Salomao v. Garland
| Decision Date | 02 May 2022 |
| Docket Number | 20-1856 |
| Parties | DIALUNGANA NKANUAMBOTE SALOMAO; VANILSON MANDELA SALOMAO, Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
Argued: January 25, 2022
On Petition for Review of Orders of the Board of Immigration Appeals.
ARGUED:
Helen Parsonage, ELLIOT MORGAN PARSONAGE, Winston-Salem, North Carolina, for Petitioners.
Aric Allan Anderson, UNITED STATES DEPARTMENT OF JUSTICE Washington, D.C., for Respondent.
ON BRIEF:
Japheth N. Matemu, MATEMU LAW OFFICE P.C., Raleigh, North Carolina, for Petitioners.
Jeffrey Bossert Clark, Acting Assistant Attorney General, Emily Anne Radford, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Before GREGORY, Chief Judge, THACKER, Circuit Judge, and FLOYD, Senior Circuit Judge.
Petition for review granted; vacated and remanded by unpublished opinion.
This case arises out of an in absentia order against two Petitioners who allege to have arrived one hour and five minutes late to their individual hearing scheduled for several hours. Neither the immigration judge ("IJ") nor the Board of Immigration Appeals ("BIA") addressed this argument. For the reasons that follow, we find that the BIA abused its discretion when it made no mention of the alleged late arrival in its decision to dismiss the motion to reopen proceedings on appeal. Thus, we reverse and vacate the BIA's order and remand for further proceedings consistent with this opinion.
Petitioner Dialungana Nkanuambote Salomao ("Dialungana") and his adult son, Vanilson Mansueki Mandela Salomao ("Vanilson") (together, "Petitioners"), are Angolan citizens and members of the Bakongo ethnic group. A.R. 149-50. The Bakongo people- located in Angola, the Republic of Congo, and the Democratic Republic of Congo ("DRC")-have historical ties to a certain political ideology that Petitioners have claimed caused them to be discriminated against. A.R. 102-03; see A.R. 110-14, 118-26, 253-55. Dialungana was a member of the Angolan military between 1989-2011 and claims to have fled Angola after being labeled a traitor for refusing to follow orders to participate in a military coup in Kinshasa, DRC. A.R. 168-169. Because of this, Dialungana argues that his and his son's life would be in danger should they return to Angola. A.R. 169.
In August 2013, Petitioners fraudulently entered the United States through the Visa Waiver Program ("VWP"). A.R. 906, 925; see A.R. 169. In July 2014, Dialungana filed for asylum and named Vanilson as a derivative asylum applicant. A.R. 733-41. The Department of Homeland Security ("DHS") referred Petitioners to an IJ for asylum-only proceedings. A.R. 906-08, 925-27. Petitioners' individual hearing was scheduled for September 14, 2017, [1] but was later rescheduled for March 26, 2018, due to several continuances. A.R. 85-86, 93-96. The hearing was set to start at 10:00 a.m. Petitioners' counsel received the hearing notice and sent it to Petitioners on August 8, 2017. A.R. 51, 57.
At the end of the business day on the Friday preceding the hearing, Petitioners received a voicemail reminder from their counsel's firm. A.R. 57. Dialungana submitted an affidavit claiming he was unable to access his voicemail or to reach the firm until the Monday morning of his hearing. A paralegal from the firm-Courtney Desiree' Schell- declared in an affidavit that she overheard a phone conversation between Dialungana and another paralegal that Monday morning, during which Dialungana learned that his hearing began in one hour. She noted that Dialungana sounded confused and stated that he was "over two hours away" from court. A.R. 62. According to Dialungana's affidavit, he then immediately left work and collected Vanilson from school on his way to court. A.R. 57. Dialungana's counsel was present for the 10:00 a.m. hearing, and when he called Dialungana to ask where Petitioners were, Dialungana falsely told him that he had a flat tire but was on the way. A.R. 57-58. Petitioners' counsel relayed this explanation to the IJ. A.R. 29. Although the record is silent as to what time this transpired, it is clear it occurred after the hearing began at 10:00 a.m. The IJ then entered an in absentia order, denying Petitioners' applications as abandoned. A.R. 83-84, 919-20. According to an attorney who worked with Petitioners' counsel and was at the court that day-Susan Waller Ramos- Petitioners arrived at 11:05 a.m. A.R. 61.
On September 19, 2018, Petitioners filed a motion to reopen the proceedings. A.R. 45-55. Petitioners argued that they arrived late and therefore did not fail to appear. A.R. 52. Supporting documents submitted to the IJ included: (1) Dialungana's affidavit admitting that his flat tire explanation was false;[2] (2) Ramos's affidavit stating that she witnessed Petitioners arrive at 11:05 a.m.; and (3) Schell's affidavit explaining that Dialungana called the firm one hour before his hearing. A.R. 57-63. Petitioners' primary argument, however, was that Dialungana's ongoing health issues prevented their timely appearance and constituted exceptional circumstances. A.R. 52-53. In support, Petitioners submitted a three-page medical document from Dialungana's visit with a neurologist on May 11, 2018, addressing "[m]emory loss; PTSD (post-traumatic stress disorder); and Depression, unspecified depression type." A.R. 64-66. Other documents submitted included a prescription, as well as articles reflecting research that Petitioners claimed tied Dialungana's medication to memory loss. A.R. 66; see A.R. 67-82.
Unconvinced, the IJ found that Petitioners failed to establish exceptional circumstances and denied their motion on May 8, 2019. A.R. 36-38. Not only did Petitioners fail to submit proof of a definitive diagnosis, but Dialungana's admission that he lied to his counsel-and by consequence the IJ-about having a flat tire led the IJ to doubt his credibility and "self-serving affidavit, or information documented by medical personnel based upon his statements made to them" after he was denied relief. A.R. 30.[3]The IJ also found, in the alternative, that Petitioners failed to show prima facie eligibility for relief on the merits of their asylum or withholding of removal claims. A.R. 30. On appeal, the BIA agreed with the IJ's exceptional circumstances determination and found no clear error with the IJ's credibility assessment. A.R. 3-5. Without reaching the IJ's finding concerning Petitioners' underlying claims, the BIA dismissed the appeal on July 10, 2020.[4] This timely appeal followed.
We must first determine whether this Court has jurisdiction to consider the petition for review. Petitioners entered the United States using fraudulent passports from a VWP country.[5] Participants in the VWP are permitted to visit the United States for up to ninety days without a visa. 8 U.S.C. § 1187(a)(1). In exchange, participants forfeit the right "to contest, other than on the basis of an application for asylum, any action for removal of the alien." 8 U.S.C. § 1187(b); see 8 C.F.R. § 217.4(a)-(b) (2006). Therefore, a VWP participant who applies for asylum will engage in an asylum-only proceeding.[6] Because this is the sole relief available to a VWP participant, a denial of such relief signals that the participant may be removed by DHS without further proceedings. 8 C.F.R. §§ 208.2(c)(3)(i), 1208.2(c)(3)(i). Once the IJ and BIA have denied relief in a VWP asylum-only proceeding, DHS will enter a final order of removal. This step is exclusive to DHS as the IJ and BIA determine relief and are unauthorized to enter final orders of removal in VWP asylum-only proceedings.
This Court's jurisdiction, however, is limited to "final order[s] of removal." 8 U.S.C. § 1252(a)(1). We must therefore determine whether denying a VWP participant's relief in an asylum-only proceeding functions like a final order of removal for the purposes of our jurisdiction. At oral argument, both parties argued that it does.[7]
At least five of our sister circuits have established jurisdiction in cases involving asylum-only proceedings. See, e.g., Tai Nian v. Holder, 683 F.3d 1227, 1229-30 (9th Cir. 2012) (); Mitondo v. Mukasey, 523 F.3d 784, 787 (7th Cir. 2008) (); Shehu v. Att'y Gen., 482 F.3d 652, 656 (3d Cir. 2007) (); Kanacevic v. INS, 448 F.3d 129, 134- 35 (2d Cir. 2006) (); Nreka v. United States Attorney Gen., 408 F.3d 1361, 1367 (11th Cir. 2005) ( that the denial of relief in a VWP case equates to a final order of removal).
In considering the same jurisdictional question, the Second Circuit concluded, "[a]lthough the denial of asylum in a [VWP] case does not occur in the context of removal proceedings, denial of the asylum application is the functional equivalent of a removal order under the provisions of the [VWP]." Kanacevic, 448 F.3d at 134. It also recognized that finding otherwise "would create uncertainty over exactly what procedure a [VWP] applicant could pursue in order to obtain review of his or her asylum proceedings." Id. at 135. Due to the structure of the VWP, the only remaining action to be...
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