Feliz v. Gonzales

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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