Moreta v. Holder

• Decision Date: 15 July 2013
• Docket Number: No. 12–1902.,12–1902.
• Citation: 723 F.3d 31
• Parties: Belkis Eunice MORETA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

723 F.3d 31

Belkis Eunice MORETA, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 12–1902.

United States Court of Appeals, First Circuit.

July 15, 2013.

Lidia M. Sanchez on brief for petitioner.

Drew C. Brinkman, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Stuart F. Delery, Principal Deputy Assistant Attorney General, and Anthony P. Nicastro, Senior Litigation Counsel, on brief for respondent.

Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Belkis Eunice Moreta, a native and citizen of the Dominican Republic, petitions for judicial review of the Board of Immigration Appeals's (“BIA”) affirmance of an Immigration Judge's (“IJ”) finding that she abandoned her applications for relief from removal by failing to file them in accordance with a court-ordered deadline. Because the IJ did not abuse her discretion by finding that Moreta had abandoned her applications for relief, the petition for review is denied.

I. Background

In 1994, Moreta was admitted to the United States as a permanent resident on a conditional basis based on her marriage to a U.S. citizen. That marriage later ended in divorce. Thereafter, Moreta filed a petition to remove the conditions on her residency. That petition was denied and her status as a conditional permanent resident was terminated.

On January 7, 2010, during the ensuing removal proceedings, Moreta—represented by counsel—appeared before an IJ and stated her intentions (1) to renew her petition to remove the conditions on her residency and (2) to apply for cancellation of removal. The IJ asked Moreta's counsel how much time was needed to prepare the necessary applications, and Moreta's counsel requested sixty days. The IJ consented and ordered Moreta to submit her applications by March 8, 2010.

The IJ also stated to Moreta, through a Spanish interpreter,

So, ma'am, your attorney has on your behalf admitted that you are removable as charged. She has indicated that you are pursuing the [petition to remove the conditions on residency], but also seeking cancellation of removal. So your applications are due to be filed with this Court by March 8th of this year. Updates are due by April 17th of 2011. And if you fail to return to court, there are serious consequences that I've advised you about previously. But you additionally do have to go through the biometrics process. If you fail to do that, I can deem that you're abandoning your applications. Do you understand all of that?

Moreta responded that she understood.

March 8 came and went without Moreta filing her applications. She eventually filed them on September 15, over six months past the deadline. Moreta did not file a motion for the IJ to accept the untimely submission. She made no updates to the applications in advance of the April 17, 2011 update deadline.

On May 17, 2011, Moreta appeared for her final hearing before the IJ. The IJ asked Moreta's counsel to explain why the applications for relief were filed over six months after the deadline. Moreta's counsel stated that Moreta was aware of the deadline—as she had been present at the prior hearing—but that she had not provided the information or fees necessary for her counsel to complete and submit the applications in a timely fashion.

The IJ denied Moreta's applications for relief on the ground that Moreta had abandoned them by failing to meet the filing deadline. The IJ noted that the applications were filed over six months after the deadline and that Moreta failed to explain why she did not file the applications in a timely manner. In the alternative, the IJ denied Moreta's applications for relief on the merits. The IJ found that Moreta failed to submit evidence to support claims essential to both her petition to remove the conditions on her residency and her application for cancellation of removal.

Moreta appealed the IJ's decision to the BIA, arguing that the IJ erred in (1) finding that Moreta had abandoned her applications for relief, and (2) denying those applications on the merits. The BIA dismissed the appeal and did not disturb the IJ's finding that Moreta had abandoned her applications for relief by failing to file them by the deadline. Because the BIA upheld the IJ's decision on the ground of abandonment, the BIA found it unnecessary to address the IJ's alternative findings denying Moreta's applications on the merits. Moreta now requests review of the BIA's decision.

II. Discussion

Moreta argues that we must grant her petition for review on the grounds that the BIA abused its discretion by (1) finding that she abandoned her applications for relief by failing to meet the filing deadline, and (2) refusing to consider all of her arguments on appeal. For the reasons that follow, neither of these asserted failings constitutes an abuse of discretion; and therefore we deny her petition for review.

A. Abandonment as a Result of Missing the Filing Deadline

Where, as here, the BIA adopts part of the IJ's decision, this court reviews the IJ's decision as adopted by the BIA. See, e.g., Uruci v. Holder, 558 F.3d 14, 18 (1st Cir.2009). And where, as here, an IJ denies an application for relief on the ground that the noncitizen abandoned the application by missing a filing deadline, the IJ's decision is reviewed for an abuse of discretion and should be reversed only if arbitrary or capricious. See, e.g., Gomez–Medina v. Holder, 687 F.3d 33, 37 (1st Cir.2012). We “step softly” when asked to set aside an IJ's sanction for a violation of a case-management order, because IJs—who are intimately familiar with the ebb and flow of the cases on their dockets—have first-line authority for case-management decisions. Cf. Torres v. Puerto Rico, 485 F.3d 5, 10 (1st Cir.2007); see also Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir.2006) ( “IJs are accorded wide latitude in calendar management, and we will not micromanage their scheduling decisions any more than when we review such decisions by district judges.”).

The regulations governing removal proceedings invest IJs with “broad authority to impose deadlines for court filings. This authority reflects the government's strong interest in the orderly and expeditious management of immigration cases.” Gomez–Medina, 687 F.3d at 37 (citations and internal quotation marks omitted). According to those regulations, “All documents and applications that are to be considered in a proceeding before an [IJ] must be filed with the Immigration Court having administrative control over the Record of Proceeding.” 8 C.F.R. § 1003.31(a). The regulations further provide, “The [IJ] may set and extend time limits for the filing of applications and related documents and responses thereto, if any. If an application or document is not filed within the time set by the [IJ], the opportunity to file that application or document shall be deemed waived.” Id. § 1003.31(c) (emphasis added).

“The [BIA] has long held that applications for benefits under the [Immigration and Nationality] Act are properly denied as abandoned when the [noncitizen] fails to timely file them.” Matter of R–R–, 20 I. & N. Dec. 547, 549 (BIA 1992). And we have held that an IJ does not abuse her discretion when she deems the noncitizen to have abandoned an application for relief by missing a filing deadline without good cause. See, e.g., Caldero–Guzman v. Holder, 577 F.3d 345, 348 (1st Cir.2009); Alsamhouri v. Gonzales, 484 F.3d 117, 122–23 & n. 5 (1st Cir.2007). This is so even if the noncitizen eventually files the application. See, e.g., Ahlijah v. Ashcroft, 123 Fed.Appx. 4, 11 (1st Cir.2005).

Moreta argues that, since she eventually filed her applications, and since there is no evidence that she intentionally delayed the proceedings, the IJ abused her discretion by deeming the applications abandoned. But we have never held, and we decline to hold here, that eventual filing and good intentions limit an IJ's authority under 8 C.F.R. § 1003.31(c) to deem a late application waived. Requiring such a finding of bad faith would permit end-runs around the deadlines and result in the very micromanagement that we have always eschewed.

Moreta further argues that it was an abuse of discretion to deem her applications abandoned because the IJ never informed her that missing the deadline would result in such a consequence. To support her contention that missing a filing deadline should result in negative consequences only where the noncitizen has advance notice of those consequences, Moreta cites Lopez–Bautista v. Holder, 339 Fed.Appx. 585 (6th Cir.2009).

Not only is Lopez–Bautista...