Ghazarian v. Sessions

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 15-1725

ANAHIT GHAZARIAN,

Petitioner,

v.

JEFFERSON B. SESSIONS, III,*
Attorney General of the United States,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

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

Robert Marton and The Law Alliance A.P.C. on brief for
petitioner.
Laura Halliday Hickein, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Jennifer
P. Levings, Senior Litigation Counsel, and Benajmin C. Mizer,
Principal Deputy Assistant Attorney General, on brief for
respondent.

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Jefferson B. Sessions, III has been substituted for former Attorney
General Loretta E. Lynch as respondent.
April 12, 2017
 HOWARD, Chief Judge. Anahit Ghazarian, a native and

citizen of Armenia, petitions for review of a final order of

removal from the Board of Immigration Appeals ("BIA"). The focus

of her petition is on an immigration judge's ("IJ") discretionary

order denying Ghazarian's motion for extension of time, which

sought additional time to file applications for adjustment of

status, cancellation of removal, and waiver of removability. As

a result of that motion's denial, the IJ deemed Ghazarian's

applications for relief abandoned and ordered Ghazarian removed.

After careful consideration, we deny Ghazarian's

petition.

I.

Ghazarian entered the United States in 1990. In 2002,

she became a permanent resident on the basis of her marriage to

U.S. citizen Mikael Kayayan. Three years later, Ghazarian filed

an Application for Naturalization pursuant to Immigration and

Nationality Act § 319(a), 8 U.S.C. § 1430(a). Her marriage to

Kayayan was subsequently found to exist "solely for the purpose of

circumventing immigration laws and obtaining immigration benefits,

specifically lawful permanent residence and citizenship," and her

application was denied.

In 2010, Ghazarian failed to attend a removal hearing

and was declared removed in absentia. Ghazarian successfully moved

- 3 -
to rescind the in absentia order and to reopen removal proceedings.

After an evidentiary hearing, however, the IJ found Ghazarian

removable for fraud in violation of 8 U.S.C. § 1227(a)(1)(A),

denied her motion to terminate, and continued the case for any

applications for relief. At that time, the IJ told Ghazarian that

"[a]ny application [for relief] not filed by July 25, 2013 will be

deemed abandoned."1 The IJ also issued a notice to Ghazarian with

a handwritten note that said: "7/25/13 for [Ghazarian] to file any

and all applications otherwise abandoned."

July 25th arrived. But Ghazarian's various applications

for relief did not. Instead, Ghazarian filed a motion for

extension of time, which the IJ then summarily denied. Ghazarian

filed a timely motion to reconsider, which the IJ also denied.

Then, in October, the IJ issued her oral decision. The

IJ explained her prior denial of the motion for extension of time

by stating that Ghazarian had failed to establish good cause for

an extension and also noted that Ghazarian had never filed any

applications for relief, even after missing the July 25th deadline.

The IJ deemed Ghazarian's applications for relief abandoned.

Ghazarian timely appealed to the BIA. Though

acknowledging several errors made by the IJ, the BIA nonetheless

1Though a confusing exchange regarding dates followed, July
25, 2013 remained the deadline for filing applications for relief.
This gave Ghazarian 120 days to file.

- 4 -
affirmed because Ghazarian had not shown that she was prejudiced

by them. The BIA further observed that Ghazarian had not

demonstrated eligibility for any forms of relief.

This appeal followed.

II.

Where, as here, "the BIA has written separately while

deferring to and affirming the decision of an IJ, we review both

the BIA's decision and the relevant portions of the IJ's decision."

Lutaaya v. Mukasey, 535 F.3d 63, 70 (1st Cir. 2008).

On appeal, Ghazarian claims that the IJ abused her

discretion by deeming Ghazarian's applications abandoned and by

denying Ghazarian's motion to extend time. Additionally,

Ghazarian claims that the IJ abrogated Ghazarian's due process

rights through ex parte communication with government counsel. We

consider these claims in turn.

A.

Ghazarian's first claim on appeal is that the IJ abused

her discretion by deeming Ghazarian's applications abandoned. "We

'step softly' when asked to set aside an IJ's sanction for a

violation of a case-management order, because IJs . . . have first-

line authority for case-management decisions." Moreta v. Holder,

723 F.3d 31, 33—34 (1st Cir. 2013); see also Morgan v. Gonzales,

- 5 -
445 F.3d 549, 551 (2d Cir. 2006) (declining to micromanage

scheduling decisions). If "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." Moreta, 723 F.3d at 33). We have previously found

no abuse of discretion where, as in Ghazarian's case, the

noncitizen misses a filing deadline without showing good cause.

See id. at 34; see also 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).

Ghazarian argues that her motion for extension of time

signaled that she did not intend abandonment and, thus, that the

IJ abused her discretion by deeming the applications for relief

abandoned. We decline to hold here, however, that filing a motion

for extension of time -- at the last possible moment and with no

indication of when such applications for relief would be filed --

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

late application waived. To do so "would permit end-runs around

the deadlines and result in the very micromanagement that we have

always eschewed." Moreta, 723 F.3d at 34. And we reiterate that

the IJ twice gave Ghazarian notice that if she missed the July 25

deadline, her applications would be deemed abandoned. Therefore,

we find no abuse of the IJ's broad discretion.

- 6 -
 B.

Ghazarian next argues that the denial of her motion for

extension of time and of her subsequent motion to reconsider

amounted to an abuse of discretion. Yet, "[b]ecause the IJ

possesses the power to set time limits, the mere request of an

extension does not obligate the IJ to grant one." Okeke v. I.N.S.,

No. 95-2559, 1996 WL 271432, at *2 (4th Cir. May 22, 1996) (per

curiam) (unpublished opinion). Ghazarian had the burden of showing

good cause but did not plainly do so. See Mazariegos-Paiz v.

Holder, 734 F.3d 57, 65-66 (1st Cir. 2013). That the district

court acted well within its discretion in denying the motion is

clear.

C.

In an attempt to fashion a fallback position, Ghazarian

argues that denial of the motion to extend time transgressed her

right to due process. Our review of that claim is de novo. See

id. Essentially, however, Ghazarian's due process claim is little

more than a reformulated attack on the IJ's discretionary refusal

to extend the filing deadline. See Jupiter v. Ashcroft, 396 F.3d

- 7 -
487, 492 (1st Cir. 2005). "That reframed attack presents no

substantial constitutional question." Id.

Here, Ghazarian received all of the process that was

due. She had plenty of time to file her applications. Cf. Juarez

v. Holder, 599 F.3d 560, 566 (7th Cir. 2010) (finding 60 days to

file applications adequate). More significantly, she had no

protected interest in this discretionary form of relief. Cf.

DaCosta v. Gonzales, 449 F.3d 45, 50 (1st Cir. 2006) ("A due

process claim requires that a cognizable liberty or property

interest be at stake. . . . [A] discretionary form of relief

. . . does not rise to the level of such a protected interest.").

Finally, because we have established that the IJ did not abuse her

discretion in denying the motion, there is no basis for a colorable

claim that the denial somehow produced a fundamentally unfair

hearing. See id. (citing Alsamhouri, 484 F.3d at 124).

D.

Ghazarian's final argument is that ex parte

communications occurred between the IJ and the government sometime

prior to the October hearing. On the record before us, we

conclude, like the BIA, that Ghazarian's allegations are "based

solely on her own speculation." Even if we accept, arguendo, that

impermissible ex parte communication occurred, Ghazarian has

failed to show that she suffered any harm, and therefore we find

- 8 -
no violation of due process. See Enwonwu v. Gonzáles, 232 F. App'x

11, 15 (1st Cir. 2007) (per curiam) (unpublished opinion).

III.

Although we do not condone the errors acknowledged by

the BIA, the petition is denied.

- 9 -