United States Court of Appeals
For the First Circuit
No. 10-2246
YENNY ADRIANA GOMEZ-MEDINA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Benjamin B. Tairi on brief for petitioner.
Manuel A. Palau, Trial Attorney, Office of Immigration
Litigation, Tony West, Assistant Attorney General, Civil Division,
Department of Justice, and Terri J. Scanlon, Assistant Director,
Civil Division, on brief for respondent.
July 27, 2012
LYNCH, Chief Judge. Yenny Adriana Gomez-Medina, a
Colombian national and citizen, petitions for review of a September
21, 2010, final order of removal by the Board of Immigration
Appeals (BIA). Petitioner and her counsel ignored and failed to
comply with direct orders from the Immigration Judge (IJ), who
found their purported justifications for non-compliance far from
adequate. The IJ denied a last-minute request to continue the
long-scheduled hearing and deemed Gomez-Medina's applications for
relief abandoned. The BIA agreed on all accounts. We deny her
petition.
I.
On June 14, 2006, Customs and Border Patrol (CBP) agents
stopped Gomez-Medina at a CBP checkpoint in New Hampshire.
Gomez-Medina failed to produce valid immigration documents, and the
CBP issued a Notice to Appear charging that she was removable as an
alien present in the United States without having been admitted or
paroled by immigration authorities, pursuant to the Immigration and
Nationality Act. 8 U.S.C. § 1182(a)(6)(A)(i). It is not clear
when Gomez-Medina made her unauthorized entry into the United
States. Petitioner once asserted it was in May of 1995, but later
disclaimed that date of entry. The 1995 date predated the events
which were alleged as the basis for her application for relief.
On July 30, 2007, more than a year after she was
apprehended and her removal proceedings had begun, Gomez-Medina
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filed an application for asylum, withholding of removal, and
Convention Against Torture (CAT) protection in the immigration
court. The gravamen of Gomez-Medina's application is that, on or
about October 26, 2001, while living in Colombia, she was with
friends on a public transit bus that was attacked by the Colombian
paramilitary group FARC (Revolutionary Armed Forces of Colombia).
FARC guerillas removed and killed five passengers on the bus, but
released Gomez-Medina. However, because of what she witnessed, and
in light of other problems some of her family members have had with
FARC, Gomez-Medina says she fears that harm will befall her and her
family if she returns to Colombia.
Gomez-Medina's case was before the immigration court for
almost two years. During this period, the IJ held three hearings
on January 27, 2007, August 27, 2007, and November 13, 2008, and
granted one continuance. Gomez-Medina was represented by counsel
at all of these hearings.
At the hearing on January 27, 2007, the IJ directed
Gomez-Medina to make several submissions to the court. First, at
least thirty days prior to the hearing on August 27, 2007,
Gomez-Medina was to submit: (1) a declaration or any documentation
setting forth the details of her entry into the United States, and
(2) a brief addressing the applicability of the one-year bar for
asylum claims to her application. In addition, in accordance with
governing Department of Homeland Security (DHS) regulations,
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Gomez-Medina was to request initial biometric data processing (i.e.
fingerprinting) by March 12, 2007. The IJ also issued Standing
Orders, which stated that failure to comply with any of these
directives could result in dismissal of the underlying claims.
By the status hearing on August 27, 2007, petitioner had
complied with only the IJ's directive to secure initial biometric
processing. The IJ granted petitioner a continuance of over a year
to prepare her case and ordered that the previously requested
declaration and brief be submitted at least thirty days prior to
the merits hearing scheduled for November 13, 2008. Additionally,
because the DHS required that biometric data be updated every
fifteen months, the IJ ordered Gomez-Medina to secure new
fingerprinting in accordance with the governing regulations. The
IJ reiterated the potential consequences for failure to comply with
these orders -- namely, dismissal with prejudice. Gomez-Medina's
counsel confirmed that he understood both the IJ's orders and the
consequences attached to them.
The merits hearing commenced as scheduled on November 13,
2008. Both Gomez-Medina and her counsel had failed to comply with
any of the IJ's outstanding directives by this time. Nearly two
years after the documents were originally requested, Gomez-Medina
had not submitted a declaration on the details of her entry into
the United States or a brief on the one-year filing limitation for
asylum. Gomez-Medina had also not updated her fingerprints.
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Counsel offered several excuses for failing to comply
with these directives. With respect to petitioner's failure to
file a declaration and brief, counsel cited to an emergency motion
for continuance he filed on the day before the merits hearing. The
motion stated that in late October 2008 counsel had received a
Colombian newspaper article confirming that Gomez-Medina had been
on the bus attacked by FARC. Counsel said he had not submitted the
court ordered documents because he had not had sufficient time to
incorporate this newfound clipping.1 In response to the IJ's
questioning, counsel conceded that Gomez-Medina had not filed for
asylum within the one-year time limit and provided no explanation
as to why an exception might apply to her application. With
respect to updating Gomez-Medina's biometric data, counsel stated
that he had misunderstood the IJ's August 2007 order and mistakenly
believed that Gomez-Medina's biometrics were still valid.
At the hearing's close, the IJ issued an oral decision
denying a further continuance and dismissing petitioner's claims as
abandoned, for failure to comply with his outstanding orders.
Gomez-Medina had abandoned her claim for asylum by failing to
submit a declaration addressing the time, place, and manner of her
entry into the United States and a brief addressing whether she was
in compliance with the one-year time limit for asylum claims (or
1
The motion also stated that, due to a spring pregnancy,
Gomez-Medina had not been able to prepare for the November hearing.
She appeared at the hearing along with counsel.
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entitled to an exception to this limit). The IJ noted that, no
matter its contents, the Colombian newspaper article would not bear
on either of those required submissions. The IJ then dismissed
Gomez-Medina's claims for withholding and CAT protection due to her
expired biometric data.
On September 21, 2010, the BIA issued an opinion
affirming the IJ's decision and dismissing Gomez-Medina's timely
appeal. In her appeal, petitioner asserted that the IJ erred in
not considering her emergency motion to continue. She also
asserted a new reason for her failure to secure updated
fingerprints: she said she had applied to the United States Citizen
and Immigration Services for new fingerprinting in November of
2007, but she had never received an appointment.
The BIA rejected all of Gomez-Medina's claims. It
determined that she had been afforded an opportunity for a full and
fair hearing and that she had failed to show good cause for her
emergency continuance and her failure to comply with the IJ's
orders.
II.
Where, as here, the BIA adopts, affirms, and further
supports an IJ's decision, we review both opinions, Kartasheva v.
Holder, 582 F.3d 96, 105 (1st Cir. 2009), in light of the
administrative record, 8 U.S.C. § 1252(b)(4)(A). We review any
legal conclusions de novo, "subject to appropriate principles of
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administrative deference," Larios v. Holder, 608 F.3d 105, 107 (1st
Cir. 2010), and accept all findings of fact "that are supported by
substantial evidence on the record as a whole," Morgan v. Holder,
634 F.3d 53, 57 (1st Cir. 2011).
A. Denial of Continuance
Counsel for Gomez-Medina argues that the IJ erred in
failing to consider her emergency motion to continue. But the
record is clear that the IJ considered petitioner's motion and
denied it. We review a denial of continuance under the deferential
abuse of discretion standard, Alsamhouri v. Gonzales, 484 F.3d 117,
122 (1st Cir. 2007), and will reverse only where "the IJ 'made an
error of law or acted in a manner that is arbitrary or
capricious,'" Lopez v. Mukasey, 269 F. App'x 8, 11 (1st Cir. 2008)
(quoting Cruz-Bucheli v. Gonzales, 463 F.3d 105, 107 (1st Cir.
2006)).
In considering and denying Gomez-Medina's motion, the IJ
did not abuse his discretion. IJs are afforded broad authority to
impose deadlines for court filings. 8 C.F.R. §§ 1003.31(c),
1240.1(c). This authority reflects "the government's strong
interest in the orderly and expeditious management of immigration
cases." Alsamhouri, 484 F.3d at 123. Where a litigant attempts to
extend these deadlines through a motion to continue, an IJ "may"
grant that motion "for good cause shown." 8 C.F.R. § 1003.29.
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The record shows that for nearly two years, petitioner
failed to abide by the IJ's directives without furnishing a
reasonable justification. Moreover, her emergency motion -- filed
one day prior to a hearing she had enjoyed more than a year to
prepare for -- in no way mitigated her prior or continued
delinquency. The motion did not explain why petitioner had failed
to secure updated biometric data; in fact, it did not address the
subject at all. Further, the motion's impetus -- the newly
acquired newspaper clipping -- was irrelevant to the filings
previously requested by the IJ.
The IJ was well within his discretion, on these facts, to
deny the petitioner's motion for lack of good cause. See Juarez v.
Holder, 599 F.3d 560, 566 (7th Cir. 2010) (affirming denial of
continuance where petitioners had "over a year to comply" with
biometric requirements and failed to do so); see also Alsamhouri,
484 F.3d at 123-24 (affirming denial of continuance where
petitioner disregarded deadline to file an asylum application and
submit a memorandum on one-year filing time limit).
B. Dismissal of Claims as Abandoned
Gomez-Medina argues that the IJ's dismissal of her claims
for relief as abandoned was improper and that the dismissal -- in
conjunction with the BIA's affirmance -- violated her right to a
full and fair hearing under the Due Process Clause. She is
incorrect on both fronts.
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The IJ dismissed Gomez-Medina's claims on the basis of
her failure to comply with three separate court orders: (1) to
submit a declaration on the time, place, and manner of her entry;
(2) to submit a brief on the one-year limit for her asylum claim;
and (3) to update her biometric data. Generally, we review an IJ's
dismissal for abuse of discretion where, as here, it is based upon
a petitioner's failure to abide by court-ordered filing deadlines.
See Karim v. Mukasey, 269 F. App'x 5, 7 (1st Cir. 2008) (per
curiam); Alsamhouri, 484 F.3d at 123; see also 8 C.F.R.
§ 1003.31(c) ("The Immigration Judge may set and extend time limits
for the filing of applications and related documents . . . . If an
application or document is not filed within the time set by the
Immigration Judge, the opportunity to file that application or
document shall be deemed waived.").
The IJ did not abuse his discretion here. Petitioner's
application for asylum was her strongest claim for relief.
However, she failed to submit either of the court-ordered documents
necessary to resolve that claim. Moreover, the petitioner conceded
that she had not filed for asylum within the one-year time limit
and offered no grounds for a finding that she was subject to any
exception. It is also clear that there were no good reasons for
any of the petitioner's failures to comply with the IJ's
outstanding orders. Indeed, several of the excuses offered
suggested a lack of candor on the part of both the petitioner and
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her counsel. One continuance had already been given, and there was
ample time to prepare for the November hearing.
The system for hearing cases for relief from removal
takes considerable time. There is a strong public interest in
compliance with immigration court deadlines, whether they are
statutory, regulatory, or those set by judges. See, e.g.,
Caldero-Guzman v. Holder, 577 F.3d 345, 348-49 (1st Cir. 2009)
(affirming dismissal for failure to abide by regulatory deadline);
Alsamhouri, 484 F.3d at 123. There is also a strong interest in
not allowing manipulations of the system in order to cause delay.
See Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003) (noting
that immigration regulations were adopted, in part, to combat
dilatory tactics by aliens that "effectively extended their stay in
this country").
We have specifically noted disapproval of continuances
sought for purposes of delay. See Alsamhouri, 484 F.3d at 123
(affirming denial of continuance and dismissal where delay resulted
from petitioner's "disregard of a known deadline"); see also
Kaweesa v. Gonzales, 450 F.3d 62, 70 (1st Cir. 2006) (permitting
delay where petitioner had not made deliberate efforts "to delay
[the] proceedings"); Herbert, 325 F.3d at 72 n.1 (permitting delay
where it was not "a ploy to avoid the deportation hearing"). This
case evokes such dilatory purposes.
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Beyond petitioner's failure to submit a declaration and
brief, updated biometric data is a prerequisite for every form of
relief she sought. 8 C.F.R. § 1003.47(b)(1), (7). Failure to
update biometric data "within the time allowed by the immigration
judge's order[] constitutes abandonment of the application . . .
unless the applicant demonstrates that such failure was the result
of good cause." Id. § 1003.47(c).
This circuit has not set the standard of review for a
dismissal of claims under section 1003.47(c). However, other
circuits have applied an abuse of discretion standard in affirming
dismissals on this ground. See Quinteros Ramos v. Holder, 412 F.
App'x 2, 3-4 (9th Cir. 2010) (per curiam); Umezurike v. Holder, 610
F.3d 997, 1001-02, 1004 (7th Cir. 2010). In light of these
holdings, and the section's discretionary language, 8 C.F.R.
§ 1003.47(c) (an IJ "may enter an appropriate order dismissing the
application" for failure to update biometric data) (emphasis
added)), an abuse of discretion standard is appropriate for our
review in these circumstances. There was no abuse here.
Finally, there was no denial of petitioner's due process
rights. As the BIA noted, Gomez-Medina was given the opportunity
for a full hearing under the governing regulations. By her conduct
in not complying with a series of reasonable and clear deadlines,
and not being ready for her scheduled hearings, she ran a
considerable risk. There was nothing unfair about the consequences
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that followed. Umezurike, 610 F.3d at 1004 (denying due process
claim where IJ dismissed application for relief as abandoned for
failure to abide by court-imposed deadlines); Alsamhouri, 484 F.3d
at 124-25.
III.
The petition for review is denied.
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