In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-2519 & 08-4058
U GOCHUKWU U MEZURIKE,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petitions for Review of Orders of
the Board of Immigration Appeals.
No. A98-146-313
A RGUED JUNE 5, 2009—D ECIDED JULY 9, 2010
Before M ANION, R OVNER, and T INDER, Circuit Judges.
R OVNER, Circuit Judge. Ugochukwu Umezurike is a
native and citizen of Nigeria who entered the United
States on April 26, 2003, as a non-immigrant visitor for
pleasure. He remained in this country beyond October 23,
2003, the date upon which his authorization expired.
On June 28, 2004, he filed an application for asylum. The
Department of Homeland Security referred the asylum
application to the Immigration Court and placed
Umezurike in removal proceedings on August 9, 2004.
2 Nos. 08-2519 & 08-4058
Umezurike, with counsel, appeared before an immigra-
tion judge on August 24, 2004, and admitted the factual
allegations contained in the Notice to Appear and con-
ceded that he was removable as charged. Umezurike
renewed his asylum application which the immigration
judge also treated as a request for withholding of
removal and protection under the Convention Against
Torture Act. The immigration judge set a hearing on the
merits for November 30, 2005, and informed Umezurike
on the record and in an accompanying order that he
would have to submit written documentary evidence
no later than November 1, 2005, and that “[f]ailure to
timely file documentation as required herein shall be
deemed a waiver and abandonment of any such opportu-
nity.” R. 150, 193. The order further noted that orig-
inal supporting documents from Nigeria had to be sub-
mitted no later than July 1, 2005. On the record, the im-
migration judge stated, “Counsel, the respondent clearly
will have to be re-fingerprinted if he has not already
been fingerprinted.” R. 150. The written pre-hearing
order reiterated that Umezurike would have to be finger-
printed no later than forty-five days prior to the hearing.
R. 193. The July 1 and November 1 filing deadlines
passed without word from Umezurike.
Five days prior to the scheduled merits hearing, on
November 25, 2005, Umezurike’s lawyer filed a letter
with the court seeking a continuance on the basis that
he had been hospitalized for the prior two weeks with
a serious medical condition. Counsel attached a witness
list to the document but no additional documentary
evidence. R. 192. The immigration judge granted a con-
Nos. 08-2519 & 08-4058 3
tinuance and reset the merits hearing for January 22,
2007. In a handwritten notation at the top, that order
reiterated that Umezurike would have to be re-finger-
printed no later than ninety days prior to the hearing.
R. 188.
On January 17 2007, again five days prior to the sched-
uled hearing, Umezurike’s counsel filed another list of
witnesses to which he added some exhibits containing
original documents and photographs from Nigeria. The
documents, displaying dates ranging between October 17,
2003, and September 8, 2006, failed to conform to local
operating procedures or regulations.
Umezurike did not appear for fingerprinting within
forty-five or ninety days prior to the hearing. Umezurike’s
counsel explained to the immigration court that he had
assumed his client had been fingerprinted and it was
only when he began to prepare him for the hearing that
he discovered that he had not. Without specifying any
dates or times, Umezurike informed the court that he
had contacted the U.S. Citizenship and Immigration
Application Support Center in Milwaukee only to find
that the person responsible for fingerprinting was on
vacation and when she returned she informed
Umezurike’s counsel that he needed a court order for
fingerprinting. Eventually, Umezurike’s counsel sent his
client to Chicago for fingerprinting on January 19,
2007, just three business days before the hearing but, of
course, the biometric data was not available in time for
the hearing.
Umezurike’s counsel requested, and the immigration
judge denied, an additional continuance to rectify the
4 Nos. 08-2519 & 08-4058
fingerprint and documentary evidence deficiencies. In
its ruling, the immigration judge found Umezurike to
be removable as charged, deemed his applications for
relief and protection abandoned and issued an order of
removal to Nigeria. The immigration judge reasoned
that Umezurike had abandoned his applications for
relief and protection by failing to comply with the
court’s several orders concerning the submission of
documents and by failing to make timely arrangements
for fingerprinting. The court noted that the case had
been pending since 2004, had already been continued
once and the next available hearing date was not until
February 2008. The immigration judge concluded that
“[t]his would lead to an unacceptable and inordinate
continuance before adjudication of what I do not believe
appears to amount to a prima facie withholding or
even asylum case.” R. 139.
The immigration judge reasoned that the deadlines
were clear from the court’s instructions on the oral
record, its written orders, the prehearing order and
the Attorney General’s administrative regulations gov-
erning the immigration courts. The immigration judge
also noted that it is within an immigration judge’s dis-
cretion to grant or not grant a continuance and that
“failure to comply with these fingerprinting require-
ments can result in the Court deeming an application
abandoned and/or denied.” R. 140. The court determined
that Umezurike had not demonstrated good cause and
thus the court would not use its discretion to grant a
continuance. Umezurike declined the government’s offer
for voluntary departure, and the court determined that
Nos. 08-2519 & 08-4058 5
Umezurike had abandoned his opportunity to pursue
asylum, withholding of removal, relief under the Con-
vention Against Torture Act, and other forms of relief
before the court.
On appeal before the Board, Umezurike argued that
the immigration judge denied him a full and fair oppor-
tunity to present his case. Umezurike argued that he
had undertaken efforts to be fingerprinted and that
his failure to timely submit evidence was due to a mis-
understanding regarding the hearing date. Counsel
asserted that he had made numerous unsuccessful efforts
to secure records from Nigeria. Umezurike sought to
reopen the proceedings based on the fact that he had
received authentication for the documents from Nigeria
after the immigration judge’s decision. In front of the
Board, Umezurike’s counsel presented his own affidavit
which incorporated the documentary evidence that the
Board declined to admit on appeal.
As for the fingerprint analysis, counsel’s affidavit be-
fore the Board retold the story of the vacationing im-
migration services employee, noting that he had been
informed that his client could not be fingerprinted until
a particular employee returned from vacation, and that
by the time that employee returned from vacation, less
than one week remained before the hearing. At that
point, the affidavit asserts, the employee advised coun-
sel to send his client to Chicago for fingerprinting.
The affidavit does not state when counsel first at-
tempted to have his client fingerprinted or on what date
he first called the Application Support Center. Counsel
6 Nos. 08-2519 & 08-4058
claimed that he thought that biometric results could
be available in a matter of days, and thus would be avail-
able prior to the hearing, but offered no explanation as
to why he did not attempt to secure the fingerprints
either ninety or forty-five days prior to the hearing as
ordered by the court.
The Board of Immigration Appeals issued a single-
member decision on May 20, 2008, adopting and
affirming the immigration judge’s decision and agreeing
that the judge below properly deemed the applications
abandoned when Umezurike failed to demonstrate good
cause for failing to submit a fingerprint analysis in a
timely fashion. The Board also affirmed the immigra-
tion judge’s decision to deny admission of documents
into the record when Umezurike failed to comply with
the court’s order regarding the deadline and manner
for submitting supporting documentation. The Board
concluded that the immigration judge did not abuse
her discretion in denying a continuance to correct the
deficiencies, as Umezurike had not demonstrated
good cause for his failings. Finally, the Board denied
Umezurike’s request to reopen and admit evidence,
noting that Umezurike failed to provide reasonable and
probative evidence as to why the documentation could
not have been procured and submitted in a timely
manner before the immigration judge. R. 73-74.
On June 19, 2008, Umezurike filed a petition to review
the Board’s decision in this court. In the meantime, he
also filed a motion with the Board to reconsider its
May 20, 2008 decision denying reconsideration on the
Nos. 08-2519 & 08-4058 7
same claims previously presented. The Board denied
his motion to reconsider on October 30, 2008, noting
that Umezurike failed to establish any error of fact or
law supported by pertinent authority. Umezurike
timely filed in this court a petition for review of the
Board’s October 30, 2008 denial of his motion to recon-
sider. This Court consolidated the two pending petitions
for review.
Our task is to review the decision of the immigration
judge and any additional reasoning supplemented by
the Board in its review of the immigration judge’s deci-
sion. Milanouic v. Holder, 591 F.3d 566, 570 (7th Cir.
2010). In this case, in addition to the decision of the im-
migration judge, we review two decisions from the
Board. In the first decision, issued on May 20, 2008,
the Board responded to Umezurike’s appeal of the im-
migration judge’s January 22, 2007 decision. The Board
adopted and affirmed the decision of the immigration
judge, noting that the immigration judge did not abuse
her discretion by finding the application abandoned,
relying largely on the immigration judge’s reasoning for
its own short decision. On October 30, 2008, the Board
responded to Umezurike’s motion for reconsideration
and stay of removal by issuing a perfunctory opinion
which stated that Umezurike failed to establish any
material error of fact or law and had raised essentially
the same arguments presented in the initial appeal. The
Board abided by its prior decision.
At the time the parties submitted their briefs before
this court, the law of the circuit was that the Illegal Im-
8 Nos. 08-2519 & 08-4058
migration Reform and Immigrant Responsibility Act
stripped the circuit courts of jurisdiction to review discre-
tionary immigration agency decisions, including deci-
sions where that discretion was conferred by regulation
rather than statute. See Kucana v. Mukasey, 533 F.3d 534,
536 (7th Cir. 2008), overruled 130 S. Ct. 827, 840 (2010); Ali
v. Gonzales, 502 F.3d 659, 663-64 (7th Cir. 2007) (holding
that the court has no jurisdiction to review the denial
of a continuance). That conclusion came from an inter-
pretation of § 1252(a)(2)(B)(ii) of the Act which states
that no court shall have jurisdiction to review any action
of the Attorney General “the authority for which is speci-
fied under this sub-chapter to be in the discretion of
the Attorney General.” 8 U.S.C. § 1252(a)(2)(B)(ii).
In the interim, however, the Supreme Court rejected
this circuit’s interpretation of § 1252(a)(2)(B)(ii), holding
that the jurisdiction stripping provisions apply only to
agency decisions made discretionary by statute and
not by regulation. In this case, the immigration judge
refused to grant a continuance and the Board refused to
reconsider or reopen the proceedings—decisions made
discretionary by regulation. See 8 C.F.R. § 1003.2(a) (“The
decision to grant or deny a motion to reopen or recon-
sider is within the discretion of the Board”); 8 C.F.R.
§ 1003.31 (“The Immigration judge may set and extend
time limits for the filing of applications and related docu-
ments and responses thereto, if any.”) Our review, there-
fore, is plenary and not limited to the constitutional
claims and questions of law that are excepted from
§ 1252(a)(2)(B)(ii)’s jurisdictional bar. See Juarez v.
Holder, 599 F.3d 560, 564-65 (7th Cir. 2010).
Nos. 08-2519 & 08-4058 9
Nevertheless, because the Board has broad discretion
in this area, our review is also highly deferential and we
will overturn a decision of the Board only for abuse of
discretion. See Kucana v. Holder, 130 S. Ct. 827, 834 (2010);
I.N.S. v. Doherty, 502 U.S. 314, 323 (1992); Kucana v.
Holder, 603 F.3d 394, 395 (7th Cir. 2010); Juarez, 599 F.3d at
565. Unless the Board’s decision “was made without a
rational explanation, inexplicably departed from estab-
lished policies, or rested on an impermissible basis,” we
will deny the petition for review. Mungongo v. Gonzales,
479 F.3d 531, 534 (7th Cir. 2007) (quoting Singh v. Gonzales,
404 F.3d 1024, 1027 (7th Cir. 2005)).
The Immigration Regulations provide that an immigra-
tion judge may deem an application abandoned where
the applicant has failed to comply with fingerprinting
requirements:
Failure to file necessary documentation and comply
with the requirements to provide biometrics1 and
other biographical information in conformity with
the applicable regulations, the instructions to the ap-
plications, the biometrics notice, and instructions
1
“Biometrics refers to the technology that converts a unique
characteristic of an individual into a digital form, which is
then interpreted by a computer and compared with a digital
exemplar copy of the characteristic stored in the computer.
Among the unique characteristics of an individual that can
be converted into a digital form are voice patterns, finger-
prints, and the blood vessel patterns present on the retina of
one or both eyes.” 5 C.F.R. § 850.103
10 Nos. 08-2519 & 08-4058
provided by DHS, within the time allowed by the
immigration judge’s order, constitutes abandonment
of the application and the immigration judge may
enter an appropriate order dismissing the application
unless the applicant demonstrates that such failure
was the result of good cause.
8 C.F.R. § 1003.47(c). A different provision states, “Failure
to comply with processing requirements for biometrics
and other biographical information within the time al-
lowed 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). This court has upheld the Board’s refusal to
grant a continuance or motions for other relief where
the petitioners had no good cause for failing to submit
the required biometric data. See, e.g., Juarez, 599 F.3d at 565.
In this particular case, the immigration court informed
Umezurike three times that he would need to provide
a fingerprint analysis: first, by the immigration judge on
the record on August 24, 2004 (R. 150); second, on
that same date in a written order which stated that
Umezurike would have to make arrangements “to be
fingerprinted no later than forty-five days prior to [the]
next hearing (R. 193); and third, in a second order dated
December 6, 2005, granting a motion for a continuance,
upon which a handwritten notation stated “respondent
will need to be re-printed no later than 90 days prior to
the hearing.” (R. 188). Despite these admonishments,
nearly two and a half years passed, and Umezurike
did not present himself for fingerprinting until three
Nos. 08-2519 & 08-4058 11
business days prior to his hearing—at which point it
was too late to receive the information in time. It
clearly was not an abuse of discretion for the immigra-
tion judge to find that Umezurike had not supplied
good cause for failing to present fingerprint data despite
having three warnings that he needed to comply, and two-
and-a-half years in which to do so.
Umezurike’s counsel, Emmanuel Muwonge, offered
vague excuses for the delay but no concrete explana-
tions. Muwonge was hospitalized for two weeks in
2005 with a serious and debilitating illness but the court
appropriately accommodated counsel by providing an
almost fourteen-month continuance.
Muwonge submitted an affidavit to the Board in
support of the motion for reconsideration and removal
in which he claimed that he had contacted the
Milwaukee immigration facility and was told that his
client could not be fingerprinted until a particular in-
dividual returned from vacation. By the time that em-
ployee returned to the office, he asserted, the sched-
uled merits hearing was less than one week away. R. 20,
95, 158-59. It was then, he says, that he made arrange-
ments for his client to go to Chicago for fingerprinting.
Despite the several iterations of this particular story
(orally before the court on January 22, 2007, and in af-
fidavits to the Board filed on September 10, 2007, and
June 19, 2008), Muwonge never provided a date upon
which he first attempted to secure fingerprints for his
client. Id. He asserted that the Milwaukee employee
returned from vacation less than a week prior to the
12 Nos. 08-2519 & 08-4058
merits hearing. The fingerprinting, however, was due
more than ninety days prior to the merits hearing, and we
find it difficult to imagine that the employee was gone
more than ninety days, and if she were, that there was
no other employee who could have assisted Muwonge
in her absence. In any event, Muwonge’s vague and
confusing story fails to provide any details regarding the
dates upon which he attempted to secure fingerprinting
or any other evidence of those attempts (which might
have included a letter from the employee in the Wis-
consin Application Support Center) or otherwise to
provide good cause for failing to submit fingerprint data
in a timely fashion, despite having had notice of the
requirement for more than two and a half years.
Umezurike argues for the first time on appeal that the
immigration judge could not rely on Umezurike’s failure
to submit biometrics data as required in 8 C.F.R.
§ 1003.47 and 8 C.F.R. § 1208.10 to deem his application
abandoned because the effective date of these provisions
was April 1, 2005, and Umezurike first appeared before
the immigration judge on August 24, 2004. This argu-
ment was not raised below and has been waived. In
any event, the biometrics requirements were made im-
mediately applicable to all removal proceedings con-
ducted after the April 1, 2005 effective date. See Juarez,
599 F.3d at 565-66 (citing Background and Security In-
vestigations in Proceedings Before Immigration Judges
and the Board of Immigration Appeals, 70 Fed. Reg.
4743-44 (Jan. 31, 2005)). Umezurike’s merits hearing was
originally scheduled for November 30, 2005, and was
extended upon Umezurike’s motion to January 22, 2007,
Nos. 08-2519 & 08-4058 13
and thus under any scenario, the fingerprinting require-
ments applied to Umezurike’s hearing.
In short, counsel’s arguments about confusion over
the fingerprinting process do not hold water. As
Umezurike’s counsel points out in the brief, the direc-
tions for complying with fingerprinting requirements
are on the website of the U.S. Citizenship and Immigra-
tion Service. (See Umezurike’s Brief at 30-31). Counsel
had two and half years to determine the procedure
and verify that it had been completed.2
The immigration judge did not abuse her discretion
in denying a continuance and finding that Umezurike
had abandoned his application for failure to comply
with the fingerprinting requirements. This alone is
reason to find that the immigration judge did not abuse
her discretion in finding that Umezurike abandoned
his application, but his failure to timely file docu-
mentary evidence adds further support to the conclusion.
An immigration judge may set time limits for the
filing of documents and evidence. 8 C.F.R. § 1003.31. “If
an application or document is not filed within the time
2
Whether to grant a motion to reopen premised on ineffective
assistance of counsel is left to the discretion of the Board. See
Ghaffar v. Mukasey, 551 F.3d 651, 656 (7th Cir. 2008). But see
Stroe v. I.N.S., 256 F.3d 498, 501 (7th Cir. 2001) (The BIA
requires certain proof before filing a motion to reopen deporta-
tion proceedings based on a claim of ineffective assistance
of counsel.).
14 Nos. 08-2519 & 08-4058
set by the immigration judge, the opportunity to file
that application or document shall be deemed waived.”
Id. Although it is conceivable that an immigration
judge could impose a deadline so unreasonable that it
violates due process, that surely was not the case here.
See Juarez, 599 F.3d at 566; Hussain v. Gonzalez, 424
F.3d 622, 626 (7th Cir. 2005). The Local Operating Proce-
dures for the Executive Office of Immigration Review
indicate that all proposed exhibits and briefs must be
submitted no later than ten calendar days prior to the
scheduled hearing unless otherwise authorized by the
Immigration Judge. The Local Operating Procedures for
the Executive Office of Immigration Review Procedure
2(C). R. 204. An immigration judge may set a more strin-
gent deadline than that imposed by the local operating
instructions. Hussain, 424 F.3d at 626.
As of August 24, 2004, Umezurike knew that he would
have to submit foreign documents by July 1, 2005 (a little
less than one year from the date of the order), and other
documents by November 1, 2005. Umezurike did not
submit foreign documents by July 1, 2005—a date which
preceded his counsel’s hospitalization by more than
four months. That day came and went without any
motions or communication with the court. As did the
November 1, 2005 deadline for other documents.
Umezurike’s counsel, Muwonge, was hospitalized five
days later—from November 5 through November 19,
2005—and was rightfully excused from submitting docu-
ments during that time and for some time after, but he
had more than a full fourteen months following his
hospitalization to secure documents from Nigeria,
Nos. 08-2519 & 08-4058 15
and more importantly, fourteen months prior to his
hospitalization to do so. Furthermore, although his af-
fidavits assert that he had difficulty securing documents
from Nigeria, he offers no details regarding the dates
of his attempts—no phone records and no photocopies of
correspondence or any other evidence of attempts to
procure documents from Nigeria. Although counsel
states over and over that he made diligent efforts to
procure the documents from Nigeria, not once, through
several rounds of briefing, does he state a date upon
which he first attempted to procure those documents.
Finally, Umezurike’s counsel asserted that he believed
the hearing had been set for January 26 instead of
January 22 and it was not until counsel spoke with the
court clerk that he learned that the hearing was on the
earlier date. The court’s notice of hearing, however,
clearly indicated that the hearing was scheduled for
January 22, 2007, and it was undisputed that the
notice was mailed to and received by counsel’s office.
R. 188, 164-165.
Once again, the immigration judge did not abuse her
discretion by finding that Umezurike had abandoned
his application by failing to comply with court deadlines.
See Juarez, 599 F. 3d at 566 (immigration judge did not
violate due process rights of immigrant by deeming
his application abandoned after immigrant failed to file
applications and biometrics in a timely fashion); Hussain,
424 F.3d at 626 (immigration judge did not violate due
process rights by denying petitioner’s motion for an
extension of time to file foreign documents where nine
16 Nos. 08-2519 & 08-4058
months had elapsed since the petitioner filed his
asylum application.) Consequently, the petition for
review must be denied.
As a final note, counsel’s failure to meet multiple dead-
lines over such an extended period of time gives this
court great concern, particularly in light of the lack of
evidence of diligent efforts on counsel’s part to meet
those deadlines. Even taking into account counsel’s ill
health, several deadlines passed prior to his hospitaliza-
tion without counsel filing any motions for extensions
or otherwise contacting the immigration court. Counsel
also had fourteen months following his hospitalization
and before the merits hearing in which to rectify any
filing failures. Counsel has not provided any dates or
evidence concerning his efforts to secure documentary
evidence in a timely manner or to ensure that his
client was fingerprinted in the time frame required by
court order. This court is not in a position to undertake
the fact-finding required to determine whether counsel
has provided competent representation to his client in
this matter. Consequently, we direct the clerk to send
a copy of this opinion to the Wisconsin Office of Lawyer
Regulation.
In sum, we deny the petition for review. The clerk
shall transmit a copy of this opinion to the Wisconsin
Office of Lawyer Regulation.
7-9-10