CA7 remands for reasoned analysis of evidence of past persection in Belarus

Sobaleva entered the U.S. on a student visa and applied for asylum, contending that the Belarusian government persecuted her for her political opinion before she left and likely would do so again if she were to return. She also requested asylum for her husband, Potorac, a citizen of Moldova. An immigration judge denied Sobaleva’s application and ordered that she and Potorac be removed. The Board of Immigration Appeals affirmed, stating that Sobaleva had not established either past persecution based on her political opinion or a well-founded fear of future persecution. The Seventh Circuit remanded, finding two significant flaws in the decisions: the judge and the Board applied the wrong legal standard to conclude that Sobaleva was not persecuted in Belarus and misconstrued and disregarded important evidence.

In Belarus, Sobaleva belonged to a group called Malady Front (Young Front), a large youth organization opposed to the country’s longtime authoritarian leader, Alexander Lukashenko. Malady Front and affiliated organizations like Young Belarus have been frequent targets of government crackdowns on dissent. See, e.g., U.S. Department of State, 2010 Human Rights Report: Belarus 3–8 (April 8, 2011) (describing the arrests and detentions of group members for their political activity); Amnesty International, 2007 Report 1on Belarus (April 3, 2007) (ascribing the five-year prison sentence of Malady Front leader Alyaksandr Kazulin to a “systematic campaign of harassment, intimidation, and obstruction by the Belarusian authorities”). Conditions in Belarus have not improved since Sobaleva’s departure in May 2010. See Boika v. Holder, 727 F.3d 735, 739 (7th Cir.2013) (summarizing evidence that, since Lukashenko’s disputed election in December 2010, the Belarusian government has been particularly aggressive toward opponents)

Sobaleva filed a timely application for asylum roughly nine months after her arrival in the United States. Her application described her participation in anti-government protests and her mistreatment by police in connection with two of them. The judge and the Board applied the wrong legal standard to conclude that Sobaleva was not persecuted in Belarus. Second, both the judge and the Board misconstrued and disregarded important evidence, so that the decision to deny Sobaleva’s application is not supported by a reasoned analysis. Sobaleva did not receive a reasoned analysis of her evidence. She must be provided with one on remand. If the Board then concludes that the police officers were motivated by Sobaleva’s political opinion during the May 2010 incident, it must consider whether the combination of that incident and her October 2009 arrest and detention amounts to past persecution.

The first major flaw is that both the immigration judge and the Board apparently applied the appellate court’s standard for assessing persecution claims on judicial review rather than the standard that applies to their own judgments in the first instance. CA7 held in a similar case, Sirbu, 718 F.3d at 658-60, that this is a legal error that requires remand. The two standards for assessing evidence of persecution are distinct. On judicial review of a denial of asylum, CA7 asks whether the petitioner’s evidence compels a finding of persecution. By contrast, the “proper issue for the immigration judge and the Board is whether the applicant has actually shown past persecution,” which is a less demanding standard that calls for the agency to apply its expert judgment.

The second major flaw in the immigration judge’s and Board’s decisions is that neither gave due consideration to the evidence Sobaleva presented. Both disregarded some evidence, improperly isolated or mischaracterized other evidence, and took logical leaps that do not withstand scrutiny. “An asylum applicant is entitled to a reasoned analysis of her case supported by relevant, probative evidence.” Where such analysis is lacking, remand for further consideration is required. See id.; Qiu Yun Chen v. Holder, 715 F.3d 207, 214 (7th Cir. 2013) (remanding because Board’s mischaracterization of some evidence and disregard of other evidence “depriv[ed] the Board’s order denying asylum of a rational foundation”); Iao v. Gonzales, 400 F.3d 530, 533 (7th Cir. 2005) (“We do not decide that [the petitioner] is entitled to asylum; that is a decision for the immigration authorities to make. But she is entitled to a rational analysis of the evidence by them.”).

___________________________________
KATSIARYNA SOBALEVA and ALEXANDRU POTORAC, Petitioners,
v.
ERIC HOLDER, JR., Attorney General of the United States, Respondent.
No. 13-3651

United States Court of Appeals, Seventh Circuit.
Argued April 1, 2014.
Decided July 24, 2014.

Before TINDER and HAMILTON, Circuit Judges, and KAPALA, District Judge.[*]

HAMILTON, Circuit Judge.

Petitioner Katsiaryna Sobaleva, a citizen of Belarus, entered the United States on a valid student visa. She applied for asylum, contending that the Belarusian government persecuted her for her political opinion before she left and likely would do so again if she were to return. She also requested asylum for her husband, Alexandru Potorac, a citizen of Moldova. (Because Potorac’s eligibility for asylum derives entirely from Sobaleva’s, it does not require separate consideration.) An immigration judge denied Sobaleva’s application and ordered that she and Potorac be removed to their respective countries. The Board of Immigration Appeals affirmed, explaining that Sobaleva had not established either past persecution based on her political opinion or a well-founded fear of future persecution.

Sobaleva and Potorac petition this court for review of the orders of removal. We conclude that two significant flaws in the decisions of both the immigration judge and the Board require that the petition be granted and the case remanded for further consideration. First, the judge and the Board applied the wrong legal standard to conclude that Sobaleva was not persecuted in Belarus. Second, both the judge and the Board misconstrued and disregarded important evidence, so that the decision to deny Sobaleva’s application is not supported by a reasoned analysis.

I. Factual and Procedural Background

In Belarus, Sobaleva belonged to a group called Malady Front (Young Front), a large youth organization opposed to the country’s longtime authoritarian leader, Alexander Lukashenko. Malady Front and affiliated organizations like Young Belarus have been frequent targets of government crackdowns on dissent. See, e.g., U.S. Department of State, 2010 Human Rights Report: Belarus 3-8 (April 8, 2011) (describing the arrests and detentions of group members for their political activity); Amnesty International, 2007 Report on Belarus (April 3, 2007) (ascribing the five-year prison sentence of Malady Front leader Alyaksandr Kazulin to a “systematic campaign of harassment, intimidation, and obstruction by the Belarusian authorities”). Conditions in Belarus have not improved since Sobaleva’s departure in May 2010. See Boika v. Holder, 727 F.3d 735, 739 (7th Cir. 2013) (summarizing evidence that, since Lukashenko’s disputed election in December 2010, the Belarusian government has been particularly aggressive toward opponents).

Sobaleva filed a timely application for asylum roughly nine months after her arrival in the United States. Her application described her participation in anti-government protests and her mistreatment by police in connection with two of them. A hearing on her application was held before an immigration judge.

In her testimony at the hearing and in an affidavit, Sobaleva recounted that police officers arrived at an October 2009 protest and began beating protesters indiscriminately. One officer hit Sobaleva hard in the face, knocking off her glasses and causing her nose to bleed. While she was bent over to retrieve the glasses, an officer grabbed her by the neck and shoved her into a police bus, where another officer hit her in the arm. Upon arriving at the police station, she was pushed out of the bus onto the ground.

Officers questioned Sobaleva inside the station about her political activities. She and five other arrestees were then placed in a cold cell designed to accommodate only two people. The detention lasted overnight for a total of about 15 hours. After her release, her mother tried to file a complaint about the incident but was turned away from the police station.

Sobaleva also testified that, on May 16, 2010, she had another experience with politically motivated violence by police. While she and two fellow protesters were walking together after a demonstration, they were stopped by officers who demanded identification. Although Sobaleva and her companions had left the protest site, they were wearing pictures of political prisoners on their shirts. Sobaleva testified that it is not unusual in Belarus for police officers to request identification but that, in this instance, after radioing in their names for a check, an officer began copying information from their passports into a report.

At that point, Sobaleva reached for her passport and asked if she was under arrest. An officer responded by shoving her against a building, knocking her unconscious. When she regained consciousness, her friends told her that the officer had kicked her while she was on the ground. Nauseated and in pain, Sobaleva went to a medical clinic and was diagnosed with a concussion, as documented by a doctor’s report in the record. The doctor recommended hospitalization, but Sobaleva chose instead to go home, where she stayed in bed for a week.

Soon after the incident, both of Sobaleva’s companions from the May 16 protest received notices to pay a fine. Sobaleva, however, received a summons to come to court on June 10 “in the role of the accused.” The summons identified the case as “criminal” but did not indicate why Sobaleva was being summoned or with what crime she had been charged.

Having left for the United States on May 31, Sobaleva did not attend court on June 10. She could provide no direct evidence at her asylum hearing that the summons concerned the events of May 16, but she testified that she believes it did because her companions from that day were fined and because she knows of no other reason she would have been summoned. She believes that she received a summons instead of being fined because she had previously been arrested for protesting—something the officers would have learned when they radioed in the information from her passport—and because she challenged them during the encounter.

According to Sobaleva’s mother, whose detailed written statement is also in the record, police officers came to her house looking for Sobaleva on June 10 after she did not show up in court. They have returned repeatedly since then and have threatened that Sobaleva’s absence could cost her mother her job.

The immigration judge denied Sobaleva’s application, finding that her evidence, when compared with other cases this court has decided, did not establish that she had been persecuted for her political opinion or that she has a wellfounded fear of future persecution. Regarding her arrest in October 2009, the judge observed that Sobaleva was held for no more than 16 hours and “was not mistreated” during that time. Additionally, Sobaleva herself did not “consider [the 2009] incident to be significant,” which the judge inferred from her continued political activity and her failure to mention the incident when she applied for her visa at the U.S. Embassy. Regarding the confrontation with police in May 2010, the judge said that Sobaleva did not “contend that she was detained or seriously abused by the police in the incident.” And the judge concluded that the summons she received “standing alone” did not suggest that she would be persecuted in the future.

The Board of Immigration Appeals affirmed. The Board accepted the judge’s assessment that Sobaleva gave credible testimony, and we do the same. See Ndonyi v. Mukasey, 541 F.3d 702, 709 (7th Cir. 2008). The Board found, though, that the events she described and her supporting evidence were not enough to meet her burden of proof. Her treatment by police in and after the October 2009 protest was “condemnable” but “did not rise to the level of persecution” as shown by a comparison with the treatment of other asylum applicants in cases decided by this court. Regarding the May 2010 incident, which resulted in a concussion, the Board found that Sobaleva “did not meet her burden of showing that her political opinion was a central reason for the mistreatment she suffered.” The Board also found that Sobaleva had failed to establish a connection between the court summons she received and her political activity.

II. Analysis

To be eligible for asylum, Sobaleva needed to establish either that she has suffered past persecution on account of her political opinion (or another protected ground) or that she has a well-founded fear of future persecution on a protected ground. See 8 U.S.C. § 1101(a)(42)(A); N.L.A. v. Holder, 744 F.3d 425, 431 (7th Cir. 2014). Past persecution raises a rebuttable presumption that the petitioner has a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1); N.L.A., 744 F.3d at 431. Sobaleva argues that the Board of Immigration Appeals and immigration judge misconstrued her evidence in numerous ways and failed to consider it in context. If properly considered, she contends, the evidence establishes that she was persecuted for her political opinion and has a well-founded fear of future persecution, entitling her to asylum.

Because the Board provided its own analysis and also affirmed the immigration judge’s decision, we review both decisions. See Bathula v. Holder, 723 F.3d 889, 897 (7th Cir. 2013). Our review of legal conclusions is de novo, and we review factual conclusions to determine whether they are supported by “substantial evidence.” Id. at 897-98. We must ask whether the agency applied the proper legal standard in evaluating Sobaleva’s application, see Sirbu v. Holder, 718 F.3d 655, 658 (7th Cir. 2013), and also whether the agency’s conclusions are supported by a reasoned analysis of the evidence, see Cece v. Holder, 733 F.3d 662, 678 (7th Cir. 2013) (en banc). Only if the record “compels” a finding of past persecution or a well-founded fear of future persecution will we conclude on judicial review that the applicant is eligible for asylum. Nzeve v. Holder, 582 F.3d 678, 684 (7th Cir. 2009).

For two reasons, the decisions of the immigration judge and Board in this case cannot stand. We do not decide at this time whether the record actually compels a finding of persecution; rather, we conclude that the flaws we have identified require remand to the Board for further consideration of Sobaleva’s application.

The first major flaw is that both the immigration judge and the Board apparently applied this court’s standard for assessing persecution claims on judicial review rather than the standard that applies to their own judgments in the first instance. We held in a similar case, Sirbu, 718 F.3d at 658-60, that this is a legal error that requires remand.

The two standards for assessing evidence of persecution are distinct. As explained above, on judicial review of a denial of asylum, we ask whether the petitioner’s evidence compels a finding of persecution. By contrast, the “proper issue for the immigration judge and the Board is whether the applicant has actually shown past persecution,” which is a less demanding standard that calls for the agency to apply its expert judgment. Id. at 659.

In Sirbu, the immigration judge concluded that the asylum applicant’s evidence did not “compel” a finding of persecution, and the Board, without using the word compel, “distinguished on factual grounds” our decision in Asani v. INS, 154 F.3d 719 (7th Cir. 1998), in which we “held that the facts were indeed so powerful as to `compel’ a finding of past persecution.” 718 F.3d at 658. “The Board then found guidance from our decision in Dandan [v. Ashcroft, 339 F.3d 567 (7th Cir. 2003)] in which we held that the abuse of the petitioner in police custody was not so severe as to `compel’ a finding of past persecution.” Id.; see Asani, 154 F.3d at 722-24 (7th Cir. 1998) (explaining that Board erred in concluding that petitioner was not seriously harmed by being detained for a week, being deprived of food, and having two of his teeth knocked out); Dandan, 339 F.3d at 574 (“A three-day interrogation resulting in a `swollen’ face does not compel us to conclude that the BIA was incorrect [in not finding past persecution].”). We concluded in Sirbu that the judge and the Board both had applied the appellate court standard for judicial review rather than making an independent determination. 718 F.3d at 658. We granted the petition for review for that reason and remanded the case for further consideration. Id. at 660.

As in Sirbu, the immigration judge and the Board in this case seem to have considered whether Sobaleva’s evidence would compel a finding of persecution on judicial review rather than considering whether she was in fact persecuted. The immigration judge did not use the word compel, but in concluding that Sobaleva’s treatment did not equal persecution, he said that her case “closely resembles the facts in Dandan and not the facts in Asani.” This reliance on a simple comparison to our cases disregarded the fact that when we apply deferential judicial review, we “expect the immigration judge and the Board to exercise their independent judgment and expertise in deciding whether the abuse of an applicant for asylum rose to the level of persecution.” Sirbu, 718 F.3d at 658. Facts that may not have compelled a finding of persecution in one case may nevertheless support such a finding in another case. The Board and immigration judges must keep in mind the difference between our standard and theirs when they assess evidence of persecution.

Rather than correcting the immigration judge’s Sirbu error, the Board actually exacerbated the problem. It supported its conclusion that Sobaleva’s “arrest and detention did not rise to the level of persecution” with a citation to Nzeve v. Holder, 582 F.3d 678 (7th Cir. 2009), followed by this parenthetical: “being beaten with batons, kicked, struck with the butt of a gun, and threatened does not compel holding that such harm rises to the level of persecution.” This citation referring to compulsion suggests that the Board asked itself only whether the evidence compelled, rather than warranted, a finding of persecution. And an additional citation to Stanojkova v. Holder, 645 F.3d 943 (7th Cir. 2011), in which we held that a family’s account of abuse by police compelled a finding of past persecution, does nothing to remove that impression. In short, when citing this court’s cases, the Board must not assess an asylum applicant’s evidence as this court would on judicial review. Remand is necessary so that Sobaleva’s evidence of persecution can be reassessed under the proper standard. (Moreover, the mistreatment at issue in Nzeve is distinguishable from Sobaleva’s. The petitioner in that case, who suffered some “blisters and bruises,” was not arrested after the assault. Nzeve, 582 F.3d at 683-84.)

The second major flaw in the immigration judge’s and Board’s decisions is that neither gave due consideration to the evidence Sobaleva presented. Both disregarded some evidence, improperly isolated or mischaracterized other evidence, and took logical leaps that do not withstand scrutiny. “An asylum applicant is entitled to a reasoned analysis of her case supported by relevant, probative evidence.” Cece, 733 F.3d at 678. Where such analysis is lacking, remand for further consideration is required. See id.; Qiu Yun Chen v. Holder, 715 F.3d 207, 214 (7th Cir. 2013) (remanding because Board’s mischaracterization of some evidence and disregard of other evidence “depriv[ed] the Board’s order denying asylum of a rational foundation”); Iao v. Gonzales, 400 F.3d 530, 533 (7th Cir. 2005) (“We do not decide that [the petitioner] is entitled to asylum; that is a decision for the immigration authorities to make. But she is entitled to a rational analysis of the evidence by them.”).

Again, our review for substantial evidence requires us to ask whether the agency complied with its duty to provide a reasoned analysis of that evidence. We conclude that it did not. Our focus is primarily on the Board’s decision, but a few aspects of the immigration judge’s decision bear mentioning first.

In his description of Sobaleva’s 2009 arrest and detention, the judge inexplicably ignored that she was hit twice and pushed to the ground. He also observed that Sobaleva did not think the 2009 incident was “significant,” which is an observation unsupported by evidence. That she continued her political activities surely suggests commitment to the cause rather than the absence of persecution. The fact that she did not mention the incident to the U.S. Embassy seems a poor reason to conclude that she thought it was insignificant.

In then discussing the court summons Sobaleva received after the 2010 incident, the immigration judge observed that “standing alone” it did not establish a well-founded fear of future persecution. But of course it should not be considered standing alone. Standing alone, the unexplained court summons to answer an unspecified charge said little. In the context of Sobaleva’s testimony, which was found credible, the summons takes on greater significance. And under the law, that evidence must be considered along with all the other evidence, including Sobaleva’s past experience with the authorities and her mother’s account of events since her departure. See Chen v. Holder, 604 F.3d 324, 334-35 (7th Cir. 2010) (“totality of evidence” must be considered in deciding persecution questions); Bejko v. Gonzales, 468 F.3d 482, 486 (7th Cir. 2006) (explaining that “it is axiomatic that the evidence of persecution must be considered as a whole, rather than piecemeal”).

The Board’s decision includes the same type of errors. Most problematic is the Board’s treatment of Sobaleva’s May 2010 stop by police and her subsequent summons to court. In concluding that Sobaleva failed to meet her burden under 8 U.S.C. § 1158(b)(1)(B)(i) of showing that her political opinion was “at least one central reason” for the May 2010 incident, the Board observed that she had left the protest site before the stop and that the police officers did not arrest her, did not mention her politics or tell her to cease her activities, and did not harm her friends. The officers behaved this way, the Board pointed out, despite the group’s “apparent political activism” and known history of protesting. From this the Board concluded that the officers most likely mistreated Sobaleva simply because she reached for her passport.

The Board’s characterization of the situation improperly discounted the context in which the stop took place as well as key facts suggesting that Sobaleva’s political activity was a primary reason for her mistreatment. In Ndonyi v. Mukasey, 541 F.3d 702, 711 (7th Cir. 2008), we found error in the Board’s conclusion that the petitioner was mistreated during a political protest not on account of her political opinion but “for disturbing the peace or for attempting to break into an administrative office.” As the Board acknowledged here, Sobaleva’s political activity was “apparent” and her arrest record was known to the officers. The Board should have considered the possibility that the officers “were partially motivated by politics.” Ndonyi, 541 F.3d at 710-11.

The Board, however, concluded that the officers’ more lenient treatment of Sobaleva’s companions negated the possibility that her politics played a role in motivating the attack. We do not follow that reasoning. Sobaleva became the most vocal and resistant member of the group when her passport was not returned as it would have been during a routine stop. She also had been arrested and detained fairly recently. Both facts are consistent with the officers being motivated by her political opposition to the regime. The fact that the officers were content to give her a concussion without arresting her at the time does not suggest, as the Board reasoned, a non-political motive.

Further undermining the Board’s assessment of the May 2010 incident is that Sobaleva received the court summons shortly thereafter. The Board conceded that the summons was likely connected to the May 2010 incident and that in Belarus “the judiciary succumbs to political interference.” But the Board then found that Sobaleva had not shown “any improper basis for the summons,” apparently reasoning that summoning her to court on mystery criminal charges after she was severely injured by an officer in response to having reached for her passport would be proper. Again, we do not understand the Board’s reasoning. The fact that Sobaleva was quickly summoned to answer unknown charges only supports the idea that the unknown charges were based at least in part on her political activity.

The Board went on to explain that the “fact that the respondent’s friends received only fines undermines her claim that the summons is politically motivated.” The conclusion does not follow. If Sobaleva’s mistreatment was solely the result of her own behavior during the stop and not her political opinion, why were her companions fined? They did not misbehave. The Board did not attempt to answer that question.

Finally, the Board mentioned only in passing Sobaleva’s mother’s account of events since her daughter’s departure, giving that account no apparent weight. But her mother’s account is additional support for the idea that Sobaleva was not summoned to court simply because she reached for her passport. According to Sobaleva’s mother, the police have been diligent in seeking her daughter since the missed court date and have even threatened her with the loss of her job. This diligence and intensity surely seem greater than would be expected if the authorities viewed Sobaleva as merely a common disturber of the peace. Sobaleva’s mother’s account is relevant not only to whether the police had a political motive for Sobaleva’s treatment in May 2010, but also to the critical question of how she would likely be treated if she were returned to Belarus. Ignoring evidence that relates to key issues is error. See Qiu Yun Chen, 715 F.3d at 212-13.

Taking all of this into account, we must conclude that Sobaleva did not receive a reasoned analysis of her evidence. She must be provided with one on remand. If the Board then concludes that the police officers were motivated by Sobaleva’s political opinion during the May 2010 incident, it must consider whether the combination of that incident and her October 2009 arrest and detention amounts to past persecution. The Board must also take care on remand to reassess Sobaleva’s eligibility for asylum independently, as directed by Sirbu.

The petition for review is GRANTED and the case is REMANDED to the Board of Immigration Appeals for further proceedings consistent with this opinion.

[*] Of the Northern District of Illinois, sitting by designation.

Posted in 7th Circuit Cases- Aliens, Asylum, past persecution, political asylum, political opinion, reasoned analysis of evidence, well-founded fear of future persecution | Leave a comment

CA7 finds abuse of discretion in denial of Continuance pending adjudication of I-130

Denial of a continuance on the basis of a non-reason is an abuse of discretion.

Yang, a citizen of China, entered the U.S. in 1998, as a tourist. In 2000, he married a U.S. citizen, who filed an I-130 visa petition and application for adjustment of status on Yang’s behalf, but withdrew her petition in 2003. , Yang’s application was denied after an investigation led USCIS to conclude that his marriage was fraudulent. In 2007 he divorced. Yang then filed an application for asylum and associated relief based on his practice of Falun Gong. Although Falun Gong was not officially banned in China until 1999, in 1998 the police arrested Yang and placed him in a cell overnight. Yang continued practicing Falun Gong in the U.S. and believed that Chinese officials knew of his practice. In 2008, Yang married Li, who immediately filed an I-130 petition on his behalf. USCIS sent notice of intent to deny, because it believed that Yang’s prior marriage had been a sham. Li submitted rebuttal materials, but USCIS lost them and denied the petition for lack of support. The IJ denied a continuance pending adjudication of the I-130. Yang also sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT). He was unsuccessful. The Seventh Circuit remanded the BIA’s decision to uphold the IJ’s denial of a continuance pending adjudication of Yang’s I- 130.

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_________________________________________
AIMIN YANG, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.

No. 13-3849

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

2014 U.S. App. LEXIS 14233

June 4, 2014, Argued
July 25, 2014, Decided

JUDGES: Before WOOD, Chief Judge, and CUDAHY and ROVNER, Circuit Judges.

OPINION BY: WOOD

OPINION

Wood, Chief Judge. Aimin Yang, the petitioner in this case, is in a difficult position. After Feng Li, who is a U.S. citizen, married Yang, Li submitted a Petition for Alien Relative form (Form I-130) to the U.S. Citizenship and Immigration Services (USCIS) on Yang’s behalf. If approved, this form permits the alien relative to file a Form I-485 for adjustment of status to that of a lawful permanent resident; he or she may do so, however, only once a visa number becomes available. USCIS sent Li a notice of intent to deny, not because there was anything wrong with the marriage (which was Yang’s third), but because it believed that Yang’s second marriage had been a sham. Yang and Li submitted materials to rebut this allegation, but USCIS lost them and then denied the I-130 petition for lack of support. Li appealed that decision to the Board of Immigration Appeals (Board). On a separate track, Yang sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT). He was unsuccessful. He has now brought before us a petition for review of the Board’s decision denying all relief. Although we are satisfied that the Board did not abuse its discretion in denying Yang’s request for asylum and associated relief, the same cannot be said for its decision to uphold the IJ’s denial of a continuance pending adjudication of Yang’s I-130; we grant the petition for review only on that basis.

I

Yang is a native and citizen of China who entered the United States on April 9, 1998, as a tourist. On October 6, 2000, he married a U.S. citizen, Deirdre Prestin. Prestin filed an I-130 visa petition and application for adjustment of status on Yang’s behalf on November 16, 2000, but in the wake of marital problems, she withdrew her petition on January 10, 2003. In August of 2003, Yang’s application for adjustment of status was denied after an investigation led USCIS to conclude that his marriage to Prestin was for immigration purposes only and thus fraudulent. In November 2007, he and Prestin were divorced.

In August 2003, the Department of Homeland Security (DHS) initiated removal proceedings against Yang. He conceded removability, but shortly after his divorce from Prestin he filed an application for asylum and associated relief based on his practice of Falun Gong. He asserted that he began practicing Falun Gong in China in 1997 after doctors were unable to cure his pneumonia. Two months of Falun Gong exercises, he reported, restored his health and persuaded him to become a more serious practitioner. Matters took a turn for the worse, however, when his work supervisors discovered his practice of Falun Gong and told him that he would be fired if he did not stop. He did not heed their warnings. Although Falun Gong was not officially banned in China until July 1999, in March 1998 the police arrested Yang and placed him in a cell overnight. During that encounter, they told him that he should stop practicing Falun Gong and slapped him twice on the face, causing his gums to bleed. These encounters prompted Yang’s first wife to divorce him, and not long afterward he came to the United States.

In this country, Yang continued practicing Falun Gong. Though he generally did so alone, he attended some group meetings and a number of protests in New York outside the Chinese consulate, where he was photographed. Yang testified that his father (still in China) was visited by Chinese officials around January 2012; the officials questioned his father about Yang’s whereabouts. They also asked why Yang had not yet returned from the United States and whether Yang had participated in any anti-government activities. Upon learning of this conversation, Yang became afraid that Chinese officials were aware of his practice of Falun Gong in the United States.

The first merits hearing in Yang’s removal case took place in September 2008. About a month later, Yang married Li. As we noted, Li immediately filed an I-130 petition on Yang’s behalf, but USCIS tentatively decided to deny it on the grounds that Yang’s marriage to Prestin had been a sham.

When Yang and Li received the Notice of Intent to Deny Li’s I-130 petition, they assembled a comprehensive response to demonstrate the bona fides of the Prestin marriage and sent it to USCIS using an overnight express delivery service. The package included an affidavit from Prestin swearing that the marriage was bona fide; an affidavit from Prestin’s daughter confirming Yang’s good character; an affidavit that the marriage was genuine from one of Yang’s friends; a statement from one of Prestin’s colleagues to the same effect; and Yang’s own affidavit explaining both the romance and the break-up of the marriage. Yang also explained that he had lived apart from Prestin solely because of the demands of his job. The delivery service’s tracking receipt showed that the package arrived at USCIS at 11:30 a.m. on July 24, 2011, three days before the deadline, and that the receipt was signed by an employee. Nonetheless, USCIS issued a final order denying Li’s I-130 application on the mistaken ground that she had failed to file a response to the Notice of Intent to Deny. Li appealed the denial to the BIA, pointing out the mistake of fact, and she included the receipt showing that USCIS had indeed received the responsive materials. The Board recognized the error and on April 30, 2013, it remanded the I-130 denial to the District Director. As far as we know, that is where it still is.

While the I-130 issues were percolating, Yang’s removal proceedings continued to progress. On July 30, 2012, Yang had his final merits hearing. At that time his attorney informed the IJ that Yang had not updated his fingerprints since September 23, 2010, even though he was required to do so for his asylum application. The attorney explained that Yang had tried to submit fingerprints from New York, but could not because the removal proceedings were out of state. (At oral argument, counsel asserted that the immigration authorities do not accept fingerprints from just anywhere, and so it can be difficult for someone to arrange for this seemingly straightforward task to be done.)

On July 12, 2012, Yang filed a motion to continue his hearing date until a time after the re-adjudication of Li’s I-130 petition (and a renewed petition she filed). But on July 30, 2012, the IJ issued a decision from the bench finding Yang removable, denying asylum and related relief, denying the requested continuance, and granting voluntary departure. Addressing the continuance, the IJ said that “the respondent has the right to appeal [USCIS's mistaken denial of Li's I-130 for lack of response but] [h]e has no right to delay his removal hearing until the appeal is adjudicated, which could last a number of years.” On November 27, 2013, the Board dismissed Yang’s appeal of the IJ’s decision and denied his motion for a remand to USCIS. The Board agreed with the IJ that Yang was barred from asylum for failing to file within a year of his arrival and failing to demonstrate extraordinary or changed circumstances warranting an exception. Yang was not entitled to withholding of removal, the Board confirmed, because the relatively mild events Yang had recounted were not enough to show that he had been persecuted in the past or that it was more likely than not that his life or freedom would be threatened in China upon his return. The Board also affirmed the IJ’s alternative ground for denying withholding, which was based on Yang’s failure to present updated “biometric requirements” (the fingerprints). The Board also rejected Yang’s CAT application. Finally, it found that the IJ acted within his discretion when he declined to grant the continuance, and it denied Yang’s request to remand the case to the IJ for further proceedings on the I-130 and I-485 forms that Yang had refiled. Despite the fact that the Board already had remanded the District Director’s denial of the I-130 petition to consider the evidence that Yang had properly submitted, it wrote that “such decision did not reverse the director’s denial of his visa petition.” In a footnote, the Board went out of its way to say that its decision was not one “on the merits of the [USCIS's] denial of the underlying I-130 visa petition.” The net result for Yang was an order of removal.

II

Yang has brought this bureaucratically messy case before us through his petition for review. In it, he challenges the denial of his asylum, withholding of removal, and CAT applications as well as the denial of his request for a continuance pending a final determination of the I-130 petition. We quickly dispose of the former arguments so that we can focus on the continuance.

Asylum Application

Asylum applications must be filed within one year after the date the seeker arrives in the United States. 8 U.S.C. § 1158(a)(2)(B). Yang filed for asylum in 2007, either eight or nine years after he arrived here from China. His application must be denied as untimely unless he demonstrates either the existence of changed circumstances that materially affect his eligibility for asylum or extraordinary circumstances relating to the delay in filing the petition, 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(4), (5). The IJ and Board found that he had not shown that he qualified for either exception to the one-year rule and thus denied his petition. Yang argues that they erred in so concluding.

Whether they were right or wrong is not, however, the immediate question before us. We can reach that issue only if we have jurisdiction to address it. Courts generally lack jurisdiction to review a determination that an asylum application is barred on the ground of noncompliance with the statutory time limit or the denial of one of the statutorily allowed excuses, 8 U.S.C. § 1158(a)(3). It is true that the REAL ID Act of 2005 supplies jurisdiction for review of constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D), added by the REAL ID Act of 2005, § 106(a)(1)(ii), Pub.L. No. 109-13, 119 Stat. 231, 310-11 (2005); see also Mabasa v. Gonzales, 455 F.3d 740, 744 (7th Cir. 2006). But there’s the rub. We have held that the issues of changed or extraordinary circumstances are questions of fact that lie outside the realm of § 1252(a)(2)(D). See, e.g., Viracacha v. Mukasey, 518 F.3d 511, 514-15 (7th Cir. 2008). We are aware that some circuits have concluded that these issues are reviewable mixed questions of law and fact, see, e.g., Mandebvu v. Holder, No. 11-3969, 2014 WL 2743608 at *6 (6th Cir. June 18, 2014); Vahora v. Holder, 641 F.3d 1038, 1042 (9th Cir. 2011). But others agree with us, e.g., Goromou v. Holder, 721 F.3d 569, 579-80 (8th Cir. 2013); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 331-32 (2d Cir. 2006). We are not inclined to change our approach and thus conclude that we have no jurisdiction to address Yang’s arguments based on changed or extraordinary circumstances.

Denial of Yang’s withholding of removal application

Under INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), the Attorney General must grant withholding of removal to an alien who shows that his “life or freedom would be threatened in that country of removal because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” To establish eligibility for withholding of removal, the applicant must show that it is more likely than not that he will face persecution in the country to which the government plans to remove him. See INS v. Stevic, 467 U.S. 407, 429-30 (1984). The Act does not define “persecution,” but we have described it as “‘punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate.’” Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir. 1995) (quoting De Souza v. INS, 999 F.2d 1156, 1158 (7th Cir. 1993)); see also Capric v. Ashcroft, 355 F.3d 1075, 1084 (7th Cir. 2004) (internal quotation marks and citations omitted) (persecution “includes detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, … torture, behavior that threatens the same, and non-life-threatening behavior such as torture and economic deprivation if the resulting conditions are sufficiently severe.”).

The IJ rejected Yang’s application for withholding of removal on two independent grounds, which the Board affirmed. First, the IJ found that Yang failed to establish that the Chinese authorities were aware or likely to become aware of his Falun Gong-related activities in the United States. Furthermore, the IJ found the contact between Yang’s father and Chinese police in 2012 was not enough to permit the inference that the Chinese authorities were “specifically aware” of his Falun Gong practices. The IJ also doubted that the Chinese government would punish its citizens for engaging in Falun Gong outside of China. In the alternative, the IJ found that Yang’s failure to comply with the biometrics requirement was an independent ground to reject his application. See 8 C.F.R. §§ 1003.47(c), (d), & 1208.10; see also Umezurike v. Holder, 610 F.3d 997, 1002 (7th Cir. 2010). We review the decision of the IJ as supplemented by the additional reasoning of the Board. Milanouic v. Holder, 591 F.3d 566, 570 (7th Cir. 2010). We must deny the petition if the IJ’s decision is supported by reasonable, substantial, and probative evidence on the record as a whole; we may reject the ruling only if the record compels a contrary result. See Mema v. Gonzales, 474 F.3d 412, 416 (7th Cir. 2007).

The IJ was not on solid ground when he found that there was no indication that the Chinese government was specifically aware of Yang’s practice of Falun Gong. According to Yang, whose account the IJ was willing to credit, police held him overnight and hit him in the face because of his Falun Gong activities before he left China. The Chinese police also went back to Yang’s father’s house in 2012 inquiring about whether Yang was involved in “anti-government” activities while in the United States. Nevertheless, we need not decide whether the IJ abused his discretion when he found to the contrary, because Yang has no satisfactory answer to his failure to comply with the biometrics requirement.

The applicable regulations do not make the submission of current fingerprints optional. They provide that “[f]ailure to comply with processing requirements for biometrics and other biographical information within the time allowed will result in dismissal of the application, unless the applicant demonstrates that such failure was the result of good cause.” 8 C.F.R. § 1208.10 (emphasis added). The IJ required Yang to submit several sets of fingerprints: one within two weeks of the master calendar hearing, and another within one year of any continued hearing. Yang did not do so. Even though we wonder why USCIS requires applicants continually to re-fingerprint and the government’s counsel had no explanation for this practice when asked at oral argument, we are not responsible for the wisdom or efficiency of the agency’s rules. The IJ expressly ordered multiple rounds of fingerprinting; Yang did not comply; and the regulations say such a failure will result in dismissal.

Although in theory someone might show good cause for a failure to submit required biometric data, Yang did not do so. He asserts only that he made “diligent efforts” and told the Trial Attorney Unit that USCIS had an earlier set of fingerprints. But simply stating that one made “diligent efforts” without further details is not enough, and we find it hard to see how Yang could prove diligence when he had at least two years to arrange for the new fingerprints. As Umezurike held, when counsel offers only “vague excuses for delay but no concrete explanations,” we will not find an abuse of discretion. See Umezurike, 610 F.3d at 1003.

Even if we were to reach the merits, Yang’s applications for withholding of removal and relief under the CAT cannot succeed. Neither of those is untimely, but the IJ and the Board did not abuse their discretion when they concluded that Yang’s one night in the police station and slaps were not sufficiently severe to warrant relief. See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A) (withholding of removal); 8 C.F.R. § 1208.16 (CAT).

Motion for continuance

We review the denial of a continuance for abuse of discretion. See Calma v. Holder, 663 F.3d 868, 876 (7th Cir. 2011). This is a deferential standard, under which we uphold the Board’s decision unless it “was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Id. at 878.

In Matter of Hashmi, 24 I. & N. Dec. 785, 790-91 (B.I.A. 2009), a precedential opinion, the Board discussed the factors an IJ should consider when deciding whether to grant a continuance. See also Calma, 663 F.3d at 872. “[D]iscretion should be favorably exercised,” it held, “where a prima facie approvable visa petition and adjustment application have been submitted in the course of an ongoing removal hearing. This presumption is reasonable given the significant interest at stake—the chance to acquire lawful permanent resident status through a family-based visa petition.” Hashmi, 23 I. & N. Dec. at 790. It offered the following non-exclusive checklist for continuance requests:

• The likelihood that the adjustment will be granted;

• USCIS’s response to the motion, though “unsupported opposition does not carry much weight,” id. at 791;

• Whether the underlying visa petition is prima facie approvable;

• The alien’s statutory eligibility for adjustment of status;

• Whether other aspects of the alien’s background (such as family ties in the United States, length of residence in the country, hardship of travel, and immigration history) merit a favorable exercise of discretion; and

• The reason for the continuance and which party is more responsible for the delay.

Most of the points on that list either favor Yang or are neutral. The final point is especially important in his case: the reason the continuance was needed was directly related to USCIS’s carelessness in losing the critical package of supporting materials that Yang and Li sent—materials that would have responded to the agency’s qualms about the Prestin marriage. The IJ elided the agency’s misstep entirely. He gave two reasons for denying the continuance: (1) the supposed fact that the second marriage had been shown to be a sham, and thus gave rise to a statutory bar to adjustment, and (2) the fact “that the [third] marriage occurred after the first merits hearing.” The Board said only that Yang’s visa petition “remains denied”—a point Yang obviously knew—without explaining why the removal proceeding could not, in these unusual circumstances, be coordinated with the measures taken to cure USCIS’s negligence.

The IJ’s second “reason” is actually just a statement of fact; he did not explain why the timing of the Li marriage required the denial of a continuance. No one has ever suggested that the Li marriage is a sham, and so that ground is not available to support the IJ’s decision. In fact, there is ample evidence in the record to support the genuineness of the Li marriage: Yang and Li had a five-year relationship before they married, and so this was not a last-minute liaison hatched after immigration proceedings began. The reason their marriage happened when it did was because it took Li a long time to extricate herself from her own prior marriage. On this record, the timing of Yang’s marriage to Li offers no support to the decision to deny the continuance. The IJ merely stated a fact without explaining why that fact was a reason for his ruling. Denial of a continuance on the basis of a non-reason is an abuse of discretion. See Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004).

This leads us to the IJ’s other reason for his ruling: the purportedly sham nature of Yang’s second marriage. But that was the issue that USCIS’s carelessness had prevented Yang from contesting. Yang and Li strenuously deny that allegation. Since the cause for the delay is attributable to the government and not Yang, it “augurs in favor of a continuance.” Hashmi, 23 I. & N. Dec. at 793.

Had the IJ taken the Board’s advice and moved through the Hashmi checklist, the ultimate decision on the continuance would have been better informed. In particular, the Board’s list effectively instructs the IJs to take a peek at the merits of the pending application before ruling. In this case, in assessing Yang’s likelihood of success (the first factor) the judge should have looked at Yang and Li’s response to USCIS’s sham-marriage allegation. See id. Had he done so, he would have found significant and credible evidence of the legitimacy of Yang’s second marriage. He would have seen, for example, the crucial role Yang played and plays as a stepfather to Prestin’s daughter, as explained by his step-daughter in sworn statements, and he would have found significant third-party confirmation that the marriage was real. Other aspects of Yang’s background, such as the role he plays in his family with Li, would also have illuminated the decision. See id.

Since neither of the reasons the Board relied on for the denial of the continuance withstands scrutiny, we are compelled to conclude that the decision stands unsupported by any reason. It thus represents an abuse of discretion, and Yang is entitled to one more chance to pursue this line of relief.

****

The IJ’s denials of Yang’s request for asylum, withholding of removal, and relief under the CAT were not an abuse of discretion and so we DENY his petition for review from those aspects of the Board’s decision. We conclude, however, that the IJ’s reasons for denying the continuance Yang requested, as supplemented by the Board, fail to confront the facts of this case and do not meet the standards the Board set for itself in Hashmi. We therefore Grant the petition for review on that point only and Remand the case to the Board for further proceedings consistent with this opinion.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, adjudication of I-130, Continuance, Motion for Continuance, withholding of removal | Leave a comment

CA7 Upholds Denial of Continuance for Petitioner with Multiple Traffic Violations

The court held that there was enough evidence before the IJ and BIA to conclude that petitioner lacked the good moral character necessary for cancellation, and that the outcome of the latest criminal proceeding was immaterial.

Bd. did not err in denying request by alien (citizen of Mexico) for cancellation of removal, where alien failed to satisfy good moral character requirement for seeking such relief. Record showed that alien had been found guilty of series of traffic offenses that included multiple driving under influence of alcohol convictions and driving without either valid or revoked license. Moreover, at time of instant removal proceeding, alien had been charged with four counts of aggravated driving under influence charges, and although IJ denied instant application during pendency of said charges, alien incurred no prejudice since he eventually pleaded guilty to said offenses. Ct. also rejected alien’s argument that IJ could not rule on request for cancellation of removal as long as alien had pending criminal charge.

Estrada, a Mexican citizen, entered the U.S. in 1996, at age 20, and has not left; he is married and has five children, all U.S. citizens. He was denied cancellation of removal, 8 U.S.C. 1229b(b), for failure to demonstrate “good moral character.” He had several traffic citations, including for driving in an “aggravated manner” after his license had been revoked; driving without a valid license, driving three times under the influence of alcohol, twice lacking required proof of financial responsibility; running a traffic light; disregarding a stop sign; failing to fasten his seat belt, and other violations. During removal proceedings, he was arrested and charged with eight traffic offenses, four of which involved “aggravated” driving under the influence. Despite continuances, those charges had not been resolved when the immigration judge ruled. The Board of Immigration Appeals affirmed. The Seventh Circuit denied review. The Board had enough evidence to make the latest criminal proceeding immaterial. The court characterized a defense argument as “a contention that as long as his client goes on violating the traffic laws, he can’t be removed—for even though his record gets worse and worse, there will always be some pending charges that the immigration judge must wait to see resolved before deciding whether to order him removed.“

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__________________

JOSE LUIS ORTIZ-ESTRADA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.

No. 13-2536

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

2014 U.S. App. LEXIS 12710
June 11, 2014, Argued
July 3, 2014, Decided

OPINION BY: POSNER Click for Enhanced Coverage Linking Searches

The petitioner, a Mexican citizen, entered the United States in 1996, when he was 20 years old, and has lived in this country ever since; he is married and has five children, all of whom are U.S. citizens. He admits that he is an illegal immigrant and can avoid removal only if he is granted cancellation of removal, 8 U.S.C. § 1229b(b), for which he applied in 2011 after being placed in removal proceedings. One of the requirements for cancellation of removal applicable to our petitioner is that he have lived continuously in the United States for at least 10 years prior to the filing of his petition for cancellation of removal, and another is that during that period he have been of “good moral character.” §§ 1229b(b)(1)(A), (B). In 2012 the immigration judge, seconded the following year by the Board of Immigration Appeals, ruled that the petitioner had flunked the second requirement.

By the time he was placed in removal proceedings in 2010 he had accumulated an impressive string of sanctions for a variety of traffic offenses committed in the previous decade. He had received a citation for violating traffic laws and driving in an “aggravated manner” after his license had been revoked. He had received citations for driving without a valid license, driving on three occasions under the influence of alcohol, driving with a revoked driver’s license and on another occasion with a revoked or suspended license, violating a license-revocation order, twice lacking required proof of financial responsibility, and running a traffic light. He had also received suspensions for disregarding a stop/yield sign, for failing to fasten his seat belt, and for his previous violations.

In 2011, with the removal proceeding still underway, he had again been arrested, and this time he was charged with eight traffic offenses, four of which involved “aggravated” driving under the influence. The immigration judge decided to continue (meaning, suspend) the removal proceeding until the new traffic charges were resolved. The petitioner’s lawyer hoped that critical prosecutorial evidence in the DUI case would be suppressed, compelling dismissal of the case.

Months passed. The continuance kept getting renewed in expectation of a resolution of the DUI case. But the immigration judge’s patience eventually ran out and he both refused a further continuance, even though the latest charges against the petitioner had still not been resolved, and, proceeding to the merits, denied cancellation of removal on the ground that the petitioner’s multiple traffic offenses demonstrated that he was not of good moral character; and so ordered him removed.

The immigration judge explained in his decision that “given the respondent’s lengthy record, not including a final disposition on the last driving under the influence case and the last court hearing, which is still pending in the criminal court in Chicago, this Judge believes that given the intervening precedent decisions by the Seventh Circuit in [Portillo-Rendon v. Holder, 662 F.3d 815 (7th Cir. 2011), and Banuelos-Torres v. Holder, 461 F. App'x 509 (7th Cir. 2012) (per curiam)] … the respondent lacks good moral character necessary to qualify for cancellation of removal.” At the oral hearing that preceded the issuance of his decision the immigration judge had said with reference to those two cases that “the Seventh Circuit Court of Appeals has affirmed the notion that an individual with a record like yours lacks good moral character to qualify for residence through cancellation of removal.”

That’s not correct, though both cases did involve aliens who were seeking cancellation of removal after having accumulated impressive records of violating this country’s traffic laws. But in Banuelos-Torres the only issue was whether the immigration judge had acted unreasonably in denying a continuance, and we held that he had not; the alien’s record of traffic violations was so bad that the immigration judge was rightly afraid of what further violations the alien might commit if left at large because of the continuance: “[he] poses a threat to the safety of the community.” 461 F. App’x at 512. And in Portillo-Rendon we held that because the Immigration and Nationality Act does not define “good moral character,” the decision whether an alien has such a character is an exercise of administration discretion that a court cannot review. 662 F.3d at 817.

But the immigration judge’s error was without consequence. The Board of Immigration Appeals “affirm[ed] [his] determination” that Ortiz-Estrada had not proved good moral character. It based the affirmance on “the extent and recidivist nature of [his] dangerous driving violations,” the fact that the immigration judge had “discussed [his] undisputed record of driving violations and criminal conduct spanning 10 years which also includes multiple DUI related charges,” and the absence of any “clear error in the Immigration Judge’s findings of fact.” The Board did not correct the immigration judge’s mistaken interpretations of our Portillo-Rendon and Banuelos-Torres decisions, but it didn’t have to; it said “we need not reach the other reasons identified in the Immigration Judge’s decision for his determination that [Ortiz-Estrada] lacked the requisite good moral character for relief.” By saying this, the Board implicitly disclaimed reliance on our two decisions.

It remains to consider the petitioner’s argument that the immigration judge’s abrupt refusal to grant a further continuance of the removal proceeding (to await the conclusion of the latest criminal prosecution) violated the petitioner’s procedural rights. Although a determination that the alien lacks “good moral character” is not subject to judicial review, 8 U.S.C. § 1252(a)(2)(B)(i), the Board and the immigration judge must, on pain of reversal if they don’t, respect the alien’s right to “a reasonable opportunity … to present evidence on [his] own behalf,” 8 U.S.C. § 1229a(b)(4)(B), though “in order to succeed in challenging the legality of such a hearing, the alien must show not only that [his or] her ‘reasonable opportunity’ was denied, but also that [he or] she was prejudiced.” Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir. 2007); see also Delgado v. Holder, 674 F.3d 759, 766 (7th Cir. 2012).

The petitioner argues that the immigration judge “failed to take into proper consideration all relevant factors in the instant case, including the differences [between] the Petitioner’s driving history [and that of the alien in Portillo-Rendon v. Holder, supra], Petitioner’s lack of a felony conviction [which Portillo-Rendon had had], Petitioner’s good faith efforts at rehabilitation which have not been refuted, and the fact that Petitioner’s latest pending charge against him may still be dismissed.” The first two points are irrelevant, given the Board’s decision not to give any weight to the immigration judge’s reliance on the Portillo-Rendon and Banuelos-Torres cases. The third point is immaterial, because it was argued to the immigration judge before he denied the further continuance sought by the petitioner. The fourth point could not have been material, for even if the petitioner had been acquitted of the 2011 traffic offenses, the immigration judge would have found him deficient in moral character, because the judge based that finding on the petitioner’s 2000-2010 offense record. Anyway he wasn’t acquitted. He pleaded guilty last November (five months after the Board’s decision) to “aggravated DUI” and driving with a suspended or revoked license. No. 13-2536

His lawyer argues that the immigration judge’s abrupt refusal to continue the removal proceeding prevented the lawyer from presenting evidence that would have cast his client’s moral character in a more favorable light. But his brief does not particularize the evidence, its emphasis being on the judge’s ruling on cancellation of removal before he outcome of the petitioner’s latest criminal proceeding could be known. The ruling was justified. The judge had enough evidence before him when he denied the further continuance to conclude that the petitioner lacked good moral character. And the Board when it affirmed the denial had enough evidence before it to come to the same conclusion, thus making the outcome of that latest criminal proceeding immaterial—and now that we know the outcome we know that the petitioner was not prejudiced by the immigration judge’s refusal to delay ruling on moral character.

The lawyer’s procedural argument amounts to a contention that as long as his client goes on violating the traffic laws, he can’t be removed—for even though his record gets worse and worse, there will always be some pending charges that the immigration judge must wait to see resolved before deciding whether to order him removed. Not a good argument.

The petition for review is Denied.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Cancellation of Removal, Continuance, Good Moral Character, Good Moral Character (GMC), Motion for Continuance | Leave a comment

CA7 finds retroactive application of “sought to acquire” of CSPA would be a manifest injustice

The Child Status Protection Act, 8 U.S.C. 1153(h), allows adult children of lawful permanent residents to maintain child status if their parent filed a visa petition on their behalf while they were under 21 and prevents such children from aging out of visa priority while their petition is under review. But an immigrant may take advantage of this provision only if he “sought to acquire the status of an alien lawfully admitted for permanent residence within one year” of a visa number becoming available. Velásquez is the adult child of a lawful permanent resident. In 2005, when Velásquez was 17, his father filed a visa petition on his behalf. Velásquez’s visa number became available in March 2011. Velásquez took steps to acquire permanent-resident status within one year, but did not file a formal application for permanent status until 14 months after his visa number became available. Later, the Board of Immigration Appeals adopted a new rule that required an immigrant to file or attempt to file a substantially complete application for permanent status within one year to satisfy the “sought to acquire” prerequisite. Because Velásquez had not done so, the Board ordered him removed. The Seventh Circuit remanded, finding the new interpretation of the Act’s ambiguous language to be reasonable, but holding that retroactive application works a manifest injustice in Velásquez’s case. Retroactive application of the one-year filing requirement would work a manifest injustice on Velásquez.

In Matter of O. Vasquez, 25 I&N Dec. 817 (B.I.A. 2012), the Board’s decision narrowly interpreted critical language in the Act—whether the alien “sought to acquire” within one year the status of a person lawfully admitted for permanent residence—to require that an immigrant make a fully compliant application for permanent residence or one with only technical defects within one year, unless exceptional circumstances prevented the immigrant from filing such an application. This decision departed sharply from three prior non-precedential Board decisions, which had required only a showing that the immigrant took “substantial steps” to acquire permanent status in order to qualify for the Act’s protection. An alien may satisfy the “sought to acquire” provision … by properly filing the application for adjustment of status with the [Department of Homeland Security]. Additionally, the alien may meet the requirement by establishing, through persuasive evidence, that an application he or she submitted to the appropriate agency was rejected for a procedural or technical reason or that there were other extraordinary circumstances, particularly those where the failure to timely file was due to circumstances beyond the alien’s control.

_______________________________________________________________________
JORGE ARGENIS VELÁSQUEZ-GARCÍA, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.
No. 13-2610.

United States Court of Appeals, Seventh Circuit.
Argued February 10, 2014.
Decided July 23, 2014.

Before WOOD, Chief Judge, HAMILTON, Circuit Judge, and KENDALL, District Judge.[*]

WOOD, Chief Judge.

The Child Status Protection Act, 8 U.S.C. § 1153(h) (the Act), allows the adult children of lawful permanent residents to maintain child status if their parent filed a visa petition on their behalf while they were still under 21. This provision, enacted in 2002, prevents such children from “aging out” of visa priority during the years in which their petition is under review by immigration authorities. But an immigrant may take advantage of this provision only if he “sought to acquire the status of an alien lawfully admitted for permanent residence within one year” of his visa number becoming available. Id. § 1153(h)(1)(A).

Jorge Argenis Velásquez-García (Velásquez) is the adult child of a lawful permanent resident. In 2005, when Velásquez was 17, his father filed a visa petition on his behalf. For our purposes, Velásquez’s visa number became available in March 2011. Although Velásquez took some steps to acquire permanent-resident status within one year of that date, he did not file a formal application for permanent status until May 2012, fourteen months after his visa number became available. Later yet, the Board of Immigration Appeals adopted a new rule in a case called Matter of O. Vasquez; the new rule required an immigrant to file or attempt to file a substantially complete application for permanent status within one year in order to satisfy the “sought to acquire” prerequisite of 8 U.S.C. § 1153(h)(1)(A). Because Velásquez had not done so, the Board found that he failed to meet the requirement and ordered him removed.

Although we find the Board’s new interpretation of the Act’s ambiguous language to be reasonable, we conclude that retroactive application of the new one-year filing rule works a manifest injustice in Velásquez’s case. We therefore remand to the Board for redetermination under the statutory interpretation in effect prior to the O. Vasquez decision.

I

Velásquez, born in Mexico in 1987, entered the United States without being admitted or paroled in 1994 when he was seven years old. In 2001, Velásquez’s father, a lawful permanent resident, filed on his behalf a Form I-130 petition, which seeks approval for eligible family members to apply for an immigrant visa or adjustment of residence status. Although properly filed, that petition was later deemed abandoned, unbeknownst to Velásquez or his father. In 2005, when Velásquez was 17 years old, his father filed another I-130 petition on his behalf. That petition was approved in 2009 when Velásquez was 22 years old. Approval put Velásquez in line to apply for permanent residence, which he could do only when an immigrant visa number became available to him.

Velásquez’s visa number became available on March 1, 2011 (after a period of visa “retrogression” that is irrelevant for our purposes, see Visa Retrogression, U.S. Citizenship & Immigration Services (June 14, 2011) http://www.uscis.gov/ green-card/green-card-processes-and-procedures/visaavailability-priority-dates/visa-retrogression) (last visited July 23, 2014)). About two weeks later, Velásquez visited an attorney to inquire about his status and to inform the attorney that he wanted to apply for his “green card.” A week later, Velásquez retained the attorney to investigate his eligibility for permanent residence. The attorney filed a Freedom of Information Act (FOIA) request with the U.S. Citizenship & Immigration Services (CIS), seeking information about “[a]ll I-130 applications and approval notices” relating to Velásquez. Six months later, in September 2011, CIS sent the attorney documents indicating that Velásquez’s first I-130 petition had been “denied due to abandonment.” The abandoned petition was nevertheless important because it enabled Velásquez to qualify for certain amnesty provisions enacted in the 2006 amendments to the immigration laws. See 8 U.S.C. § 1255(i). CIS’s response did not mention that Velásquez had only months left to apply for permanent status before losing priority as a resident’s child.

After receiving the FOIA response, the attorney met with Velásquez to discuss adjusting his status. But according to the attorney, “nothing became more solid or concrete.” Velásquez later told an immigration judge that he intended to apply for permanent status, but he was “just trying to get the money together” to pay the myriad costs and fees associated with changing status. No one informed either Velásquez or his father about any filing deadline, for reasons we detail below. Meanwhile, Velásquez caught the attention of immigration officials as the result of two misdemeanor infractions: a conviction in 2007, at the age of 20, for simple possession of marijuana, and a guilty plea in January 2012 to a charge of driving under the influence (DUI), for which he served 15 days in county jail.

Upon his release from jail on February 15, 2012, Velásquez was immediately taken into immigration custody and served with a Notice to Appear for removal proceedings. The Notice to Appear was filed with the immigration court on March 8. It charged that he was removable as an alien convicted of a controlled-substance offense and as an alien present in the country without being admitted or paroled. Velásquez did not contest the grounds for his removability. In late February, Velásquez’s retained counsel unsuccessfully requested his release on bond. At the first hearing in immigration court on April 19, the judge set a May 17 deadline for Velásquez to file an application for permanent status. Velásquez filed the application on May 10, a week before the court-imposed deadline but about fourteen months after his visa number became available.

On June 8, 2012, more than three months after Velásquez’s one-year statutory deadline had passed, the Board of Immigration Appeals decided Matter of O. Vasquez, 25 I&N Dec. 817 (B.I.A. 2012). The Board’s decision in O. Vasquez narrowly interpreted critical language in the Act—whether the alien “sought to acquire” within one year the status of a person lawfully admitted for permanent residence—to require that an immigrant make a fully compliant application for permanent residence or one with only technical defects within one year, unless exceptional circumstances prevented the immigrant from filing such an application. This decision departed sharply from three prior non-precedential Board decisions, which had required only a showing that the immigrant took “substantial steps” to acquire permanent status in order to qualify for the Act’s protection. See In re Murillo, No. A099 252 007, 2010 WL 5888675 (B.I.A. Oct. 6, 2010); In re Castillo-Bonilla, No. A98 282 359, 2008 WL 4146759 (B.I.A. Aug. 20, 2008); In re Ji Young Kim, No. A77 828 503, 2004 WL 3187209 (B.I.A. Dec. 20, 2004). The Eleventh Circuit (the only court of appeals to consider these decisions) elected to follow their approach in Tovar v. U.S. Att’y Gen., 646 F.3d 1300, 1304-05 (11th Cir. 2011).

II

Referring to the O. Vasquez decision, the immigration judge determined that Velásquez failed to meet the Child Status Act’s “sought to acquire” prerequisite because he did not file an application for permanent residence during the one-year window. On remand from the Board, the immigration judge found that Velásquez’s incarceration and pending removal proceedings were not extraordinary circumstances that excused his late filing. Velásquez was ordered to be removed to Mexico, where he had not lived since he was seven years old. The removal order became final on June 25, 2013, when the Board dismissed Velásquez’s appeal. Velásquez then petitioned for review of the order in this court.

Velásquez, along with the American Immigration Council as amicus curiae, attacks the Board’s decision in O. Vasquez on a number of fronts. While they make some good points, we do not approach the question on a clean slate. In light of the deference we owe the Board’s interpretation of ambiguous immigration statutes, we must uphold the Board’s reading of the statute if it meets the criteria established in Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Yet even if O. Vasquez is entitled to Chevron deference, we are not finished. Such a conclusion would require us to resolve the distinct question whether the O. Vasquez one-year filing rule must be applied retroactively. We now turn to those two inquiries.

III

Chevron requires us to defer when a statute is ambiguous and the agency charged with administering the statute promulgates a reasonable interpretation using sufficiently formal procedures. Arobelidze v. Holder, 653 F.3d 513, 518-19 (7th Cir. 2011). The Board is considered an agency in charge of administering the Immigration and Naturalization Act (INA). Zivkovic v. Holder, 724 F.3d 894, 897 (7th Cir. 2013). As the Child Status Protection Act is an amendment to the INA, “the [Board] is entitled to deference in interpreting [its] ambiguous provisions.” Negusie v. Holder, 555 U.S. 511, 516 (2009); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (“[T]he [Board] should be accorded Chevron deference as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication[.]“) (internal quotation omitted). Even so, we must “reject administrative constructions which are contrary to clear congressional intent.” Chevron, 467 U.S. at 843 n.9.

Velásquez’s opening position is that the phrase “sought to acquire” in the Act is unambiguous. But exactly how an immigrant must seek to acquire the status of a permanent resident within one year of eligibility is not clear from the statute. Which of the following, for example, constitutes “seeking to acquire” permanent status: hiring an attorney, consulting an attorney, earning money to pay for the application, contacting immigration officials about one’s status, telling an acquaintance about one’s intent to seek permanent status, telling an official about one’s intent, mailing in a complete application, mailing in an application in which a signature line was left blank, or providing an attorney with a completed application? The statute does not say whether these or myriad other actions would be sufficient. Congress left it up to the agency to decide what suffices to demonstrate that the alien has sought to acquire permanent status. When a statute contains “any gap left, implicitly or explicitly, by Congress, the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program.” INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987) (internal quotation omitted).

The phrase “sought to acquire” is not a term with a wellestablished legal significance. Cf. Morissette v. United States, 342 U.S. 246, 250 (1952) (“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey in the judicial mind unless otherwise instructed.”). Variants of the phrase appear here and there in the U.S. Code, but we cannot discern any consistent meaning among them. E.g., 7 U.S.C. § 3362(b)(3); 16 U.S.C. § 396f; 50 U.S.C. § 2367(b)(5). We thus find no fault in the Board’s conclusion that the phrase “sought to acquire” is “sui generis in the Act and is not a legal term of art in applicable regulations or administrative or judicial decisions.” O. Vasquez, 25 I&N Dec. at 819.

Velásquez’s efforts to define the term only highlight its ambiguity. At oral argument, Velásquez’s counsel suggested that an immigrant would satisfy the “sought to acquire” requirement if the immigrant “surfaced” within one year and could prove it. We fail to see how that explanation makes matters any more clear, much less why that interpretation is compelled by the statutory language. Velásquez’s reference to the dictionary definition of “seek” is similarly unrevealing. One dictionary tells us the word may mean: “1. To try to find or discover: search for. 2. To try to obtain or reach. 3. To go to or toward … 4. To ask for: request. 5. To try: endeavor. 6. Obs[olete]. To explore.” WEBSTER’S II: NEW RIVERSIDE UNIVERSITY DICTIONARY 1056 (1994). Which of these six meanings should one choose? The statute does not say. Worse, it does not speak only of seeking something; it also uses the word “acquire,” which is no more clear in this context. We see no need to belabor the point: the phrase “sought to acquire” is one that is ambiguous enough to satisfy the first step of Chevron.

This takes us to step two, in which we must decide whether the Board has offered a reasonable interpretation. If so, its understanding must prevail, even if we might have preferred a different approach. See Holder v. Martinez Gutierrez, 132 S. Ct. 2011, 2017 (2012); Negusie, 555 U.S. at 517; see also Emergency Servs. Billing Corp., Inc. v. Allstate Ins. Co., 668 F.3d 459, 466 (7th Cir. 2012); Chevron, 467 U.S. at 842. We assess the reasonableness of the Board’s interpretation “in light of the legislative history, the purpose of the statute, and comparative statutes.” Emergency Servs., 668 F.3d at 466.

The Board filled the statutory gap with the following rule:

[A]n alien may satisfy the “sought to acquire” provision … by properly filing the application for adjustment of status with the [Department of Homeland Security]. Additionally, the alien may meet the requirement by establishing, through persuasive evidence, that an application he or she submitted to the appropriate agency was rejected for a procedural or technical reason or that there were other extraordinary circumstances, particularly those where the failure to timely file was due to circumstances beyond the alien’s control.

O. Vasquez, 25 I&N Dec. at 823. Under this rule, immigrants subject to the Act normally will know what is required of them: file an application within one year of visa eligibility, unless extraordinary circumstances prevent this step. (What they may not know is which flaws will be considered minor enough to qualify as procedural or technical glitches.)

The Board hoped that its rule would, in the normal run of cases, provide clarity and consistency for immigration courts. Id. at 821 (“Interpreting the statute in this manner … `promotes consistency and predictability, which are important principles in immigration law.’”) (quoting Matter of C-T-L-, 25 I&N Dec. 341, 347 (B.I.A. 2010)). We cannot say the Board acted unreasonably in coming to the conclusion that a simple one-year filing requirement, with limited exceptions, better serves the goal of uniformity than the more nebulous “substantial steps” test it rejected.

This is true even if we accept, as Velásquez and amicus curiae urge, that the Board’s interpretation frustrates the Act’s purpose to prevent the adult children of permanent residents from “aging out” and to keep families together. That may aptly describe Congress’s broader statutory purpose for the Act, see Tovar, 646 F.3d at 1304, but Congress saw fit to limit the Act’s reach to those immigrants who “sought to acquire the status of an alien lawfully admitted for permanent residence within one year.” 8 U.S.C. § 1153(h)(1)(A). In other words, this statute, like most, balances competing desiderata. In a system in which only a limited number of visas are made available at any given time, see 8 U.S.C. § 1152(a), and petitioners often wait years for a visa, the Act’s one-year limitation allows unused visas to be recaptured and reallocated to others awaiting such visas. As the Board is entrusted to administer the statute, we defer to its judgment.

IV

The more difficult question before us is whether the O. Vasquez rule should have been applied retroactively to Velásquez, even though his one-year period expired months before O. Vasquez was decided. We review determinations about the retroactive effect of legal rules de novo without giving any deference to the agency on that question. Zivkovic, 724 F.3d at 898-900; see also INS v. St. Cyr, 533 U.S. 289, 320 n.45 (2001).

As a general rule, “[r]etroactivity is not favored in the law.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). The Supreme Court has explained that this aversion to retroactive rulemaking

is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. For that reason, the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal human appeal.

Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994) (internal quotation and citations omitted). In the immigration context, the reluctance to impose rules retroactively is “buttressed by `the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien.’” St. Cyr, 533 U.S. at 320 (quoting Cardoza-Fonseca, 480 U.S. at 449).

A rule is considered to be retroactive when it “attaches new legal consequences to events completed before its enactment.” Landgraf, 511 U.S. at 270. The inquiry “demands a commonsense, functional judgment” and “should be informed and guided by familiar considerations of fair notice, reasonable reliance, and settled expectations.” Martin v. Hadix, 527 U.S. 343, 357-58 (1999) (internal quotation omitted); see also Landgraf, 511 U.S. at 270 (“[R]etroactivity is a matter on which judges tend to have `sound instincts[.]‘”) (quoting Danforth v. Groton Water Co., 59 N.E. 1033, 1034 (Mass. 1901) (Holmes, J.)). Justice Story provided the classic formulation: a legal rule has retroactive effect when it “`takes away or impairs vested rights acquired under existing laws, or creates new obligations, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.’” St. Cyr, 533 U.S. at 321 (quoting Soc’y for Propagation of Gospel v. Wheeler, 22 F. Cas. 756, 767 (C.C.D.N.H. 1814) (Story, J.)). As applied to Velásquez, the Board’s decision in O. Vasquez has retroactive effect because it created a new obligation—the duty to file a visa petition within one year, rather than merely take substantial steps toward filing —after Velásquez’s one-year filing window had already expired.

The appropriate standard for determining whether a legal rule may be applied retroactively depends on the source of the rule. For statutory rules, courts presume that a rule lacks retroactive effect “absent clear congressional intent favoring such a result.” Landgraf, 511 U.S. at 280; see also Vartelas v. Holder, 132 S. Ct. 1479, 1491 (2012) (“The operative presumption, after all, is that Congress intends its laws to govern prospectively only.”) (citation and quotation omitted). The Landgraf analysis applies equally to administrative rules, except that in the latter case the court asks “whether Congress has expressly conferred power on the agency to promulgate rules with retroactive effect and, if so, whether the agency clearly intended for the rule to have retroactive effect.” Durable Mfg. Co. v. U.S. Dep’t of Labor, 578 F.3d 497, 503 (7th Cir. 2009). Such legislative and quasi-legislative rules are presumed not to have retroactive effect because the enacting authorities’ “responsivity [sic] to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals.” St. Cyr, 533 U.S. at 315 (quoting Landgraf, 511 U.S. at 266); see also Stephen H. Legomsky, Fear and Loathing in Congress and the Courts: Immigration and Judicial Review, 78 TEX. L. REV. 1615, 1626 (2000) (observing that, because noncitizens cannot vote, they are particularly vulnerable to adverse legislation).

The presumption against retroactive application of legal rules is reversed, however, in the special case where a court furnishes the new rule. See Harper v. Va. Dep’t of Tax., 509 U.S. 86, 97 (1993) (“When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.”). (It is an open question whether Harper leaves anything of the three-part test for retroactivity of judicial rules established in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). See Nunez-Reyes v. Holder, 646 F.3d 684, 690-91 (9th Cir. 2011); Kolkevich v. Att’y Gen. of U.S., 501 F.3d 323, 337 n.9 (3d Cir. 2007); Fairfax Covenant Church v. Fairfax Cnty. Sch. Bd., 17 F.3d 704, 710 (4th Cir. 1994); Glazner v. Glazner, 347 F.3d 1212, 1216-17 (11th Cir. 2003) (en banc); Hulin v. Fibreboard Corp., 178 F.3d 316, 333 (5th Cir. 1999). But we have no cause to consider that question in this case.) The reasons that judicial decisions are treated differently are rooted in the differences between judicial and legislative institutions. See Harper, 509 U.S. at 107 (Scalia, J., concurring) (“`[T]he province and duty of the judicial department [is] to say what the law is,’ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)—not what the law shall be.”) (citation omitted); see also Rivers v. Rdwy. Exp., Inc., 511 U.S. 398, 312-13 (1994).

In principle, one might wonder where agency adjudications in which rules are announced fit into this framework, given their blended legislative and judicial character. The Board (like the National Labor Relations Board) is a policymaking institution capable of “announcing new principles in an adjudicative proceeding rather than through notice-and-comment rulemaking.” Negrete-Rodriguez v. Mukasey, 518 F.3d 497, 503 (7th Cir. 2008) (citing SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)). It is the Board’s status as an agency that earns it the Chevron deference we have given to its interpretation of the INA. But precisely because it is an agency, we join the Ninth Circuit in rejecting “the government’s position that the [Board], as the authoritative interpreter of an ambiguous statute, has issued an interpretation … that is comparable to a judicial construction of a statute and is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” Garfias-Rodriguez v. Holder, 702 F.3d 504, 515 (9th Cir. 2012) (en banc) (internal quotation omitted). Rather, as we would with any agency rule, we start from the premise that the Board “may not apply a new rule retroactively when to do so would unduly intrude upon reasonable reliance interests.” Negrete-Rodriguez, 518 F.3d at 503-04 (internal quotation omitted). The only exception is retroactive application to the litigant whose case gave rise to the new rule: that person had an opportunity to present argument to the agency and ran the risk that the agency would use his case to announce a rule. For others, however, a new agency rule announced by adjudication is no different from a new agency rule announced by notice-and-comment rulemaking, for purposes of retroactivity analysis.

To evaluate whether a new legal rule adopted in an agency adjudication may be applied retroactively to strangers to the case, we apply the same test as our sister circuits. See NLRB v. Wayne Transp., 776 F.2d 745, 751 n.8 (7th Cir. 1985); Retail, Wholesale & Dep’t Store Union v. NLRB, 466 F.2d 380, 390 (D.C. Cir. 1972) (Retail, Wholesale); Clark-Cowlitz Joint Op. Agency v. FERC, 826 F.2d 1074, 1081 (D.C. Cir. 1987) (en banc) (“[Retail, Wholesale] provides the framework for evaluating retroactive application of rules announced in agency adjudications.”); Garfias-Rodriguez, 702 F.3d at 518 (discussing the test to be applied in “the situation when a new administrative policy is announced and implemented through adjudication”) (quotation omitted); McDonald v. Watt, 653 F.2d 1035, 1042 (5th Cir. 1981). This approach strives to balance the adjudicative and policymaking functions of administrative agencies. “The general principle is that when as an incident of its adjudicatory function an agency interprets a statute, it may apply that new interpretation in the proceeding before it. … [But] a retrospective application can properly be withheld when to apply the new rule to past conduct or prior events would work a manifest injustice.” Clark-Cowlitz, 826 F.2d at 1081 (quotation omitted).

Courts consider a number of factors in assessing whether retroactive application of a rule is manifestly unjust, including the following:

(1) Whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from wellestablished practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.

Wayne Transp., 776 F.2d at 751 n.8 (quoting Retail, Wholesale, 466 F.2d at 390); see also Negrete-Rodriguez, 518 F.3d at 504. Like most such unweighted multi-factor lists, this one serves best as a heuristic; no one consideration trumps the others. With that in mind, we look to see what insight these considerations offer for Velásquez’s case.

The first point in our list asks whether the particular case is one of first impression. The term “first impression” as used in this context, however, is misleading “insofar as it differs from the more typical understanding of the term as referring to situations in which an agency confronts an issue that it has not resolved before.” Clark-Cowlitz, 826 F.2d at 1082 n.6. In this context, as we noted earlier, a rule is more likely to apply “retroactively” in the case where it is first announced (that is, to the parties involved in that case) than in later cases in which it might apply to conduct of others that took place before its announcement. Id. Bearing that in mind, we have no quarrel with the application of the O. Vasquez rule to O. Vasquez himself. That was the case of “first” impression, and O. Vasquez never appealed the Board’s decision, so no court ever had the chance to pass on the retroactivity of the rule in his case. If a court had considered his case, it is possible that a full analysis under the rest of the Retail, Wholesale framework might have pointed to retroactive application of the rule. Unlike Velásquez, who promptly consulted an attorney, retained the attorney, filed a FOIA request related to his quest for permanent status, and submitted a complete application soon after immigration authorities gave him a deadline for doing so, O. Vasquez did nothing more than consult a notary (through his parents) about the possibility of filing an application. See O. Vasquez, 25 I&N Dec. at 2. We can assume, therefore, that for several reasons retroactive application of the one-year filing rule was appropriate in O. Vasquez’s case. That does not mean, however, that the same is necessarily true for Velásquez.

The pertinent question is whether the new rule may be applied retroactively in later cases (that is, in cases that propose to apply the newly announced rule to persons who were not involved in the case of first impression) against persons like Velásquez, who had no notice that the rules were about to change and who may have relied on the former legal regime. See Garfias-Rodriguez, 702 F.3d at 520-21. The timing of the announcement of the O. Vasquez rule, we conclude, militates against retroactive application. In Velásquez’s case, the government did not challenge any established doctrines, but instead sought to have the new O. Vasquez rule retroactively applied against Velásquez even though Velásquez’s earlier conduct may well have satisfied the legal requirements in effect at the time he took those steps. That is exactly the kind of “second impression” case that the first point in the D.C. Circuit’s Retail, Wholesale list suggests should not apply the new rule retroactively.

The second and third considerations mentioned in the list are closely intertwined. The second asks whether the new rule represents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of law. The third examines the extent to which the party against whom the new rule is applied may have relied on the former rule. These considerations “require[] the court to gauge the unexpectedness of a rule and the extent to which the new principle serves the important but workaday function of filling in the interstices of the law.” Clark-Cowlitz, 826 F.2d at 1082; Garfias-Rodriguez, 702 F.3d at 521 (favoring retroactivity “if a party could reasonably have anticipated the change in the law such that the new requirement would not be a complete surprise”) (quotation omitted). In short, “the longer and more consistently an agency has followed one view of the law, the more likely it is that private parties have reasonably relied to their detriment on that view.” Clark-Cowlitz, 826 F.2d at 1082-83. Importantly, the critical question is not whether a party actually relied on the old law, but whether such reliance would have been reasonable. See Vartelas, 132 S. Ct. at 1491 (“Although not a necessary predicate for invoking the antiretroactivity principle, the likelihood of reliance on prior law strengthens the case for reading a newly enacted law prospectively”) (emphasis added).

The answers to these questions also point against retroactive application of the one-year filing requirement established in O. Vasquez. Although O. Vasquez was the first precedential Board decision directly to interpret the Act’s “sought to acquire” language, it broke new ground. Up to that time, guidance all pointed toward an understanding of “sought to acquire” that called only for substantial steps to be taken. See In re Murillo, supra, 2010 WL 5888675, at *4 (“Congress intended that the alien must make an attempt to get or obtain status as a lawful permanent resident within 1-year [sic] of such eligibility, lesser actions than contemplated by use of the terms `file,’ `submit,’ and `apply’”) (quotation omitted); In re Ji Young Kim, supra, 2004 WL 3187209, at *3 (reversing immigration judge’s ruling that immigrant failed to comply with statute because application not filed within one year); In re Castillo-Bonilla, supra, 2008 WL 4146759, at *2; see also Tovar, 646 F.3d at 1305 (“We find the BIA’s reasonable interpretation in these cases to be persuasive and in sync with the intent of Congress in enacting the Act. Hence, we conclude that Congress’s use of the term `sought to acquire’ in the Act is broad enough to encompass substantial steps taken toward the filing of the relevant application during the relevant time period, but does not require that the alien actually file or submit the application.”).

Before O. Vasquez, neither the Board nor any court had interpreted the “sought to acquire” language of the Act to require a petitioner to file his visa application within one year. In an effort to counter this unfavorable fact, the government directs us to two Board decisions that purportedly construe “sought to acquire” to mean “file” or “apply.” See In re Cheryl Tan Fernandez, No. A75 475 621, 2005 WL 1848352 (B.I.A. May 6, 2005) (per curiam); In re Xiuyu Wang, 25 I&N Dec. 28 (B.I.A. 2009). Neither case, in our view, goes this far. In Wang, the Board expressly stated that it would “not address the question” whether the petitioner’s failure to file a visa petition within one year barred application of the Act. Id. at 33. Similarly, in Fernandez, the Board did not reach the question because the petitioner took no steps to acquire permanent status for over five years after becoming eligible. 2005 WL 1848352, at *1. In O. Vasquez itself, the Board cited no prior cases in support of its interpretation of “sought to acquire,” although it professed without elaboration that “other unpublished Board decisions [] interpreted `sought to acquire’ more restrictively.” 25 I&N Dec. 817 at 822.

In light of the state of the law at the critical time, a reasonable person reasonably could have assumed that the Act did not require him or her to file an application within one year. Before the sea change in O. Vasquez in 2012, which occurred too late for Velásquez to comply with it, the “substantial test” steps had been consistently applied to the “sought to acquire” language in the Act since 2004. Cf. Garfias-Rodriguez, 702 F.3d at 522 (applying rule retroactively where prior rule in effect for 21 months, during which time petitioner took no action in reliance); Clark-Cowlitz, 826 F.2d at 1083-84 (applying rule retroactively where previous rule was in place for six months, during which time it was “beclouded” by possibility of being overturned on appeal). The Board’s new one-year filing rule in O. Vasquez did not merely fill a void “in the interstices of the [statute],” Retail, Wholesale, 466 F.2d at 391 (quoting Chenery, 332 U.S. at 202-03); rather, the new one-year filing rule reflected a shift in position “solely as a result of a change in agency policy,” Clark-Cowlitz, 826 F.2d at 1083. In such a case, retroactive application is disfavored.

It is also worth noting that the state of the law at the time of his application makes it virtually impossible for Velásquez to claim ineffective assistance of his retained counsel for failing to advise him to file an application before his one-year window expired. See In re Compean, 25 I&N Dec. 1, 1-2 (B.I.A. 2009) (reinstating standards for reviewing motions to reopen deportation proceedings based on claims of ineffective assistance). Recall that Velásquez met with an attorney to discuss obtaining his “green card” within weeks of becoming eligible for permanent status, retained the attorney to investigate his eligibility, and allowed the attorney to file a FOIA request on his behalf to that end. When the immigration judge provided Velásquez with a filing deadline during his deportation proceedings (itself a clear sign that no one-year filing deadline then-existed), he diligently complied with it, submitting his application a week early. Until O. Vasquez appeared, competent counsel might have considered such steps to be substantial moves toward acquiring permanent status, and might not have recognized that the application itself had to be submitted within one year.

The fourth Retail, Wholesale inquiry concerns how much of a burden a retroactive order would impose on a party. For Velásquez, that burden is immense: he faces removal from the only country he has called home since he was seven years old. Courts have long recognized the obvious hardship imposed by removal. E.g., St. Cyr, 533 U.S. at 322 (“Preserving the [immigrant]‘s right to remain in the United States may be more important to the [immigrant] than any potential jail sentence.”) (quotation omitted); Vartelas, 132 S. Ct. at 1487 (explaining that the Court has “several times recognized the severity of [the] sanction” of deportation); Padilla v. Kentucky, 559 U.S. 356, 369 (2010); Miguel-Miguel v. Gonzales, 500 F.3d 941, 952 (9th Cir. 2007) (“[D]eportation alone is a substantial burden that weighs against retroactive application of an agency adjudication.”). Non-retroactivity will not impose undue costs on the United States, because few petitioners will be similarly situated to Velásquez, either from the standpoint of timing or that of reliance. The fourth consideration identified by Retail, Wholesale thus also favors Velásquez. See Garfias-Rodriguez, 702 F.3d at 523.

Finally, we are advised to assess the statutory interest in applying the new rule despite the reliance of a party on the old standard. Often, this will “point[] in favor of the government because non-retroactivity impairs the uniformity of a statutory scheme, and the importance of uniformity in immigration law is well established.” Id. Here, however, the general interest in uniformity must be assessed in light of the broader statutory purpose of the Act to “provide[] age-out protection for derivative child beneficiaries adversely affected by administrative delays in the adjudication of immigrant petitions.” Tovar, 646 F.3d at 1304. The eight years it took the Board to redefine what the Act’s “sought to acquire” language requires is an administrative delay. Retroactively applying the Board’s new interpretation of the Act against Velásquez would squarely contradict the purpose of the statute.

In sum, our analysis persuades us that this is a case “where the [agency] had confronted the problem before, had established an explicit standard of conduct, and now attempts to punish conformity to that standard under a new standard subsequently adopted.” Retail, Wholesale, 466 F.2d at 391. We conclude that retroactive application of the O. Vasquez one-year filing requirement would work a manifest injustice on Velásquez.

V

Because retroactive application of the O. Vasquez rule on Velásquez is manifestly unjust, we GRANT the petition for review and REMAND to the Board for determination whether Velásquez took “substantial steps” to acquire permanent status within one year of his eligibility, as provided by the standard in effect prior to O. Vasquez.

[*] Honorable Virginia M. Kendall, District Judge of the United States District Court for the Northern District of Illinois, sitting by designation.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Child Status Protection Act, CSPA, CSPA Formulas for Calculating Age | Leave a comment

CA7 finds alien’s continuous presence in the United States ends upon the service of a Notice to Appear on the alien, even if that notice is missing the date and time of the initial hearing.

An alien otherwise inadmissible can be eligible for cancellation of removal if, among other things, he establishes that he “has been physically present in the United States for a continuous period of at least ten (10) years immediately preceding the date of such application, among other requirements set forth at 8 U.S.C. 1229b. Under the so-called stop-time rule, continuous residence is deemed to end when an alien has been served a Notice to Appear under 8 U.S.C. 1229. 8 U.S.C. § 1229b(d)(1), which provides that an alien’s “continuous physical presence in the United States shall be deemed to end … when the alien is served a notice to appear under section 1229(a) of this title”; and 8 U.S.C. § 1229(a)(1), which lists the information that must be included in a Notice to Appear.

CA7 finds the phrase “notice to appear under section 1229(a)” as referring to the type of document that triggers the stop-time rule, not as requiring perfect compliance with § 1229(a)(1)

CA7 finds that an alien’s continuous presence in the United States ends upon the service of a Notice to Appear on the alien, even if that notice is missing the date and time of the initial hearing.

Wang, a native and citizen of China (Fujian Province), was smuggled into the United States Virgin Islands on September 27, 1999; he was 21 years old at the time. Within two days of his arrival, immigration authorities discovered him and took him into custody. He was personally served on that date with a Notice to Appear that ordered him to appear in the immigration court in New Orleans at a “[t]ime and date to be set later.”

Over the next 10 years, Wang remained in the United States and avoided the attention of the immigration authorities. In 2009 he married a Chinese citizen and eventually had two children with her. In October of that year he voluntarily returned to immigration court and moved to recalendar his proceedings. At a hearing in March 2010, Wang admitted the charges in the Notice to Appear and conceded removability, but stated that he was pursuing a U Visa and planned to seek asylum and relief under the Convention Against Torture. (A U Visa is available to noncitizen victims of certain crimes who “have been or are likely to be helpful to authorities in investigating or prosecuting that crime.” L.D.G. v. Holder, 744 F.3d 1022, 1024 (7th Cir. 2014); see 8 U.S.C. §§ 1101(a)(15)(U), 1184(p).) Wang believed that he was eligible for the visa as a victim of human trafficking. See 8 U.S.C. § 1101(a)(15)(U)(iii). Before it could be resolved, his case was transferred to the immigration court in Chicago; that court held a hearing in March 2011. Immigration Judge Carlos Cuevas ordered the case continued for 20 months until November 2012 to allow Wang to continue pursuing a U Visa and to decide what other relief he would be requesting. The IJ explained that if the U Visa were denied in the meantime, Wang should “come in with some other form of relief” and that the lengthy continuance would give Wang time to get “everything in order.” IJ rejected the request as a “delay tactic,” especially in light of the lengthy continuance that he already had granted. Wang then testified to his version of events. He described how he was smuggled into the country and, after being released on bond, was locked up and beaten by his smugglers for two and a half months. He asserted that the smugglers threatened to harm his family in China if he went to the police. Wang’s counsel then renewed his motion for a continuance to file an asylum application. The IJ denied the motion and ordered Wang removed.

_________________________________________________________

YI DI WANG, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.
No. 14-1176.

United States Court of Appeals, Seventh Circuit.
Argued July 8, 2014.
Decided July 6, 2014.

Before Wood, Chief Judge, and BAUER AND HAMILTON, Circuit Judge.

WOOD, Chief Judge.

In order to be eligible for cancellation of removal, a nonpermanent resident alien must have accrued 10 years of continuous physical presence in the United States. That presence, however, is deemed to end “when the alien is served a Notice to Appear under section 1229(a)” of the Immigration and Nationality Act (INA). See 8 U.S.C. § 1229b(b)(1)(A), (d)(1). In this petition for review, we must decide whether a notice that does not specify a particular time and date for the alien’s initial hearing nonetheless suffices for purposes of this “stop-time” rule. The Board of Immigration Appeals has already answered that question in the affirmative, in its precedential decision in Matter of Camarillo, 25 I & N Dec. 644 (BIA 2011). We conclude that its interpretation is entitled to deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), and so we deny the petition for review filed by Yi Di Wang.

I

Wang, a native and citizen of China (Fujian Province), was smuggled into the United States Virgin Islands on September 27, 1999; he was 21 years old at the time. Within two days of his arrival, immigration authorities discovered him and took him into custody. He was personally served on that date with a Notice to Appear that ordered him to appear in the immigration court in New Orleans at a “[t]ime and date to be set later.” (There is no immigration court in the U.S. Virgin Islands. See EOIR Immigration Court Listing, http://www.justice.gov/eoir/sibpages/ICadr.htm (last visited July 16, 2014).) The authorities then transported Wang to a detention facility in New Orleans. Wang was released on $15,000 bond, at which time he provided an address in North Carolina as his residence.

In the course of the 1999 proceedings, the immigration court twice attempted to inform Wang of the date and time of his hearing. While he was in custody in New Orleans, the immigration court sent him via FedEx a “notice of hearing” setting a date and time for a video hearing. After his release on bond, the court sent a second notice of hearing—this time to the North Carolina address he had furnished—setting a different date and time. Although Wang received the first notice of hearing, it appears that neither notice was properly served. Wang did not show up for his hearing, and in November 1999, the immigration judge administratively closed the case at the government’s request.

Over the next 10 years, Wang remained in the United States and avoided the attention of the immigration authorities. In 2009 he married a Chinese citizen and eventually had two children with her. In October of that year he voluntarily returned to immigration court and moved to recalendar his proceedings. At a hearing in March 2010, Wang admitted the charges in the Notice to Appear and conceded removability, but stated that he was pursuing a U Visa and planned to seek asylum and relief under the Convention Against Torture. (A U Visa is available to noncitizen victims of certain crimes who “have been or are likely to be helpful to authorities in investigating or prosecuting that crime.” L.D.G. v. Holder, 744 F.3d 1022, 1024 (7th Cir. 2014); see 8 U.S.C. §§ 1101(a)(15)(U), 1184(p).) Wang believed that he was eligible for the visa as a victim of human trafficking. See 8 U.S.C. § 1101(a)(15)(U)(iii). Before it could be resolved, his case was transferred to the immigration court in Chicago; that court held a hearing in March 2011. Immigration Judge Carlos Cuevas ordered the case continued for 20 months until November 2012 to allow Wang to continue pursuing a U Visa and to decide what other relief he would be requesting. The IJ explained that if the U Visa were denied in the meantime, Wang should “come in with some other form of relief” and that the lengthy continuance would give Wang time to get “everything in order.”

At the next hearing in November 2012, the IJ wrapped up Wang’s case. Wang’s attorney explained that Wang’s attempt to obtain a U Visa had failed, and so he was submitting an application for cancellation of removal. The IJ denied that application on the ground that Wang lacked the required 10 years of continuous presence in the United States. Although he had been physically present, his qualifying time ended, the IJ ruled, when he was served with a Notice to Appear just two days after his arrival. See 8 U.S.C. § 1229b(b)(1)(A), (d)(1). Wang asked for a continuance to file an application for asylum, but the IJ rejected the request as a “delay tactic,” especially in light of the lengthy continuance that he already had granted. Wang then testified to his version of events. He described how he was smuggled into the country and, after being released on bond, was locked up and beaten by his smugglers for two and a half months. He asserted that the smugglers threatened to harm his family in China if he went to the police. Wang’s counsel then renewed his motion for a continuance to file an asylum application. The IJ denied the motion and ordered Wang removed.

Wang appealed to the Board of Immigration Appeals. His brief before the Board focused heavily on our decision in Dababneh v. Gonzales, 471 F.3d 806 (7th Cir. 2006), a similar case involving the so-called “stop-time” rule, 8 U.S.C. § 1229b(d)(1), and a Notice to Appear that did not include the time and date of a hearing. But the petitioner in Dababneh, unlike Wang, was properly served within 10 years of his arrival in the United States with a second document— a “notice of hearing” specifying the date and time of his hearing. See 471 F.3d at 807, 810. We denied the petition for review, ruling that the statutory requirements of § 1229b(d)(1) can be met by reading the Notice to Appear together with a later-served notice of hearing. Id. at 810. Wang urged the Board to find that a Notice to Appear that does not include the date and time of a hearing cannot by itself trigger § 1229b(d)(1). In a footnote, Wang’s brief acknowledged and disagreed with the Board’s decision in Matter of Camarillo, 25 I & N Dec. 644, supra, in which the Board held that an alien’s continuous presence in the United States ends upon the service of a Notice to Appear on the alien, even if that notice is missing the date and time of the initial hearing. Wang argued that Camarillo “misconstrued” both Dababneh and the statute itself, and that the IJ abused his discretion by denying a continuance.

The Board, relying on Camarillo, dismissed the appeal with this explanation:

[W]e disagree with [Wang's] argument that we mischaracterized Dababneh v. Gonzales, 471 F.3d 806 (7th Cir. 2006), in our precedent decision in Matter of Camarillo, 25 I. & N. Dec. 644 (BIA 2011), and we are not inclined to revisit Camarillo. In Dababneh, the court found that the failure to include the time and date of the hearing in the NTA did not render it ineffective for purposes of cutting off the accrual of continuous physical presence where the hearing notice was subsequently provided. Further, the Dababneh court specifically stated that “[t]he language of INA § 240A(d) is clear: if an alien has received an NTA, the period of continuous presence is deemed to end.” Dababneh v. Gonzales, supra, at 810.

The Board also rejected Wang’s argument about the denial of a continuance because he had not shown “good cause” for a continuance, see 8 C.F.R. § 1003.29, nor demonstrated prejudice.

II

Wang’s principal argument is that the Board wrongly concluded that he is ineligible for cancellation of removal, because it relied on a defective Notice to Appear to cut off his continuous presence in the United States. (Because the Board agreed with the IJ’s decision and added its own observations, we review both the IJ’s and the Board’s decisions. Pouhova v. Holder, 726 F.3d 1007, 1011 (7th Cir. 2013).) Two statutes govern here: 8 U.S.C. § 1229b(d)(1), which provides that an alien’s “continuous physical presence in the United States shall be deemed to end … when the alien is served a notice to appear under section 1229(a) of this title”; and 8 U.S.C. § 1229(a)(1), which lists the information that must be included in a Notice to Appear. One required item is the “time and place at which the proceedings will be held.” Id. § 1229(a)(1)(G)(i). Wang argues that he did not receive an effective Notice to Appear because his notice did not comply with § 1229(a)(1)(G)(i) and include the date and time of his hearing. Later notices that cured that defect came too late, in his view, as they were not properly served within 10 years of his arrival in the United States.

Because we are considering a challenge to the Board’s authoritative interpretation of the immigration laws, “[p]rinciples of Chevron deference apply.” Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2203 (2014) (plurality op.); see Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir. 2008). Under Chevron’s two-part test we first decide, using the “traditional tools of statutory construction,” whether Congress “has directly spoken to the precise question at issue.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 & n.9 (1984). If it has not, then we proceed to Chevron’s second step and ask whether the Board’s construction “is based on a permissible construction of the statute.” Id. at 843.

The Fourth Circuit has already concluded that § 1229b(d)(1) does not directly address, for purposes of step one, the precise question before us: whether an alien’s continuous presence in the United States can be halted by a Notice to Appear that lacks the date and time of a hearing. See Urbina v. Holder, 745 F.3d 736, 739-40 (4th Cir. 2014). This makes sense to us. The statute conditions operation of the stop-time rule on service of a “notice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1). It says nothing about whether a Notice to Appear, in order to function for the stop-time rule, must include the date and time of a hearing. It is logical to conclude that Congress left it to the Board to fill this gap. See Chevron, 467 U.S. at 843-44. Perhaps, as Wang contends, the best way to fill the gap is to require perfect compliance with every detail of § 1229(a) to trigger the stop-time rule. Perhaps, as the Board concluded in Camarillo, 25 I & N Dec. at 647, it would be preferable to interpret the passage as merely setting forth the type of document that triggers the stop-time rule. This would not be the only area in which a defective document nonetheless serves a useful purpose. In Becker v. Montgomery, 532 U.S. 757 (2001), the Supreme Court held that a notice of appeal must be signed, but that the failure to sign in a timely way was a curable defect that did not require the dismissal of the appeal. Just so here. Analogies aside, the central point for present purposes is that Congress did not resolve the issue in the statute, and so Wang cannot prevail under Chevron’s first step.

Nothing in Dababneh is to the contrary. There we wrote that the statute “is clear: if an alien has received [a Notice to Appear], the period of continuous presence is deemed to end.” Dababneh, 471 F.3d at 810. To the extent that we indicated that the statute is unambiguous, our statement supports the Board’s position here, when it held that Wang received a Notice to Appear and so his “continuous presence [was] deemed to end.” Id. There are aspects of Wang’s case, however, that simply did not arise in Dababneh. In particular, Dababneh did not address whether a Notice to Appear lacking a date and time is sufficient on its own to trigger the stoptime rule. See id.; Guamanrrigra v. Holder, 670 F.3d 404, 409-10 (2d Cir. 2012) (same).

We therefore proceed to Chevron’s second step and ask whether the Board’s interpretation “is based on a permissible construction of the statute.” 467 U.S. at 843. Although the Board acknowledged the possibility of a number of plausible interpretations of the key language, it concluded that the “best reading” is to treat the phrase “notice to appear under section 1229(a)” as referring to the type of document that triggers the stop-time rule, not as requiring perfect compliance with § 1229(a)(1). Camarillo, 25 I. & N. Dec. at 647. A central purpose of the Notice to Appear, the Board explained, is to inform an alien that the government seeks to remove him from the country. Even a notice that does not specify the date or time of a hearing conveys that intent. Id. at 650. The Board also placed some weight on the fact that the entity issuing the Notice to Appear—the Department of Homeland Security—is not responsible for scheduling immigration hearings. The immigration court has that duty, and the Board saw “no reason to conclude that Congress would have expected that scheduling delays in the Immigration Court … would affect when an alien’s … physical presence ends.” Id. Finally, the Board reasonably saw its interpretation as consistent with the stop-time rule’s basic purpose: to prevent aliens from delaying their immigration proceedings to become eligible for relief from removal. Id. at 649-50; see S. Rep. No. 104-249, at 15 (1996); H. R. Rep. No. 104-469(I), at 122 (1996); Guamanrrigra, 670 F.3d at 410. We have no trouble concluding, as our colleagues in the Fourth Circuit did, Urbina, 745 F.3d at 740, that the Board’s interpretation is “based on a permissible construction of the statute” to which we should defer. See Chevron, 467 U.S. at 843.

Lastly, Wang argues that the IJ abused his discretion when he denied another continuance. He asserts that more time, beyond the 20 months the IJ already had given him, would have allowed him to file for asylum. We see no merit in this argument. An IJ has discretion to grant a continuance for “good cause shown,” see 8 C.F.R. § 1003.29, and if the judge articulates a legitimate reason for denying a continuance, we will uphold his decision. See Calma v. Holder, 663 F.3d 868, 878 (7th Cir. 2011). The IJ denied Wang’s request for a continuance, believing it to be a “delay tactic.” That was not an abuse of discretion. Wang has not explained why he was unable to prepare an asylum application at any of several earlier times: during the 10 years he was off the authorities’ radar, during the year between his March 2010 hearing in New Orleans and his March 2011 hearing in Chicago, or during the 20-month continuance allowed by the IJ before the final hearing in November 2012. In any event, any error in the denial of a continuance would be harmless, see Calma, 663 F.3d at 878, because Wang has never explained how he could demonstrate a reasonable fear of persecution in China: he claims to have been harmed by smugglers in this country. See 8 U.S.C. § 1101(a)(42)(A).

The petition for review is DENIED.

Posted in 7th Circuit, 7th Circuit Cases- Aliens, Asylum, BIA, Cancellation of Removal, Cancellation Of Removal and The Stop-Time Rule, Chicago Immigration Court, Stop-Time Rule | Leave a comment