Caldero-Guzman v. Holder, (1st Cir. 2009)
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United States Court of Appeals
For the First Circuit
No. 08-2325
LUIS ALONZO CALDERO-GUZMAN,
Petitioner,
v.
ERIC HOLDER, JR.,
United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Selya and Ebel,
[1]
Circuit Judges.
Robert M. Warren on brief for petitioner.
Michael F. Hertz, Acting Assistant Attorney General, Civil
Division, Anthony Wray Norwood, Senior Litigation Counsel, Office
of Immigration Litigation and Terri J. Scadron, Assistant Director,
United States Department of Justice, Office of Immigration
Litigation, on brief for respondent.
June 19, 2009
HOWARD, Circuit Judge. Luis Caldero-Guzman ("Caldero"),
a national of El Salvador, petitions for judicial review of the
Board of Immigration Appeals' ("BIA") decision affirming an
Immigration Judge's ("IJ") denial of his motion to reopen his
deportation proceedings after an in absentia deportation order was
entered against him in 1989. Caldero had hoped to reopen the
proceedings so as to adjudicate his application for cancellation of
removal under the Nicaraguan Adjustment and Central American Relief
Act ("NACARA"), Pub. L. No. 105-100, § 203, 111 Stat. 2160, 2196
(1997), set forth at 8 U.S.C. § 1101 note. Lacking jurisdiction
over one of Caldero's claims, and finding no error of law or abuse
of discretion in the BIA's disposition of this matter, we dismiss
the petition in part, and deny it as to the rest.
I. BACKGROUND
In 1988, Caldero entered the United States, was detained
by the former Immigration and Naturalization Service ("INS"), and
was placed into deportation proceedings for having entered the
United States without inspection. In April 1989, proceeding pro
se, Caldero attended an Immigration Court hearing and was granted
a continuance, his second, to allow him additional time to obtain
counsel; his hearing was reset for July, 1989, and the record
reflects that he was advised of the new date.
[2]
Before the
continuance was granted, Caldero signed a written statement
attesting, "If a continuance is granted, I will follow the order of
the Court and appear on the appointed date, just as I have appeared
today for this hearing." On the appointed date in July, however,
Caldero did not appear, and after finding that the INS had proved
his deportability (now called removability) by "clear, convincing,
and unequivocal" evidence, the Immigration Judge ordered him
deported in absentia. The record reflects that the deportation
order was served on Caldero by mail at his last known address,
which Caldero himself had supplied at a prior hearing.
[3]
In 2003, Caldero filed for relief under NACARA.
[4]
In
2004, during an interview with the Department of Homeland Security
("DHS"), Caldero was advised that because he had an outstanding
deportation order against him and had missed NACARA's September 11,
1998 deadline for untimely motions to reopen for purposes of
obtaining a cancellation of removal, see 8 C.F.R. § 1003.43(e)(1),
he could not apply for NACARA relief.
In 2006, Caldero filed the instant motion to reopen the
deportation proceedings against him, arguing that he was never
provided notice of the in absentia deportation order, and therefore
he could not have known that the 1998 deadline applied to him. The
motion further argued that his "serious physical and mental health
issues," namely, the debilitating effects of the AIDS and Kaposi's
Sarcoma diseases with which he has been afflicted since 1995,
"require his presence in the United States for continued
treatment," and that his health will deteriorate due to lack of
appropriate medical care if he is returned to El Salvador. The
motion, however, omitted any explanation for his failure to attend
the July 1989 deportation hearing.
The IJ denied Caldero's motion in a written decision.
The IJ first found that the outstanding deportation order was
valid, noting that Caldero had "received adequate notice of his
deportation hearing and nonetheless failed to appear," and that
Caldero had provided no adequate excuse for the failure. The IJ
emphasized that Caldero's health problems, which began in 1995, and
his concerns about the difficulties he will encounter if deported
were both irrelevant to the legitimacy of the deportation order
entered against him or to whether he had adequate notice of it.
The IJ then found that Caldero "cannot claim that ignorance of his
deportation order excuses a delay of over seventeen years," since
Caldero was put on notice by the 1988 Order to Show Cause that
"[f]ailure to attend the hearing . . . may result in a
determination being made by the Immigration Judge in your absence,"
was advised of the date and time for his July 1989 hearing, and was
informed of the deportation order against him by mail. Finally,
the IJ found that Caldero could not reopen his deportation
proceedings pursuant to NACARA. Characterizing Caldero's
application under NACARA as seeking cancellation of removal, not
the adjudication of an asylum claim, the IJ found that Caldero had
failed to comply with the September 11, 1998 deadline to file a
motion to reopen for adjudication of a cancellation of removal
claim. And to the extent that Caldero sought to reopen his
deportation order for the consideration of an asylum claim, the IJ
noted that Caldero had failed to show the requisite change in
country conditions.
The BIA dismissed Caldero's appeal in a separate written
decision. As to the validity of the in absentia deportation order,
the BIA acknowledged that "lack of notice may constitute reasonable
cause for missing a hearing," but found that because Caldero knew
of the July 1989 hearing, signed the written statement agreeing to
appear, and failed to allege that he lacked notice of the hearing,
he had not shown lack of notice nor any other reasonable cause for
failing to appear at his hearing. In a footnote, the BIA noted
that any application made for cancellation of removal pursuant to
NACARA was untimely because the motion to reopen was made after
NACARA's September 11, 1998 deadline. Finally, the BIA rejected
Caldero's request to reopen his deportation order on its own
motion, stating, "[W]e do not find that the circumstances of this
case warrant the exercise of our limited discretion to reopen sua
sponte."
II. STANDARD OF REVIEW
Because the BIA independently evaluated the record and
reached its own legal conclusions, we focus our review on the
decision of the BIA as opposed to that of the IJ. Pulisir v.
Mukasey, 524 F.3d 302, 307-08 (1st Cir. 2008).
"We review the BIA's denial of the motion to reopen for
abuse of discretion, setting aside a decision only where it rests
on an error of law or reflects arbitrary or capricious decision-making." Oliveira v. Holder, F.3d , No.08-2494, 2009 WL
1547742, *1 (1st Cir. June 4, 2009) (citing Arias-Valencia v.
Mukasey, 529 F.3d 428, 430 (1st Cir. 2008); 8 C.F.R. § 1003.2(a))
(footnote omitted); see also Guerrero-Santana v. Gonzales, 499 F.3d
90, 92 (1st Cir. 2007) ("Motions to reopen removal proceedings are
disfavored as contrary to 'the compelling public interests in
finality and the expeditious processing of proceedings.'" (quoting
Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007))).
III. DISCUSSION
Caldero mounts three challenges to the BIA's decision,
none of them persuasive. First, he argues that the BIA erred in
failing to reopen his case sua sponte, both because the IJ failed
to analyze Caldero's allegedly exceptional circumstances, and
because those circumstances warrant reopening. We disagree with
Caldero's premise that the IJ failed to consider the circumstances
he adverts to, namely, his health problems, his alleged lack of
notice of the deportation order, and the difficulties he
anticipates were he deported to El Salvador; these issues were
explicitly addressed in the IJ's order. But whether the IJ
addressed Caldero's circumstances is beside the point, for our
circuit precedent makes clear that we lack jurisdiction to review
the BIA's refusal to reopen a deportation order sua sponte.
Peralta v. Holder, F.3d , No. 08-2073, 2009 WL 1475557, at
*3 (1st Cir. May 28, 2009); Luis, 196 F.3d at 40.
Caldero's second argument, no more successful, is that
the BIA abused its discretion by failing to make a finding of fact
as to whether Caldero had actual notice of the requirement to file
his motion to reopen by NACARA's September 11, 1998 deadline, or
whether Caldero's failure to file by that date was due to
circumstances beyond his control. No such findings of fact were
necessary. There is no dispute that Caldero knew, from the 1988
Order to Show Cause, that his failure to attend a deportation
hearing could result in an in absentia deportation order. Nor is
it disputed that Caldero was notified of, and agreed to attend, his
July 1989 hearing. Thus, the threshold question before the BIA was
whether Caldero had shown an adequate excuse for his failure to
attend his July 1989 hearing, see 8 U.S.C. § 1252(b) (1988);
[5]
his
failure to make any argument on this score at all to the BIA sealed
the fate of his appeal, as Caldero provided the BIA with no reason
to reopen the deportation order at all and thus no reason to
inquire into the reasons Caldero missed NACARA's filing deadline.
The government notes that Caldero's brief may also
suggest an equitable tolling claim. Caldero's alleged lack of
actual notice of the deportation order and of the NACARA deadline
for motions to reopen of September 11, 1998 conceivably could be
relevant to an equitable tolling argument, but Caldero has offered
no authority suggesting that equitable tolling principles may be
applied to the NACARA motions deadline, nor has he developed any
legal argument in support of that conclusion. The argument is thus
waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").
[6]
Additionally, even assuming the doubtful premise that
Caldero would be able to show the due diligence required for
equitable tolling, see, e.g., Ouk v. Mukasey, 551 F.3d 82, 83 (1st
Cir. 2008), we note that he did not proffer an explanation to the
BIA for his delay in filing his motion to reopen -- filed in 2006,
roughly eight years after the NACARA deadline expired and two years
after the DHS interview. This alone would seem enough to defeat an
argument for equitable tolling. Makhoul v. Ashcroft, 387 F.3d 75,
80 (1st Cir. 2004) ("[T]heories not advanced before the BIA may not
be surfaced for the first time in a petition for judicial review of
the BIA's final order.").
Caldero's final argument is that we "should require the
[BIA] to state its reasons and show proper consideration to all
factors when weighing equities and denying relief," by which he
appears to mean that the reasoning in the BIA's order was
insufficient. We disagree. The BIA offered a specific and cogent
statement of the relevant facts and correctly applied the
applicable law. The rationale for the decision is clear -- Caldero
had notice of the July 1989 hearing, failed to attend, and did not
show reasonable cause for that failure -- and there is no sign that
it failed to consider relevant evidence or law, or that it
otherwise abused its discretion.
The three Ninth Circuit cases Caldero cites in support of
this argument are neither binding upon us nor contrary to our
conclusions. In Tukhowinich v. INS, 64 F.3d 460 (9th Cir. 1995),
the BIA wrongly stated that the IJ had considered certain evidence
relevant to the petitioner's appeal. Id. at 463. In Georgia v.
INS, 90 F.3d 374 (9th Cir. 1996), the BIA "failed to adhere to the
requirement that it weigh both favorable and unfavorable factors
and did not properly explain the basis for its decision." Id. at
376. In Arrozal v. INS, 159 F.3d 429 (9th Cir. 1998), the BIA
erred "by failing to consider all [of the petitioner's] favorable
factors and by not weighing those favorable factors against the
negative factors that [it] thoroughly discussed." Id. at 435. We
find nothing in the record to indicate that the BIA made any of
these errors here.
This is not to say that Caldero's petition is wholly
unsympathetic; we are cognizant of his health difficulties and of
the treatment regimen his doctor advocates. But judicial review of
the BIA's decisions is circumscribed by statute, and within the
scope of that review, we have no justification for granting
Caldero's petition. The petition is therefore DISMISSED in part,
and otherwise DENIED.
Footnotes
[1] 'Of the Tenth Circuit, sitting by designation.
[2] 'This hearing was not transcribed, but the in absentia
deportation order notes that "[t]he respondent was duly notified of
the time and place of the hearing," and Caldero has not challenged
the fact that he was advised of the new hearing date.
[3] 'The record evidence contains neither affirmative proof that
Caldero received the mailing nor an indication that the mail was
returned to the sender. We note, however, that there is no genuine
dispute as to whether a copy of the deportation order was mailed to
Caldero at his last known address; Caldero's contention, discussed
below, is simply that he was unaware of the outstanding order.
[4] 'We assume arguendo for purposes of this review that Caldero
is eligible for the relief he seeks under NACARA.
[5] 'The parties appear to disagree about the relevant standard to
be applied in assessing an excuse for Caldero's failure to appear
for his July 1989 hearing. Caldero's arguments discussing
"exceptional circumstances" appear to draw upon the standard
articulated in 8 U.S.C. § 1252b(c)(3) (1994), later recodified at
8 U.S.C. § 1229a(b)(5) (Supp. II 1997), which requires an alien
seeking to reopen an in absentia removal order to show either that
he did not receive notice of the removal hearing, or that his
failure to appear was a result of "exceptional circumstances." In
contrast, the government argues in its brief that the "reasonable
cause" standard of 8 U.S.C. § 1252(b) (1988) applies; that was the
statute and standard used by the BIA. Which of these standards
applies and what the difference is between the two, however, are
not material questions for this case, as Caldero has not made any
argument at all as to why he did not attend his July 1989 hearing,
and he thus fails to satisfy either test.
[6] 'We reserve judgment on both the availability of such tolling
in future cases and on our ability to review the BIA's decisions as
to this issue.
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