Ghazarian v. Lynch
Filing
OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Sandra L. Lynch, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Unpublished. [15-1725]
Case: 15-1725
Document: 00117141101
Page: 1
Date Filed: 04/12/2017
Entry ID: 6083396
Not for Publication in West's Federal Reporter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.
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April 12, 2017
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HOWARD, Chief Judge.
Date Filed: 04/12/2017
Entry ID: 6083396
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
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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.
for
relief
did
not.
But Ghazarian's various applications
Instead,
Ghazarian
filed
a
extension of time, which the IJ then summarily denied.
motion
for
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
1
Though a confusing exchange regarding dates followed, July
25, 2013 remained the deadline for filing applications for relief.
This gave Ghazarian 120 days to file.
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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 firstline authority for case-management decisions."
Moreta v. Holder,
723 F.3d 31, 33—34 (1st Cir. 2013); see also Morgan v. Gonzales,
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445
Document: 00117141101
F.3d
549,
551
(2d
scheduling decisions).
Page: 6
Cir.
2006)
Date Filed: 04/12/2017
(declining
to
Entry ID: 6083396
micromanage
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).
no
discretion
abuse
of
where,
as
We have previously found
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.
we find no abuse of the IJ's broad discretion.
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Therefore,
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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.
id.
Our review of that claim is de novo.
See
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
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487, 492 (1st Cir. 2005).
Date Filed: 04/12/2017
Entry ID: 6083396
"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."
impermissible
ex
parte
Even if we accept, arguendo, that
communication
occurred,
Ghazarian
has
failed to show that she suffered any harm, and therefore we find
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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.
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