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

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,

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.



         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.






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 **** 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

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

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.



         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.



         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

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.



         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

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.