United States Court of Appeals
For the First Circuit
No. 11-1444
YUBELKYS APONTE,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Circuit Judge,
Souter, Associate Justice,*
and Thompson, Circuit Judge.
Brian Monahan on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, David
V. Bernal, Assistant Director, Office of Immigration Litigation,
and Lindsay W. Zimliki, Attorney, Office of Immigration Litigation,
on brief for respondent.
June 21, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States sitting by designation.
THOMPSON, Circuit Judge. The case of Yubelkys Aponte is
before this court for a second time. This go-around she petitions
for review of a decision of the Board of Immigration Appeals (BIA)
denying her request for a remand and dismissing her appeal from a
final order of removal. Finding once again that the BIA failed to
adequately address certain issues, we deny the petition in part,
grant the petition in part, and remand.
BACKGROUND
i. Aponte's Arrival, Arrest, and Removal Charge
Yubelkys Aponte is a thirty-three year old native and
citizen of the Dominican Republic. She was admitted to the United
States as a Lawful Permanent Resident (LPR) on February 2, 1996.
A few years later, in 1999, Aponte pled guilty to Criminal
Possession of a Controlled Substance in the Fifth Degree in New
York.
In the fall of 2003, Aponte came to the attention of the
Department of Homeland Security (DHS) when she sought to reenter
the United States at the Luis Muñoz Marin International Airport in
San Juan, Puerto Rico. Shortly thereafter, on January 21, 2004,
DHS served Aponte with a Notice to Appear. In it, DHS charged that
Aponte was removable pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II)
because she had been convicted of a controlled substance violation.
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ii. The IJ Proceedings
Before the Immigration Judge (IJ), Aponte, who appeared
with counsel, conceded removability. However, Aponte requested a
continuance so that her counsel could attempt to have her criminal
conviction expunged. The IJ accommodated this and additional
requests and ultimately three years of continuances followed.
Aponte did not succeed in obtaining the expungement and, on June 4,
2007, the IJ called a stop to things and ordered Aponte removed.
iii. The BIA Appeal
Aponte timely appealed the IJ's decision to the BIA.1
Though she indicated no reason for the appeal, she noted that a
brief would follow. A few months later, the BIA mailed a briefing
schedule to Aponte's then counsel. The briefing schedule was
mailed to the correct attorney, at the correct street address;
however, it omitted the firm name (Ross & Associates), which
Aponte's counsel had listed on her entry of appearance. No brief
from Aponte followed and so on November 18, 2008, the BIA summarily
dismissed her appeal. In response, Aponte's counsel (new attorney,
same firm) filed a motion to reopen the removal proceedings,
arguing that neither she nor Aponte received timely notice of the
briefing schedule and that the BIA's failure to include the firm
1
Because what happened next is set forth at length in a
previous decision of this court, we offer the abridged version. If
the reader would like a more detailed recitation of these facts,
see Aponte v. Holder, 610 F.3d 1 (1st Cir. 2010).
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name in the mailing address constituted inadequate notice. The BIA
denied the motion to reopen finding insufficient information to
establish inadequate notice. Aponte petitioned this court for
review.
iv. The First Court of Appeals Petition
On June 18, 2010, we granted Aponte's petition. See
Aponte v. Holder, 610 F.3d 1, 2 (1st Cir. 2010) (Aponte I). We
held that the BIA abused its discretion by denying Aponte's motion
to reopen in an inadequately reasoned decision - namely, the BIA
failed to sufficiently dispose of the critical issue of whether
Aponte was entitled to have her proceedings reopened based on
inadequate notice of the briefing schedule. See id. at 5. The
particulars of the BIA's shortcoming in denying the motion to
reopen included the absence of meaningful analysis, a failure to
apply clear precedent, and misplaced findings. See id. The
solution: we remanded the case for the BIA to provide Aponte with
the opportunity to file a renewed motion to reopen and to decide
that motion in accordance with our opinion. See id. at 7. The
remand came with some caveats to Aponte. First, we noted that
Aponte's evidence that the briefing schedule was not timely
received - an affidavit completed by her attorney - was barely
sufficient and the issue needed clarification. See id. Second, we
pointed out that should the BIA decide to reopen, Aponte's ultimate
"likelihood of succeeding on the merits might well be negligible"
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as by all accounts she was having difficultly getting her
conviction expunged. Id.
v. The BIA Remand
With Aponte's case before it again, the BIA, in
accordance with our decision, allowed Aponte to file a new motion
to reopen. In the new motion, Aponte diversified her approach.
Her first argument was familiar. Aponte again argued that
deficient notice of the briefing schedule meant that proceedings
should be reopened so she could properly brief the merits of her
appeal regarding removal. In support, and presumably in response
to the concerns we expressed about the first affidavit, Aponte's
counsel submitted a new affidavit clarifying that neither she nor
Aponte had any knowledge that a briefing schedule had been issued
until they received the BIA's dismissal of the case.
Aponte then advanced a second and new argument. She
claimed that proceedings should be reopened, and her case remanded,
because the attorney who represented her before the IJ provided
ineffective assistance. According to Aponte, she only discovered
her former attorney's supposedly incompetent representation when
her current attorney reviewed the transcripts of the 2004 to 2007
IJ hearings. Aponte says this review occurred during the pendency
of her previous petition to this court. The gravamen of Aponte's
complaint with counsel's performance is that at the time she
conceded removability he did not request relief that she claims she
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is prima facie eligible for - cancellation of removal, asylum,
withholding of removal, and protection under the United Nations
Convention Against Torture (CAT). Aponte claimed she was a
candidate for cancellation of removal because she had never been
convicted of an aggravated felony, she was admitted for permanent
residence for at least five years, and, with her father's residency
in the United States imputed to her, she met the seven year
continuous residency requirement. Aponte asserted that she was
eligible for asylum, withholding, and CAT protection based on her
fear of returning to the Dominican Republic due to her membership
in the "social group" of women "considered to violate violently
enforced gender norms." And so Aponte requested that her case be
reopened and remanded so that she could apply for these forms of
relief.
The BIA took up Aponte's motion and issued a written
decision on March 31, 2011. After briefly reciting the facts and
procedural posture, the BIA indicated that it was reopening
proceedings and vacating its previous orders. What the BIA's
reasons for reopening were, we cannot say. Even though in Aponte
I we suggested that the BIA might want to cast a critical eye on
Aponte's notice deficiency arguments, it engaged in no analysis and
simply granted the motion to reopen out of hand.
The BIA then proceeded to address the remand request and
it reached the following conclusions. One, Aponte was not eligible
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for cancellation of removal because she did not establish seven
years of continuous residence as she could not properly impute her
father's residency. Two, Aponte did not show that she is prima
facie eligible for asylum, withholding, or CAT protection (no
reasoning shored up this finding; more on this later). And
finally, three, Aponte could not establish ineffective assistance
of counsel because she had not demonstrated a reasonable
probability of prejudice. That is, the BIA concluded that even if
Aponte's counsel had requested the relief from removal that she now
seeks, the end result would have been the same because Aponte was
not eligible for such relief. For these reasons the BIA denied
Aponte's request for a remand to the IJ and dismissed her appeal.
vi. The Second Court of Appeals Petition
Aponte once again petitioned this court, this time
seeking review of the BIA's March 31, 2011 order. In support of
her petition, Aponte argues that the BIA's rulings were erroneous,
that it abused its discretion in denying her request to remand
without explanation, and that the lack of a remand infringed on her
due process rights.2
2
This is the last we will say of Aponte's due process claim.
Aponte does not develop this argument, leaving the impression that
it was evoked solely for the purpose of circumventing our
jurisdictional constraints. This perfunctory treatment waives the
argument. See Rodríguez v. Municipality of San Juan, 659 F.3d 168,
175 (1st Cir. 2011).
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STANDARD OF REVIEW
Aponte's motion below was styled as a motion to reopen
with a request for a remand included in it. The BIA granted the
motion to reopen without any analysis and focused on the request
for a remand in its decision. Whether classified as a motion to
reopen or a request for a remand, the "nomenclature does not affect
the applicable legal framework." Mariko v. Holder, 632 F.3d 1, 7
(1st Cir. 2011). Because Aponte "seeks to have the BIA return an
appealed case to the IJ for further proceedings based on newly
available information," we treat her quest for relief as a motion
to reopen. Id.
We review the denial of a motion to reopen for abuse of
discretion. See Chedid v. Holder, 573 F.3d 33, 36 (1st Cir. 2009).
We set aside the "decision only where it rests on an error of law
or reflects arbitrary or capricious decision making." Id.
(internal quotation marks omitted). The BIA's legal conclusions
are evaluated de novo, with deference given "to the BIA's
reasonable interpretations of statutes and regulations falling
within its purview." Matos-Santana v. Holder, 660 F.3d 91, 93 (1st
Cir. 2011) (internal quotation marks omitted).
Our review is subject to an additional restriction, this
one jurisdictional in nature. Because Aponte was found removable
based on a conviction for a controlled substance violation, our
review (as it was in Aponte I) is limited to constitutional claims
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and questions of law. See 8 U.S.C. § 1252(a)(2)(C)-(D); see also
Larngar v. Holder, 562 F.3d 71, 75 (1st Cir. 2009).
ANALYSIS
i. Cancellation of Removal
A deportable alien is eligible for cancellation of
removal if the alien: (1) has been lawfully admitted for permanent
residence for at least five years; (2) has resided in the United
States continuously for seven years after being admitted in any
status; and (3) has not been convicted of an aggravated felony.
See 8 U.S.C. § 1229b(a)(1)-(3). Relevant for our purposes is the
so-called stop-time rule, which provides that an alien's period of
continuous residence is deemed to end when she is served with a
notice to appear or is convicted of certain criminal offenses,
including a controlled substance violation. See id. § 1229b(d)(1);
see also Peralta v. Gonzales, 441 F.3d 23, 24 (1st Cir. 2006). The
only debate here is whether Aponte met the seven year continuous
residency requirement of § 1229b(a)(2). Aponte raises two issues
of law with respect to the BIA's conclusion that she did not. We
address each in turn.
Aponte's first argument is that her 2004 placement into
removal proceedings - as opposed to her 1999 criminal conviction as
found by the BIA - stopped time for purposes of calculating her
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continuous residency.3 This claim is easily disposed of. Aponte
was lawfully admitted into the United States in 1996. She was
convicted in 1999 of a controlled substance violation,
approximately three years after she was admitted. Aponte was
served with a notice to appear in 2004, approximately eight years
after she was admitted. The stop-time rule explicitly provides
that the "earliest" of either of these two happenings (service with
a notice to appear or conviction of a controlled substance
violation) shall cause a period of continuous residency to end. 8
U.S.C. § 1229b(d)(1). Aponte's criminal conviction was earlier.
Therefore her period of continuous residency ended after three
calendar years, and for reasons to follow, short of satisfying the
seven year continuous residency requirement. This takes us to
argument number two.
Aponte claims that even if the stop-time rule applies,
she still has seven years of continuous residence. Specifically,
according to Aponte, her father, who is now a United States
citizen, entered the United States in 1988. She asserts that his
years in the United States should be imputed to her for purposes of
satisfying the requirement. She made the same argument to the BIA.
The BIA disagreed, relying on its precedent Matter of Ramirez-
3
Aponte does not reach this conclusion by engaging in any
factual or legal analysis. She gets there by simply ignoring the
fact that her criminal conviction plays any role in the continuous
residency equation. It is a spurious argument.
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Vargas, 24 I. & N. Dec. 599 (B.I.A. 2008).4 To this court, Aponte
asserts that Ramirez-Vargas is an "erroneous ruling of law" that we
should reverse. In its stead, Aponte urges us to adopt a Ninth
Circuit case, Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.
2005), which she says supports her claim for imputation of her
father's residency.5 We decline the invitation.
Following two circuits diverging from the path paved by
the Ninth Circuit in Cuevas-Gaspar, see Deus v. Holder, 591 F.3d
807, 811-12 (5th Cir. 2009)(finding reasonable the BIA's refusal to
allow an alien who entered the United States as a minor to impute
her parent's residency in order to satisfy the continuous residency
requirement), Augustin v. Attorney General of the United States,
520 F.3d 264, 270 (3d Cir. 2008)(same), the Supreme Court recently
4
In Ramirez-Vargas, an alien seeking cancellation of removal
could not meet the seven year continuous residency requirement of
§ 1229b(a)(2). See 24 I. & N. Dec. at 599-600. The alien sought
to impute his father's residency in the United States, in
particular the years he had resided with his father as an
unemancipated minor. See id. at 600. The BIA did not allow it,
relying on its earlier holding In re Escobar, in which it had found
no "logical or legal basis to consider the residence of a minor
alien's parents in determining whether the minor acquired the
necessary years of residence," 24 I. & N. Dec. 231, 233 (B.I.A.
2007). See Ramirez-Vargas, 24 I. & N. Dec. at 600-01.
5
In Cuevas-Gaspar, the Ninth Circuit Court of Appeals
concluded that, for purposes of establishing the seven year
continuous residency requirement, "a parent's admission for
permanent residence status is imputed to the parent's unemancipated
minor children residing with the parent." 430 F.3d at 1029.
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took up this parental imputation issue, Holder v. Martinez
Gutierrez, 132 S.Ct. 2011 (2012).6
In Martinez Gutierrez, the Supreme Court considered two
consolidated cases from the Ninth Circuit involving aliens seeking
cancellation of removal. The first alien, Carlos Martinez
Gutierrez, illegally entered the United States in 1989 at the age
of five with his parents. See id. at 2016. Martinez Gutierrez's
father gained LPR status a short time later but Martinez Gutierrez
did not do so until 2003. See id. Two years later he was caught
smuggling aliens across the border and removal proceedings were
instituted. See id. The second alien, Damien Sawyers, having been
preceded by his lawfully admitted mother by six years, legally
entered the United States as a LPR in 1995 at the age of fifteen.
See id. at 2017. After a 2002 drug conviction, removal proceedings
were instituted. See id.
Both aliens sought cancellation of removal; however,
neither met the seven year continuous residency requirement of §
1229b(a)(2) and Martinez Gutierrez also could not satisfy the five
year lawful permanent residence requirement of § 1229b(a)(1). See
Martinez Gutierrez, 132 S.Ct. at 2016, 2017. The aliens tried to
get around this by seeking, as Aponte does, to impute their
parents' years in the United States. See id. In both cases, the
6
This decision was issued after the BIA's decision and after
the parties had briefed this issue to this court.
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BIA, relying on In re Escobar, declined to impute the parents'
years. See Martinez Gutierrez, 132 S.Ct. at 2016, 2017. On
petitions for review, the Ninth Circuit Court of Appeals remanded
the cases to the BIA with instructions to reconsider based on
Cuevas-Gaspar's most recent offspring, Mercado-Zazueta v. Holder,
580 F.3d 1102 (9th Cir. 2009). See Martinez Gutierrez, 132 S.Ct.
at 2017. The government sought certiorari. See id.
The end result: the Supreme Court reversed the Court of
Appeals. See id. Applying Chevron deference,7 it held that the
BIA's conclusion that an alien must meet § 1229b(a)(1) and (2)'s
requirements on his own, "without counting a parent's years of
residence or immigration status" was "based on a permissible
construction of the statute." Martinez Gutierrez, 132 S.Ct. at
2017. The Court reasoned that such an approach is in accord with
the statute's text, which "does not mention imputation, much less
require it" and which calls for the single individual alien to meet
the cancellation prerequisites. Id.
The Court went on to dispose of assorted arguments
advanced by the aliens. We highlight those that mirror Aponte's
contentions. First, the Court rejected the aliens' statutory
7
Aponte claims that Chevron deference is not warranted in her
case because the BIA offered no rational explanation for its
decision. We need not get into the viability of Aponte's premise.
It suffices to note that the BIA adequately explained why Aponte
could not impute her father's residency by relying on its precedent
and explaining why the cases Aponte cited were distinguishable.
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history argument, specifically their reliance on the fact that some
courts, including the BIA, read § 1229b(a)'s predecessor - the
former § 212(c) of the Immigration and Nationality Act (INA) - as
allowing imputation of a parent's domicile. See Martinez
Gutierrez, 132 S.Ct. at 2018. The Supreme Court did not see the
significance. It noted that Congress eliminated the term domicile,
which was contained in § 212(c), from § 1229b(a) and as such the
principles of congressional ratification did not apply. See
Martinez Gutierrez, 132 S.Ct. at 2018.
Another claim rejected by the Supreme Court was that the
INA's purposes demand imputation. See id. at 2019. While
recognizing that the INA is informed by goals of providing relief
to those with strong ties to the Unites States and promoting family
unity, the Court noted that these are not the INA's only goals.
See id. The Court concluded that it could not read a silent
statute as requiring imputation "just because that rule would be
family-friendly." Id.
The Court was also not persuaded by the aliens' attempt
to classify the BIA's approach as inconsistent with its practice of
accepting imputation under similar statutory provisions. See id.
It explained that the reason behind these divergent results is that
the BIA imputes matters involving an alien's state of mind (e.g.,
knowledge of inadmissability or abandonment of LPR status) but not
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objective conditions or characteristics (e.g., residence or LPR
status). See id. at 2020.
The Supreme Court has made our job easy. Not only is
Martinez Gutierrez controlling, but its reasoning is sound. The
BIA's rebuff of Aponte's bid to impute her father's years in the
United States was based on a permissible construction of §
1229b(a).8 Without the benefit of her father's years in the United
States, Aponte fell well short of the seven years of continuous
residence required for cancellation of removal. As such, the BIA
did not abuse its discretion in denying Aponte's request for a
remand and dismissing her appeal based on her failure to establish
eligibility for cancellation of removal.
ii. Asylum, Withholding, and CAT Protection
The other reason the BIA gave for disposing of Aponte's
remand request and appeal was because it found that Aponte did not
demonstrate prima facie eligibility for asylum, withholding of
removal, and CAT protection. Precisely, the BIA stated: "However,
[Aponte's] most recent submissions to the Board, including her
brief, do not present sufficient arguments demonstrating that she
is prima facie eligible for asylum, withholding, or protection
8
It is worth noting that the BIA, without having Martinez
Gutierrez to look to, issued an interpretation that was in accord
with its own precedent, Ramirez-Vargas, which it was obligated to
respect. See Mendez-Barrera v. Holder, 602 F.3d 21, 26 (1st Cir.
2010) (stating that "[a]n administrative agency must respect its
own precedent, and cannot change it arbitrarily and without
explanation, from case to case").
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under the Convention Against Torture." It then added: "Further, a
review of the asylum application, and the very limited evidence
attached to the asylum application, do not demonstrate . . . that
the respondent is now prima facie eligible for asylum, withholding
or protection under the Convention Against Torture."
Unfortunately, as we were in Aponte I, we are faced with an
inadequately reasoned decision.
Here the BIA simply stated that Aponte's submissions did
not demonstrate prima facie eligibility. It made no findings,
relied on no case law, and engaged in no analysis. Moreover, it
offered up no rationale for the decision it reached (e.g., Aponte
did not demonstrate that she is a member of a legally cognizable
social group, or Aponte cannot prove that it is more likely than
not that she will be tortured).9 While we suspect the BIA's
compact decision was a direct result of Aponte's own less than
thorough request for relief, and we are not suggesting that the BIA
should have dedicated pages upon pages to hashing out its merits,
we cannot turn a blind eye to the inadequacy of the decision.
First, although Aponte's request was not the most
perfectly formulated, and the bulk of her attention went to her
cancellation bid, she gave the BIA enough to warrant a merits-based
decision. Aponte claimed membership with a supposed social group,
9
These are just examples. We are not offering any opinion as
to whether such reasons would carry the day.
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articulated a fear of returning to the Dominican Republic, and
submitted a completed application for asylum and withholding with
an attached affidavit and articles about the Dominican Republic's
political and social climate. This is not the stuff of waiver, and
notably the BIA did not say otherwise.
Second, we have a jurisdictional wrinkle. In Larngar v.
Holder, 562 F.3d 71 (1st Cir. 2009), we were tasked with deciding
whether the BIA erred when it denied the petitioner's motion to
reopen based, in part, on his failure to establish prima facie
eligibility for CAT protection. As it is here, our jurisdiction in
Larngar was limited to legal and constitutional issues because, in
that case, the petitioner had been convicted of an aggravated
felony. See id. at 75. In debating the existence of jurisdiction,
we explained that there is a question (never explicitly answered by
this court) as to whether the BIA's determination that a petitioner
has failed to make out a prima facie case for substantive relief is
typically legal or factual in nature. See id. at 79-80. We
hesitated and, in the end, declined to resolve the question because
the BIA's determination that the petitioner had not established
prima facie eligibility for relief was too summary.10 See id. at
80. Instead we remanded. See id. Here the BIA's decision is
10
The BIA remarked: "the respondent's filing is insufficient
to support reopening on the likelihood of it being found 'more
likely than not' that the respondent would be tortured at the hands
of a government official if returned to Liberia." Larngar, 562
F.3d at 79.
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equally summary, if not more so. Our ability to answer the
jurisdictional question, let alone embark on a meaningful inquiry
about the merits, is severely impacted. We do not know whether the
BIA's decision was based on a legal determination, a factual
determination, or something in between. Larngar is analogous and
the route taken there makes sense here.
Finally, and most fundamentally, we do not review
inadequately reasoned decisions.11 As we have said, "it is
extremely problematic for appeals courts to assess an exercise of
the BIA's discretion absent a reasonably clear signal as to the
precise rationale for its exercise of discretion." Onwuamaegbu v.
Gonzales, 470 F.3d 405, 412 (1st Cir. 2006). That is exactly the
problem here. The BIA's treatment was so summary as to constitute
arbitrary and capricious decision making. See Chedid, 573 F.3d at
36.
Accordingly, we conclude that the BIA abused its
discretion when it decided that Aponte failed to make out a prima
facie case for asylum, withholding, and CAT protection, and we set
aside the decision. See id. at 36-37; see also Onwuamaegbu, 470
F.3d at 412. We remand to the BIA with instructions to issue an
11
We have circumvented this rule when the IJ or BIA's grounds
were implicit or the basic rationale could be gleaned. See
Wiratama v. Mukasey, 538 F.3d 1, 6-7 (1st Cir. 2008); Waweru v.
Gonzales, 437 F.3d 199, 203-204 (1st Cir. 2006). This is not the
situation we are faced with here. We have no inkling why the BIA
decided what it did.
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order of clarification explaining the rationale behind its
determination that Aponte did not establish prima facie eligibility
for asylum, withholding of removal, and CAT protection.
iii. Ineffective Assistance of Counsel
Aponte's motion to reopen was based, in part, on her
claim that the attorney who represented her before the IJ provided
ineffective assistance. The supposed deficiency in the attorney's
representation was his failure to request cancellation and
withholding of removal, asylum, and CAT protection. The BIA did
not see things the same way, holding that Aponte's ineffective
assistance of counsel claim failed because she did not establish
prejudice since she is not prima facie eligible for this relief.
See Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007) (stating that
"to succeed on an ineffective assistance of counsel claim,
petitioners must show 'a reasonable probability of prejudice'
resulting from their former representation"). As we said, the
BIA's decision as to Aponte's prima facie entitlement to asylum,
withholding, and CAT protection was inadequate. Because the
question of whether Aponte is eligible for this relief forms the
bedrock of the BIA's ineffective-assistance-of-counsel conclusion,
we cannot properly resolve it on this record.
CONCLUSION
With respect to the BIA's conclusion that Aponte is not
eligible for cancellation of removal, we deny Aponte's petition for
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review and affirm the decision of the BIA. As for the BIA's
determination that Aponte did not demonstrate that she is prima
facie eligible for asylum, withholding of removal, and CAT
protection, we grant Aponte's petition for review and remand to the
BIA for an order of clarification consistent with this opinion.
Finally, regarding the BIA's finding that Aponte has not
established ineffective assistance of counsel, we grant the
petition for review and remand. No order of clarification is
needed with respect to this issue; we only remand as resolution of
this and the prima facie issue are inextricably tied.
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