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.
-2-
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.
-3-
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
-4-
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
-5-
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).
-6-
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
-7-
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
-8-
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);
-9-
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.
-10-