United States Court of Appeals
For the First Circuit
No. 06-1579
RENSON FELIZ,
Petitioner,
v.
ALBERTO R. GONZALES,
United States Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Lidia M. Sanchez on brief for petitioner.
Joshua E. Braunstein, Attorney, Office of Immigration
Litigation, Peter D. Keisler, Assistant Attorney General, and
Terri J. Scadron, Assistant Director, on brief for respondent.
May 25, 2007
LYNCH, Circuit Judge. This petition for review seeks, on
various grounds, to vacate a removal order returning Renson Feliz
to the Dominican Republic, his country of origin and citizenship.
One of Feliz's claims is that the Immigration Judge (IJ)
erred in failing to grant him a continuance. Despite the
respondent's contrary arguments in this case, the Attorney General
has conceded in another case that this court has jurisdiction to
consider claims that an IJ erred in denying a continuance.
Alsamhouri v. Gonzales, ___ F.3d ___, No. 05-2800, 2007 WL 1153033,
at *3 (1st Cir. Apr. 19, 2007).
While we have jurisdiction over the continuance claim,
the petitioner's argument based on lack of a continuance still
fails. At a minimum, the petitioner never asked for or otherwise
indicated clearly to the IJ that he sought a continuance. Feliz's
other arguments are also without merit, and as a result, we deny
the petition for review.
I.
Petitioner Renson Feliz was granted conditional permanent
resident status in September 1998 based on his marriage to a United
States citizen. In August 2000, he and his wife filed a Form I-751
joint petition to remove the conditions on Feliz's permanent
resident status.1
1
Under the Immigration and Nationality Act, a conditional
permanent resident normally must file, jointly with his spouse, a
petition seeking the removal of conditions during the ninety-day
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The INS2 scheduled an interview on the petition for
December 9, 2002. Feliz appeared, but his wife did not; he
explained that she was in the Dominican Republic for medical
treatment and asked for a postponement. Feliz was sent by mail
notice of a new interview date of June 12, 2003, but neither he nor
his wife appeared. On May 28, 2004, Feliz was sent a notice of
termination of his permanent resident status and a notice to appear
(NTA). The NTA was based on the termination of Feliz's permanent
resident status for failure to appear at the June 12, 2003
interview. Feliz was thus removable under 8 U.S.C.
§ 1227(a)(1)(D)(i).
Feliz appeared in removal proceedings before an IJ on
August 25, 2004, and he explained his absence from the interview on
his I-751 petition in June 2003 by saying he had never received
notice of it. His wife was not with him on August 25. The IJ gave
Feliz a new hearing date of February 7, 2005, and told Feliz and
his counsel twice that Feliz's wife needed to be present at that
hearing. The IJ stated that evidence would be taken at that time
period preceding the second anniversary of obtaining conditional
permanent resident status. 8 U.S.C. § 1186a(c), (d)(2)(A). The
couple also must attend an interview with an officer of the INS.
Id. § 1186a(c)(1)(B). The purpose of the petition and interview is
to determine whether or not the marriage is bona fide. See id.
§ 1186a(d)(1).
2
On March 1, 2003, the functions of the INS were
transferred to the Department of Homeland Security. Homeland
Security Act of 2002, Pub.L. No. 107-296, § 471(a), 116 Stat. 2135,
2205 (codified at 6 U.S.C. § 291(a)).
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on whether Feliz and his wife had received notice of the June 12,
2003 hearing.
Running true to pattern, Feliz appeared at the February
7, 2005 hearing with counsel but without his wife. Feliz claimed
that he did not know his wife's presence was needed, although the
IJ had specifically told him on August 25 that she was required to
attend. Feliz also testified that his wife suffered from
arthritis, and that the cold February weather was bad for her. The
IJ rejected Feliz's explanations for his wife's failure to attend
the hearing and found that Feliz had failed to establish lack of
notice of the June 2003 interview. Accordingly, the IJ found that
Feliz was removable and granted him the privilege of voluntary
departure by April 8, 2005.
On April 16, 2005, Feliz refiled an I-751 petition. The
Board of Immigration Appeals (BIA) thereafter affirmed the IJ's
decision without opinion, pursuant to 8 C.F.R. § 1003.1(e)(4).
Feliz filed a timely petition for review.3
II.
Feliz presents three claims of error in his petition for
review. He argues that the IJ erred as a matter of law and abused
his discretion in failing to grant a continuance at the February 7
hearing so that Feliz could refile his I-751 petition. Feliz also
3
This court tolled the remaining period of voluntary
departure, pending judicial review.
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argues that the IJ erred in failing to terminate the removal
proceedings against him. Finally, Feliz argues that the BIA's use
of its summary affirmance procedures in his case exceeded the scope
of the affirmance without opinion (AWO) regulations.
A. Continuance Claim
We review claims that an IJ erred in not granting a
continuance for abuse of discretion. Alsamhouri, 2007 WL 1153033,
at *4.
In his petition for review, Feliz states that the BIA has
established that IJs should grant continuances of removal
proceedings to allow for adjudication of late-filed applications
for waiver of the joint petition requirement. See, e.g., In re
Stowers, 22 I. & N. Dec. 605, 612-14 (BIA 1999). Feliz argues that
his situation is analogous to the waiver application situation, and
that BIA precedent thus required the IJ to grant a continuance.
There is no need to explore the issue because no request
for a continuance was made at the February 7, 2005 hearing. At
most, counsel for Feliz indicated that she preferred to refile a
Form I-751 rather than apply for voluntary departure. Moreover,
Feliz had no I-751 petition pending with the Department of Homeland
Security, and he has given no explanation for why he could not have
refiled his I-751 or sought rescheduling of the missed interview,
see 8 C.F.R. § 216.4(b)(3), before the February 7 hearing.
B. The IJ's Refusal to Terminate Removal Proceedings
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Unless a petitioner shows "good cause" for failure to
appear at a joint petition interview, the Department of Homeland
Security will automatically terminate an alien's conditional
permanent resident status as of the second anniversary of its
conferral. 8 U.S.C. § 1186a(c)(2)(A)(ii); 8 C.F.R. § 216.4(b)(3).
Feliz argues that the IJ erred in finding that he had not
established "good cause" for failing to appear at the June 2003
interview, and in therefore refusing to terminate the removal
proceedings against him.
We will uphold the BIA's finding that Feliz did not
establish good cause if it is supported by substantial evidence.
See 8 U.S.C. § 1252(b)(4)(B); Rodriguez-Ramirez v. Ashcroft, 398
F.3d 120, 123 (1st Cir. 2005) ("[A]n inquiring court must uphold
the BIA's resolution of [fact-driven] issues so long as its
decision is supported by substantial evidence in the record.").
Because the BIA summarily affirmed the IJ's determination, we
review the opinion of the IJ as if it were that of the BIA.
Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003).
Relying on the Ninth Circuit's decision in Agyeman v.
INS, 296 F.3d 871 (9th Cir. 2002), Feliz appears to argue that his
wife's poor health constituted good cause for their failure to
appear at the interview. Agyeman is inapposite. There is no
evidence that this is a case in which ill health accounted for the
failure to appear at the June 12, 2003 interview. Feliz's wife's
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health has never before been offered by Feliz as a reason for their
failure to appear at that interview. Rather Feliz said he did not
receive notice of the interview; the IJ's finding that this was not
true was based on substantial evidence.
At the hearing, the government presented evidence that
the interview notice had been mailed to Feliz at his record address
and that it had not been returned. The government also indicated
that the notice for the first interview and the NTA had been mailed
to the same address and apparently had been received. In addition,
Feliz's credibility suffered substantially when he testified about
why his wife did not appear at the February 7, 2005 hearing. When
the IJ rejected Feliz's brazen claim that he had not known that his
wife's presence was required at the hearing, Feliz added that she
suffered from arthritis and so couldn't "be in the cold much." He
did not assert that she was actually unable to appear, nor had he
earlier told the IJ that there would be any difficulty with her
appearing.
To the extent Feliz argues that his wife's ill health
constituted good cause for her failure to appear on February 7, and
that the IJ therefore should not have found him removable based on
her failure to appear, his argument essentially is that the IJ
should have granted another continuance. See 8 C.F.R. § 1003.29.
In Herbert v. Ashcroft, 325 F.3d 68 (1st Cir. 2003), this
court reversed an IJ's denial of a petitioner's motion to reopen
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when the petitioner's counsel had filed a motion for a continuance
and the petitioner had failed to appear at a hearing. Id. at 69-
70. In that case, the petitioner's attorney had filed on the day
of the hearing an emergency motion for a continuance based on the
fact that he was required to appear on a case in federal court at
the same time. Id. at 70. The attorney never notified the
petitioner of the motion or of his conflict, and, primarily because
of transportation difficulties, the petitioner arrived
approximately thirty minutes late to the hearing. Id. The
petitioner's relatives arrived on time to the hearing and informed
court personnel that the petitioner would be arriving shortly. Id.
Despite this assurance and the attorney's motion for a continuance,
however, the IJ proceeded in absentia and ordered the petitioner
deported. Id. The petitioner filed a motion to reopen, citing
extraordinary circumstances, see 8 C.F.R. § 3.23(b)(4)(iii) (2002),
which was denied. Herbert, 325 F.3d at 70.
In Herbert, we held that if there were indeed a failure
to appear, it was excused by exceptional circumstances. Id. at 72-
73. We noted that had the petitioner's attorney been able to
appear, he would have informed the IJ that the petitioner was on
his way. Id. at 72. We further noted that had the petitioner
arrived on time, he likely would not have elected to proceed
without counsel. Id. Finally, we observed that the petitioner's
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family had arrived at the hearing on time, and that their testimony
could have been taken first, thereby avoiding any delay. Id.
The facts of this case are very different. No
continuance was ever requested here. Nor was Feliz's wife merely
late; Feliz indicated that she would not appear at all. The case
already had been continued once before, and there was no indication
that another continuance would result in the appearance of Feliz's
wife. The IJ did not abuse his discretion in not granting a
continuance to allow Feliz's wife to appear.
Finally, Feliz also argues that the IJ erred in rejecting
his counsel's proffer of a joint tax return as evidence that Feliz
and his wife had a bona fide marriage. The issue before the IJ was
only whether Feliz and his wife had good cause for failing to
appear for their interview on June 12, 2003. The IJ indicated that
if both Feliz and his wife had testified that they had not received
notice and if he had seen evidence that the marriage was bona fide,
then he might have been inclined to terminate the removal
proceedings. Given that substantial evidence supports the IJ's
decision that Feliz failed to establish that he had not received
notice of the June 12, 2003 interview, the issue of whether the
marriage was bona fide is, as the IJ stated, irrelevant. The IJ
therefore committed no error in refusing to accept Feliz's evidence
of a bona fide marriage.
C. Claimed Violation by the BIA of Its Summary Affirmance
Procedures
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Feliz argues that the case should be remanded to the BIA
for further review because the BIA violated its summary affirmance
regulation, 8 C.F.R. § 1003.1(e)(4), in issuing an AWO. Feliz does
not argue that the BIA's use of its AWO procedures has denied him
due process of law.4 Rather, he argues that issuance of an AWO was
not appropriate in his case because the two predicate prongs of 8
C.F.R. § 1003.1(e)(4) were not met. Pursuant to 8 C.F.R.
§ 1003.1(e)(4), summary affirmance is appropriate only when a Board
member determines that, inter alia, (1) "the result reached in the
decision under review was correct"; and (2) "any errors in the
decision under review were harmless or nonmaterial."
There is an initial question about whether we have
jurisdiction to review Feliz's claim that the BIA violated its own
AWO procedure. The circuits have split on this issue. Compare
Kambolli v. Gonzales, 449 F.3d 454, 463 (2d Cir. 2006) (no
jurisdiction), Tsegay v. Ashcroft, 386 F.3d 1347, 1353-58 (10th
4
In Albathani, this court rejected a claim that the AWO
procedure itself, as enhanced in 2002, violates due process,
inherent principles of administrative law, or any statute. 318
F.3d at 375-79. The other circuits to have addressed the issue
have agreed. Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 282-83
(4th Cir. 2004); Zhang v. U.S. Dep't of Justice, 362 F.3d 155, 157
(2d Cir. 2004); Yuk v. Ashcroft, 355 F.3d 1222, 1229 (10th Cir.
2004); Loulou v. Ashcroft, 354 F.3d 706, 708-09 (8th Cir. 2003);
Dia v. Ashcroft, 353 F.3d 228, 238 (3d Cir. 2003); Denko v. INS,
351 F.3d 717, 730 (6th Cir. 2003); Falcon Carriche v. Ashcroft, 350
F.3d 845, 850 (9th Cir. 2003); Georgis v. Ashcroft, 328 F.3d 962,
967 (7th Cir. 2003); Mendoza v. U.S. Att'y Gen., 327 F.3d 1283,
1288 (11th Cir. 2003); Soadjede v. Ashcroft, 324 F.3d 830, 832-33
(5th Cir. 2003) (per curiam).
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Cir. 2004) (same), and Ngure v. Ashcroft, 367 F.3d 975, 988 (8th
Cir. 2004) (same), with Smriko v. Ashcroft, 387 F.3d 279, 290-95
(3d Cir. 2004) (jurisdiction), and Chong Shin Chen v. Ashcroft, 378
F.3d 1081, 1086-88 (9th Cir. 2004) (same). In Haoud v. Ashcroft,
350 F.3d 201 (1st Cir. 2003), this court held that we had
jurisdiction to review the BIA's decision to employ its AWO
procedures in a case involving both reviewable and non-reviewable
bases for the IJ's decision when it was unclear on which basis the
BIA had summarily affirmed and when the BIA may have failed to
consider a precedent helpful to the petitioner. Id. at 206; see
also Hoxha v. Gonzales, 446 F.3d 210, 220-21 (1st Cir. 2006). We
remanded so that we would have a reasoned basis on which to conduct
judicial review. Haoud, 350 F.3d at 207-08. The breadth of
Haoud's reach beyond its particular facts is something of an open
question, see Aguilar v. Gonzales, 475 F.3d 415, 418 (1st Cir.
2007); Hoxha, 446 F.3d at 220-21, and a narrow reading has been
suggested by the Eighth Circuit in Ngure, 367 F.3d at 988.
We bypass the jurisdictional question because we have
already rejected the premise of Feliz's argument -- that the IJ's
decision was improper.
The petition for review is denied.
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