Moreta v. Holder, Jr.

United States Court of Appeals
For the First Circuit

No. 12-1902

BELKIS EUNICE MORETA,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.

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

July 15, 2013
 HOWARD, Circuit Judge. Belkis Eunice Moreta, a native and

citizen of the Dominican Republic, petitions for judicial review of

the Board of Immigration Appeals's ("BIA") affirmance of an

Immigration Judge's ("IJ") finding that she abandoned her

applications for relief from removal by failing to file them in

accordance with a court-ordered deadline. Because the IJ did not

abuse her discretion by finding that Moreta had abandoned her

applications for relief, the petition for review is denied.

I. Background

In 1994, Moreta was admitted to the United States as a

permanent resident on a conditional basis based on her marriage to

a U.S. citizen. That marriage later ended in divorce.

Thereafter, Moreta filed a petition to remove the conditions on her

residency. That petition was denied and her status as a

conditional permanent resident was terminated.

On January 7, 2010, during the ensuing removal

proceedings, Moreta--represented by counsel--appeared before an IJ

and stated her intentions (1) to renew her petition to remove the

conditions on her residency and (2) to apply for cancellation of

removal. The IJ asked Moreta's counsel how much time was needed to

prepare the necessary applications, and Moreta's counsel requested

sixty days. The IJ consented and ordered Moreta to submit her

applications by March 8, 2010.

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 The IJ also stated to Moreta, through a Spanish

interpreter,

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

Moreta responded that she understood.

March 8 came and went without Moreta filing her

applications. She eventually filed them on September 15, over six

months past the deadline. Moreta did not file a motion for the IJ

to accept the untimely submission. She made no updates to the

applications in advance of the April 17, 2011 update deadline.

On May 17, 2011, Moreta appeared for her final hearing

before the IJ. The IJ asked Moreta's counsel to explain why the

applications for relief were filed over six months after the

deadline. Moreta's counsel stated that Moreta was aware of the

deadline--as she had been present at the prior hearing--but that

she had not provided the information or fees necessary for her

counsel to complete and submit the applications in a timely

fashion.

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 The IJ denied Moreta's applications for relief on the

ground that Moreta had abandoned them by failing to meet the filing

deadline. The IJ noted that the applications were filed over six

months after the deadline and that Moreta failed to explain why she

did not file the applications in a timely manner. In the

alternative, the IJ denied Moreta's applications for relief on the

merits. The IJ found that Moreta failed to submit evidence to

support claims essential to both her petition to remove the

conditions on her residency and her application for cancellation of

removal.

Moreta appealed the IJ's decision to the BIA, arguing

that the IJ erred in (1) finding that Moreta had abandoned her

applications for relief, and (2) denying those applications on the

merits. The BIA dismissed the appeal and did not disturb the IJ's

finding that Moreta had abandoned her applications for relief by

failing to file them by the deadline. Because the BIA upheld the

IJ's decision on the ground of abandonment, the BIA found it

unnecessary to address the IJ's alternative findings denying

Moreta's applications on the merits. Moreta now requests review of

the BIA's decision.

II. Discussion

Moreta argues that we must grant her petition for review

on the grounds that the BIA abused its discretion by (1) finding

that she abandoned her applications for relief by failing to meet

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the filing deadline, and (2) refusing to consider all of her

arguments on appeal. For the reasons that follow, neither of these

asserted failings constitutes an abuse of discretion; and therefore

we deny her petition for review.

A. Abandonment as a Result of Missing the Filing Deadline

Where, as here, the BIA adopts part of the IJ's decision,

this court reviews the IJ's decision as adopted by the BIA. See,

e.g., Uruci v. Holder, 558 F.3d 14, 18 (1st Cir. 2009). And where,

as here, an IJ denies an application for relief on the ground that

the noncitizen abandoned the application by missing a filing

deadline, the IJ's decision is reviewed for an abuse of discretion

and should be reversed only if arbitrary or capricious. See, e.g.,

Gomez-Medina v. Holder, 687 F.3d 33, 37 (1st Cir. 2012). We "step

softly" when asked to set aside an IJ's sanction for a violation of

a case-management order, because IJs--who are intimately familiar

with the ebb and flow of the cases on their dockets--have

first-line authority for case-management decisions. Cf. Torres v.

Puerto Rico, 485 F.3d 5, 10 (1st Cir. 2007); see also Morgan v.

Gonzales, 445 F.3d 549, 551 (2d Cir. 2006) ("IJs are accorded wide

latitude in calendar management, and we will not micromanage their

scheduling decisions any more than when we review such decisions by

district judges.").

The regulations governing removal proceedings invest IJs

with "broad authority to impose deadlines for court filings. This

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authority reflects the government's strong interest in the orderly

and expeditious management of immigration cases." Gomez-Medina,

687 F.3d at 37 (citations and internal quotation marks omitted).

According to those regulations, "All documents and applications

that are to be considered in a proceeding before an [IJ] must be

filed with the Immigration Court having administrative control over

the Record of Proceeding." 8 C.F.R. § 1003.31(a). The regulations

further provide, "The [IJ] may set and extend time limits for the

filing of applications and related documents and responses thereto,

if any. If an application or document is not filed within the time

set by the [IJ], the opportunity to file that application or

document shall be deemed waived." Id. § 1003.31(c) (emphasis

added).

"The [BIA] has long held that applications for benefits

under the [Immigration and Nationality] Act are properly denied as

abandoned when the [noncitizen] fails to timely file them." Matter

of R-R-, 20 I. & N. Dec. 547, 549 (BIA 1992). And we have held

that an IJ does not abuse her discretion when she deems the

noncitizen to have abandoned an application for relief by missing

a filing deadline without good cause. See, e.g., Caldero-Guzman v.

Holder, 577 F.3d 345, 348 (1st Cir. 2009); Alsamhouri v. Gonzales,

484 F.3d 117, 122-23 & n.5 (1st Cir. 2007). This is so even if the

noncitizen eventually files the application. See, e.g., Ahlijah v.

Ashcroft, 123 F. App'x 4, 11 (1st Cir. 2005).

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 Moreta argues that, since she eventually filed her

applications, and since there is no evidence that she intentionally

delayed the proceedings, the IJ abused her discretion by deeming

the applications abandoned. But we have never held, and we decline

to hold here, that eventual filing and good intentions limit an

IJ's authority under 8 C.F.R. § 1003.31(c) to deem a late

application waived. Requiring such a finding of bad faith would

permit end-runs around the deadlines and result in the very

micromanagement that we have always eschewed.

Moreta further argues that it was an abuse of discretion

to deem her applications abandoned because the IJ never informed

her that missing the deadline would result in such a consequence.

To support her contention that missing a filing deadline should

result in negative consequences only where the noncitizen has

advance notice of those consequences, Moreta cites Lopez-Bautista

v. Holder, 339 F. App'x 585 (6th Cir. 2009).

Not only is Lopez-Bautista an unpublished opinion from a

different circuit, but Moreta mischaracterizes the case. In Lopez-

Bautista, which involved a Due Process Clause challenge, the Sixth

Circuit first noted that under 8 C.F.R. § 1003.31(c) an IJ may deem

late-filed applications to have been abandoned so long as the

noncitizen had proper notice of the deadline, id. at 586; the court

did not say that the noncitizen need also have had notice of the

consequence of failing to meet that deadline. The Sixth Circuit

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went on to reject the noncitizen's argument that 8 C.F.R.

§ 1003.31(c) violated his due process rights. Id. In the course

of its discussion, the court noted that the noncitizen (1) missed

the filing deadline by over eleven months, (2) never asked the

court to extend the deadline, and (3) had been warned of the

consequences of a late filing. Id.

Moreta has not styled her notice argument as a due

process challenge to 8 C.F.R. § 1003.31(c), and, even if she had,

it is not clear that the Due Process Clause would apply to her

applications for relief. See, e.g., DaCosta v. Gonzales, 449 F.3d

45, 50 (1st Cir. 2006) (stating that discretionary forms of relief

from removal do not rise to the level of a liberty or property

interest protected by due process); Jupiter v. Ashcroft, 396 F.3d

487, 492 (1st Cir. 2004) ("The petitioner's purported due process

claim is nothing more than a reformulated attack on the IJ's

discretionary refusal to extend the voluntary departure deadline

after the fact (or, more precisely put, to overlook the

petitioner's violation of that deadline). That reframed attack

presents no substantial constitutional question."). Furthermore,

even if the Due Process Clause were implicated, and even if we were

bound by Lopez-Bautista, the Sixth Circuit never said--and it is

far from obvious--that the warning about consequences was essential

to the outcome in that case. Moreover, even if advance warning

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were constitutionally essential, we would hesitate to conclude that

Moreta lacked such warning here. The IJ told Moreta:

So your applications are due to be filed with
this Court by March 8th of this year. Updates
are due by April 17th of 2011. And if you
fail to return to court, there are serious
consequences that I've advised you about
previously. But you additionally do have to
go through the biometrics process. If you
fail to do that, I can deem that you're
abandoning your applications.

Moreta reads this statement to suggest that while the IJ warned her

of the consequences of failing to appear at future hearings and of

failing to comply with the biometrics process, the IJ did not warn

her of any adverse consequences of failing to meet the filing

deadlines. That parses the IJ's statement too finely. At a

minimum, the IJ's admonition served to put Moreta on notice that

negative consequences could attend a failure to comply with

application requirements.

We conclude that the IJ acted within her discretion in

finding that Moreta had abandoned her applications for relief by

missing the filing deadline.

B. The BIA's Decision Not To Consider All Arguments

Moreta also argues that the BIA abused its discretion by

failing to consider all of her arguments on appeal.

"As a general rule . . . agencies are not required to

make findings on issues the decision of which is unnecessary to the

results they reach." INS v. Bagamasbad, 429 U.S. 24, 25 (1976);

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see also Peci v. Holder, 379 F. App'x 499, 504 n.3 (6th Cir. 2010)

(blessing BIA's practice of declining to reach alternate ground for

IJ's decision if that decision can be upheld on another ground);

Patel v. INS, 811 F.2d 377, 380 (7th Cir. 1987) (stating, where

BIA's holdings were phrased in the alternative, "[i]f the [BIA]

must be sustained on the latter of those grounds, then there is no

need for us to inquire into the propriety of the former").

Since the BIA's and IJ's finding as to abandonment was

not an abuse of discretion, the BIA was under no obligation to

address the IJ's alternative findings, or Moreta's arguments based

on those findings. Therefore, the BIA did not abuse its discretion

by failing to address Moreta's other arguments on appeal.

III. Conclusion

For the reasons stated above, Moreta's petition for

review is denied.

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