Umezurike v. Holder

• Decision Date: 09 July 2010
• Docket Number: No. 08-2519,08-4058.,08-2519
• Citation: 610 F.3d 997
• Parties: Ugochukwu UMEZURIKE, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

610 F.3d 997

Ugochukwu UMEZURIKE, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

Nos. 08-2519, 08-4058.

United States Court of Appeals, Seventh Circuit.

Argued June 5, 2009.

Decided July 9, 2010.

Emmanuel L. Muwonge (argued), Milwaukee, WI, for Petitioner.

Anh-Thu P. Mai-Windle (argued), Department of Justice, Washington, DC, for Respondent.

Before MANION, ROVNER, and TINDER, Circuit Judges.

ROVNER, Circuit Judge.

Ugochukwu Umezurike is a native and citizen of Nigeria who entered the United States on April 26, 2003, as a non-immigrant visitor for pleasure. He remained in this country beyond October 23, 2003, the date upon which his authorization expired. On June 28, 2004, he filed an application for asylum. The Department of Homeland Security referred the asylum application to the Immigration Court and placed Umezurike in removal proceedings on August 9, 2004.

Umezurike, with counsel, appeared before an immigration judge on August 24, 2004, and admitted the factual allegations contained in the Notice to Appear and conceded that he was removable as charged. Umezurike renewed his asylum application which the immigration judge also treated as a request for withholding of removal and protection under the Convention Against Torture Act. The immigration judge set a hearing on the merits for November 30, 2005, and informed Umezurike on the record and in an accompanying order that he would have to submit written documentary evidence no later than November 1, 2005, and that “[f]ailure to timely file documentation as required herein shall be deemed a waiver and abandonment of any such opportunity.” R. 150, 193. The order further noted that original supporting documents from Nigeria had to be submitted no later than July 1, 2005. On the record, the immigration judge stated, “Counsel, the respondent clearly will have to be re-fingerprinted if he has not already been fingerprinted.” R. 150. The written pre-hearing order reiterated that Umezurike would have to be fingerprinted no later than forty-five days prior to the hearing. R. 193. The July 1 and November 1 filing deadlines passed without word from Umezurike.

Five days prior to the scheduled merits hearing, on November 25, 2005, Umezurike's lawyer filed a letter with the court seeking a continuance on the basis that he had been hospitalized for the prior two weeks with a serious medical condition. Counsel attached a witness list to the document but no additional documentary evidence. R. 192. The immigration judge granted a continuance and reset the merits hearing for January 22, 2007. In a handwritten notation at the top, that order reiterated that Umezurike would have to be re-fingerprinted no later than ninety days prior to the hearing. R. 188.

On January 17, 2007, again five days prior to the scheduled hearing, Umezurike's counsel filed another list of witnesses to which he added some exhibits containing original documents and photographs from Nigeria. The documents, displaying dates ranging between October 17, 2003, and September 8, 2006, failed to conform to local operating procedures or regulations.

Umezurike did not appear for fingerprinting within forty-five or ninety days prior to the hearing. Umezurike's counsel explained to the immigration court that he had assumed his client had been fingerprinted and it was only when he began to prepare him for the hearing that he discovered that he had not. Without specifying any dates or times, Umezurike informed the court that he had contacted the U.S. Citizenship and Immigration Application Support Center in Milwaukee only to find that the person responsible for fingerprinting was on vacation and when she returned she informed Umezurike's counsel that he needed a court order for fingerprinting. Eventually, Umezurike's counsel sent his client to Chicago for fingerprinting on January 19, 2007, just three business days before the hearing but, of course, the biometric data was not available in time for the hearing.

Umezurike's counsel requested, and the immigration judge denied, an additional continuance to rectify the fingerprint and documentary evidence deficiencies. In its ruling, the immigration judge found Umezurike to be removable as charged, deemed his applications for relief and protection abandoned and issued an order of removal to Nigeria. The immigration judge reasoned that Umezurike had abandoned his applications for relief and protection by failing to comply with the court's several orders concerning the submission of documents and by failing to make timely arrangements for fingerprinting. The court noted that the case had been pending since 2004, had already been continued once and the next available hearing date was not until February 2008. The immigration judge concluded that “[t]his would lead to an unacceptable and inordinate continuance before adjudication of what I do not believe appears to amount to a prima facie withholding or even asylum case.” R. 139.

The immigration judge reasoned that the deadlines were clear from the court's instructions on the oral record, its written orders, the prehearing order and the Attorney General's administrative regulations governing the immigration courts. The immigration judge also noted that it is within an immigration judge's discretion to grant or not grant a continuance and that “failure to comply with these fingerprinting requirements can result in the Court deeming an application abandoned and/or denied.” R. 140. The court determined that Umezurike had not demonstrated good cause and thus the court would not use its discretion to grant a continuance. Umezurike declined the government's offer for voluntary departure, and the court determined that Umezurike had abandoned his opportunity to pursue asylum, withholding of removal, relief under the Convention Against Torture Act, and other forms of relief before the court.

On appeal before the Board, Umezurike argued that the immigration judge denied him a full and fair opportunity to present his case. Umezurike argued that he had undertaken efforts to be fingerprinted and that his failure to timely submit evidence was due to a misunderstanding regarding the hearing date. Counsel asserted that he had made numerous unsuccessful efforts to secure records from Nigeria. Umezurike sought to reopen the proceedings based on the fact that he had received authentication for the documents from Nigeria after the immigration judge's decision. In front of the Board, Umezurike's counsel presented his own affidavit which incorporated the documentary evidence that the Board declined to admit on appeal.

As for the fingerprint analysis, counsel's affidavit before the Board retold the story of the vacationing immigration services employee, noting that he had been informed that his client could not be fingerprinted until a particular employee returned from vacation, and that by the time that employee returned from vacation, less than one week remained before the hearing. At that point, the affidavit asserts, the employee advised counsel to send his client to Chicago for fingerprinting. The affidavit does not state when counsel first attempted to have his client fingerprinted or on what date he first called the Application Support Center. Counsel claimed that he thought that biometric results could be available in a matter of days, and thus would be available prior to the hearing, but offered no explanation as to why he did not attempt to secure the fingerprints either ninety or forty-five days prior to the hearing as ordered by the court.

The Board of Immigration Appeals issued a single-member decision on May 20, 2008, adopting and affirming the immigration judge's decision and agreeing that the judge below properly deemed the applications abandoned when Umezurike failed to demonstrate good cause for failing to submit a fingerprint analysis in a timely fashion. The Board also affirmed the immigration judge's decision to deny admission of documents into the record when Umezurike failed to comply with the court's order regarding the deadline and manner for submitting supporting documentation. The Board concluded that the immigration judge did not abuse her discretion in denying a continuance to correct the deficiencies, as Umezurike had not demonstrated good cause for his failings. Finally, the Board denied Umezurike's request to reopen and admit evidence, noting that Umezurike failed to provide reasonable and probative evidence as to why the documentation could not have been procured and submitted in a timely manner before the immigration judge. R. 73-74.

On June 19, 2008, Umezurike filed a petition to review the Board's decision in this court. In the meantime, he also filed a motion with the Board to reconsider its May 20, 2008 decision denying reconsideration on the same claims previously presented. The Board denied his motion to reconsider on October 30, 2008, noting that Umezurike failed to establish any error of fact or law supported by pertinent authority. Umezurike timely filed in this court a petition for review of the Board's October 30, 2008 denial of his motion to reconsider. This Court consolidated the two pending petitions for review.

Our task is to review the decision of the immigration judge and any additional reasoning supplemented by the Board in its review of the immigration judge's decision. Milanouic v. Holder, 591 F.3d 566, 570 (7th Cir.2010). In this case, in addition to the decision of the immigration judge, we review two decisions from the Board. In the first decision, issued on May 20, 2008, the Board responded to Umezurike's appeal of the immigration judge's January 22, 2007 decision. The Board adopted and affirmed the decision of the immigration judge, noting that the immigration judge did not abuse her discretion by finding the application abandoned, relying largely on the immigration judge's reasoning for its own short decision. On October 30, 2008, the Board...