Kokar v. Gonzales

Decision Date01 March 2007
Docket NumberNo. 05-4641.,05-4641.
PartiesAnju KOKAR, Petitioner, v. Alberto R. GONZALES, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Bruce A. Coane (submitted), Coane & Choudhary, Houston, TX, for Petitioner.

Karen Lundgren, Department of Homeland Security Office of the Chief Counsel, Chicago, IL, Manuel A. Palau, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, RIPPLE and WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Anju Kokar was taken into custody by the Department of Homeland Security ("DHS") after overstaying her visitor's visa. Her applications for asylum, withholding of removal and relief under the Convention Against Torture were denied by an Immigration Judge ("IJ"). Ms. Kokar filed an appeal with the Board of Immigration Appeals ("BIA"), which summarily affirmed the IJ's decision. Ms. Kokar then sought further review in this court. For the reasons set forth in this opinion, we now affirm the decision of the Board and deny the petition for review.

I BACKGROUND
A. Facts

Ms. Kokar1 is a native of Bangkok, Thailand. In July 2001, she was admitted to the United States on a visitor's visa bearing a false name.

Prior to Ms. Kokar's coming to the United States, her mother had borrowed a large sum of money from loan sharks to pay for medical treatment for Ms. Kokar's stepfather. The family encountered difficulties repaying the debt, and Ms. Kokar explored the possibility of coming to the United States to earn the necessary funds. She obtained a passport from a broker; at the time she purchased the passport, the broker informed Ms. Kokar that she would have to work in the United States to repay the cost of the passport. Ms. Kokar believed that the cost of the passport was approximately $6,000.

Upon arrival in the United States, Ms. Kokar was informed that she owed $45,000 for her passport and travel costs and that she would have to work as a prostitute to repay these costs. She worked in several different cities until she was apprehended by the DHS in Houston, Texas. When Ms. Kokar was taken into custody, she was traveling to New York to make a payment towards her $45,000 "debt."

Since the time of her arrest, Ms. Kokar has been employed at a restaurant in Chicago, Illinois, which is owned by her boy-friend's mother. She has been sending approximately $300 per month back to Thailand. She does not know how much of these funds have been used to pay off the original loan and how much of these funds simply have been used by her mother and step-father for living expenses. At her removal proceeding, Ms. Kokar testified that "[s]he is afraid of [the loan sharks] and what they might do" if she were returned to Thailand.2 She also stated that she did not believe that the Thai police would assist her if she encountered problems with the loan sharks.

B. Administrative Proceedings

In her initial removal hearing, Ms. Kokar admitted that she had entered the country illegally, but sought asylum, withholding of removal and relief under the Convention Against Torture.3 The IJ found that Ms. Kokar had testified credibly to the above facts. However, the IJ denied relief because Ms. Kokar had failed to establish that she was a member of "a particular social group which would be cognizable under the Immigration and Nationality Act," specifically "disadvantaged women who are taken advantage of by the system in Thailand or by `loan sharks.'" A.R.21. Furthermore, the IJ determined that "she ha[d] not established that there exists a reasonable possibility of persecution on account of the group characteristics." Id. at 22. Additionally, the IJ found that Ms. Kokar's subjective fear of mistreatment at the hands of loan sharks was not objectively reasonable given that neither her mother, nor her other relatives, had been harmed or forced into prostitution as a result of the debt owed. Finally, the IJ denied Ms. Kokar's claims because she failed to establish that the government of Thailand would be unwilling or unable to protect her if she was threatened by the loan sharks.4

On November 9, 2004, Ms. Kokar's attorney filed a notice of appeal with the BIA. The notice of appeal instructed that the appellant "[s]tate in detail the reason(s) for this appeal." A.R.8. The notice also contained the following highlighted warning:

! WARNING: You must clearly explain the specific facts and law on which you base your appeal of the Immigration Judge's decision. The Board may summarily dismiss your appeal if it cannot tell from this Notice of Appeal, or any statements attached to the Notice of Appeal, why you are appealing.

Id. The stated basis for Ms. Kokar's appeal was: "While finding Respondent's testimony to be credible, IJ erred in denying her asylum by refusing to recognize her as a member of the protected social group of `victims of women traffiking [sic] for prostitution[]' under the U.S. asylum laws." Id.

On the same page of the notice, the form asked the appellant: "Do you intend to file a separate written brief or statement after filing this Notice of Appeal?" Id. Immediately beneath this question was another warning:

! WARNING: If you mark "Yes" in item # 8, you will be expected to file a written brief or statement after you receive the briefing schedule from the Board. The Board may summarily dismiss your appeal if you do not file a brief or statement within the time set in the briefing schedule.

Id.

The Board later sent the parties a briefing schedule dated July 26, 2005. The briefing schedule again warned Ms. Kokar that, if she failed to file a brief or statement within the time set by the briefing schedule, the appeal could be dismissed.5 However, no brief was filed on behalf of Ms. Kokar, nor did Ms. Kokar or her attorney submit a statement explaining their failure to do so.

The BIA summarily dismissed Ms. Kokar's appeal on November 30, 2005. In its opinion, the Board recounted that Ms. Kokar had checked the box indicating a separate brief or statement would be filed. "However," the Board continued, "the record indicates that the appellant did not file such brief or statement, or reasonably explain the failure to do so, within the time set for filing. Accordingly, the appeal is summarily dismissed under the provisions of 8 C.F.R. § 1003.1(d)(2)(i)(E)." A.R.2.

Ms. Kokar timely sought review in this court.

II ANALYSIS
A.

This court has not determined the standard of review which should be applied to summary dismissals by the BIA. Ms. Kokar points to Awe v. Ashcroft, 324 F.3d 509 (7th Cir.2003), for the proposition that "[t]his Court should review the summary dismissal to determine whether it is appropriate." Petitioner's Br. at 7. In Awe, this court observed that "[w]e do not see anything in the record here to suggest that the BIA inappropriately exercised its power in summarily dismissing Awe's appeal under § 3.1(d)(2)(i)(D),[6] and we therefore affirm its decision on these grounds." 324 F.3d at 513; see also Garcia-Cortez v. Ashcroft, 366 F.3d 749, 751 (9th Cir.2004) (reviewing summary dismissal for appropriateness). However, there is no discussion in the court's opinion regarding standard of review, nor is there any indication that the court meant for this statement to establish the standard to be applied.

The Government acknowledges the language in Awe, but correctly notes that Awe "did not expressly articulate" a standard of review. Respondent's Br. at 13. It urges this court to adopt the abuse of discretion standard employed by the Fifth Circuit in Rioja v. Ashcroft, 317 F.3d 514, 515 (5th Cir.2003), and more recently adopted by the Eleventh Circuit in Esponda v. United States Attorney General, 453 F.3d 1319, 1321 (11th Cir.2006). In Esponda, the court explained that "[b]ecause the regulation at issue here, 8 C.F.R. § 1003.1(d)(2)(i)(E), indicates that the BIA `may' summarily dismiss an appeal, it vests discretion in the BIA. Thus, we review the BIA's application of the regulation to summarily dismiss the Espondas' appeal for abuse of discretion." Id. at 1321.

The present appeal, however, does not require us to resolve the standard of review question because we perceive no error or abuse of discretion in the BIA's dismissal of Ms. Kokar's administrative appeal.

B.
1. This Court's Earlier Precedent

This court previously has addressed the BIA's dismissal of "procedurally defective" appeals. Awe, 324 F.3d at 512; see also Stroe v. INS, 256 F.3d 498, 499 (7th Cir. 2001). In Stroe, the petitioners, who were represented by counsel, appealed an adverse asylum decision to the BIA. Petitioners' counsel received an initial thirty-day extension to file a brief; however, counsel failed to file a brief on behalf of the petitioners until three months after the extended deadline. Prior to the BIA's receipt of the brief, it had dismissed the appeal on the ground that a brief had not been filed. Before this court, the petitioners argued that the Board had denied them "due process of law when it dismissed the appeal for failure to file a timely brief without having notified them of the possibility that dismissal might be a consequence of such a failure." Stroe, 256 F.3d at 499. We characterized this argument as "border[ing] on the frivolous":

The Board was under no duty, either constitutional or statutory, to send [counsel] periodic reminders. An appellant's failure to file a brief is a serious procedural default, and, at least when the appellant is represented by counsel . . . dismissal is an appropriate sanction.

Id.

We held similarly in Awe, 324 F.3d at 513. As in Stroe, the petitioner in Awe had received an adverse ruling from an IJ on his applications for asylum and withholding of deportation. Awe appealed to the BIA

by submitting a Notice of Appeal, Form EOIR-26, on which he checked the box indicating that he intended to file a separate written brief in support of his appeal. Also, in the space...

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