Mejia-Velasquez v. Garland
| Decision Date | 15 February 2022 |
| Docket Number | No. 20-1628,No. 20-1192,20-1192 |
| Parties | Katherin Escarleth MEJIA-VELASQUEZ, a/k/a Katherin Esarleth Mejia-Velasquez, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. Katherin Escarleth Mejia-Velasquez, a/k/a Katherin Esarleth Mejia-Velasquez, Petitioner, v. Merrick B. Garland, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Evelyn Rose Griggs Smallwood, HATCH ROCKERS IMMIGRATION, Durham, North Carolina, for Petitioner. Rachel Louise Browning, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Jeffrey Bossert Clark, Acting Assistant Attorney General, Jessica E. Burns, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Before NIEMEYER, MOTZ, and RICHARDSON, Circuit Judges.
Decisions affirmed and petitions for review denied by published opinion. Judge Niemeyer wrote the opinion, in which Judge Richardson joined. Judge Motz wrote a dissenting opinion.
Katherin Mejia-Velasquez, a native and citizen of Honduras who entered the United States without inspection in February 2016, applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Because Mejia-Velasquez failed to produce biometrics (such as her photograph, fingerprints, and signature) in support of her application, after having been warned of the consequences of failing to do so, the immigration judge ("IJ") deemed her application abandoned pursuant to 8 C.F.R. §§ 1003.47(c) and 1208.10 and ordered her removed to Honduras. The Board of Immigration Appeals ("BIA") affirmed in a decision dismissing her appeal.
In her petition for review, Mejia-Velasquez contends that the BIA's decision should be vacated and her case remanded for consideration of her application on the merits. She argues mainly that she did not receive sufficient notice that she was required to provide biometrics, as specified in 8 C.F.R. § 1003.47(d), and that the BIA's decision upholding the notice given in this case relied on its erroneous decision in Matter of D-M-C-P- , 26 I. & N. Dec. 644 (BIA 2015), which misinterpreted the regulation by eclipsing a portion of its requirements. Spelling out the distinction between what the decision in Matter of D-M-C-P- held § 1003.47(d) to require and what the regulation actually requires, she argues that Matter of D-M-C-P- should be given no deference, noting that § 1003.47(d) is unambiguous and, in any event, the decision is not a reasonable interpretation of the regulation. See Kisor v. Wilkie , ––– U.S. ––––, 139 S. Ct. 2400, 2415–16, 204 L.Ed.2d 841 (2019). Therefore, she concludes, the BIA erred in relying on Matter of D-M-C-P- .
While we agree with Mejia-Velasquez that Matter of D-M-C-P- is not entitled to Kisor deference, we conclude that the record demonstrates that she received notice that substantially complied with the requirements of § 1003.47(d). Accordingly, we affirm the BIA's decision and deny her petition for review. We also deny her subsequent petition for review of the BIA's refusal to grant her motion for reconsideration of its decision.
After Mejia-Velasquez entered the United States without inspection, she filed an I-589 application for asylum, withholding of removal, and protection under CAT, claiming that she and other members of her family had been the victims of physical harm due to their membership in a particular Honduran political party, as well as their affiliation with a family member who was elected mayor of the family's hometown as a member of that same party.
On February 7, 2017, she appeared with counsel before an IJ in Charlotte, North Carolina, at a master calendar hearing. As typical of such hearings, the IJ confirmed preliminary matters contained in Mejia-Velasquez's application with Mejia-Velasquez and her counsel, conceding removability, designating Honduras as her destination in the event of removal, confirming Spanish as her "best language," and clarifying her address. The IJ also scheduled an "individual hearing" for March 12, 2018, and warned counsel that documents not submitted before 15 days of that date would be "deemed waived or abandoned." The IJ then said:
And, finally, [the Department of Homeland Security counsel] is serving your client with biometrics instructions. Make sure she has her fingerprints taken by the time of her individual hearing. If she doesn't have her fingerprints done and completed by that day, I'm going to — deny her application for lack of completeness. Do you understand that?
Mejia-Velasquez's counsel responded, "Yes, Your Honor." While the transcript of the hearing does not reflect it, the IJ also provided Mejia-Velasquez with a written notice entitled "Fingerprint Warning" that he regularly distributed to applicants and which Mejia-Velasquez does not dispute having received. The Fingerprint Warning provided:
Pursuant to the schedule established, Mejia-Velasquez (now represented by new counsel) appeared before the same IJ on March 12, 2018, for her individual hearing. When the IJ was informed that Mejia-Velasquez had not provided the DHS with her biometrics, the IJ sought confirmation of that fact from her counsel who, after consulting with Mejia-Velasquez, confirmed that the information was "accurate." The IJ then said:
On February 7th, 2017, I gave her a fingerprint warning and the Government served biometric instructions on her. Advised her that she was going to be required to take her fingerprint[s] — as part of her application process and, if she didn't, that, that would lead to an incomplete asylum application. That's a part of the asylum regulations.
When the government moved to pretermit Mejia-Velasquez's application for immigration relief because of her failure to provide biometrics, the IJ stated that he was going to grant the motion and would send out an order doing so. At the conclusion of the hearing, the IJ asked Mejia-Velasquez's counsel, "Is there anything else before we adjourn?" Counsel replied, "No, Your Honor."
On March 12, 2018, the IJ issued his order granting the government's motion to pretermit Mejia-Velasquez's application. He found that, during the February 7, 2017 master calendar hearing, Mejia-Velasquez had "received notice and instructions on how to submit her fingerprints and biometrics" and that she had also been advised, "through counsel, of the consequences for failure to comply" with those instructions by the relevant deadline. He found that Mejia-Velasquez "did not timely submit the required biometrics" and that she had not presented sufficient evidence that her failure to do so "was the result of good cause." As a consequence, he found that "no good cause exists for a continuance" of Mejia-Velasquez's proceedings. Accordingly, the IJ held that Mejia-Velasquez had, by virtue of 8 C.F.R. §§ 1003.47(c) and 1208.10, "abandoned her Form I-589 application" for relief and ordered that she be removed to Honduras.
On appeal to the BIA, Mejia-Velasquez challenged the IJ's order on the grounds that the IJ had erred in failing to "consider the reasons [for her] failure to submit her fingerprints" and to "give [her] an opportunity ... to explain herself." She claimed that she did, in fact, have a "good and legitimate cause" for not complying with the biometrics requirements — namely, that she was not properly informed of those requirements because the IJ did not direct the courtroom translator to translate into Spanish the relevant oral and written instructions. Nor did her previous counsel "tell her about the fingerprints and the consequences of not submitting them."
The BIA agreed with the IJ's conclusion that Mejia-Velasquez's failure to timely comply with the biometrics requirements "warrant[ed] a determination that [she] abandoned her application," and by an order dated January 22, 2020, it dismissed Mejia-Velasquez's appeal. Relying on its earlier interpretation of § 1003.47(c) and (d) in Matter of D-M-C-P- , the BIA concluded that Mejia-Velasquez "was provided adequate notice and instructions on how to submit her fingerprints and biometrics information and was specifically advised of the consequences of a failure to comply with such instructions by the established deadline." The BIA dismissed as "unavailing" her argument regarding the IJ's failure to provide for a Spanish translation of the biometrics instructions, reasoning that it was "incumbent upon [her] counsel" to ensure that she understood the instructions.
Following the BIA's decision, Mejia-Velasquez simultaneously filed a motion for reconsideration with the BIA and a petition for review in this court. In her motion for reconsideration, she identified three categories of error in the BIA's...
To continue reading
Request your trial