 F.3d 534, 536 (7th Cir.2008), and denials of continuances, Ali v. Gonzales, 502 F.3d 659 (7th Cir.2007), both of which are agency decisions made discretionary by regulation.

The Supreme Court recently rejected our interpretation of § 1252(a)(2)(B)(ii) and reversed our decision in Kucana. See Kucana v. Holder — U.S.—, 130 S.Ct. 827, — L.Ed.2d — (2010). The Court held that § 1252(a)(2)(B)(ii) applies only to agency...