Arevalo v. Barr

950 F.3d 15

• Court: Court of Appeals for the First Circuit
• Decided: February 14, 2020
• Docket: 18-1834P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 18-1834 19-1250

SELVIN OVIDIO AREVALO,

Petitioner,

v.

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITIONS FOR REVIEW OF ORDERS OF THE BOARD OF IMMIGRATION APPEALS

Before

Kayatta, Selya, and Stahl, Circuit Judges.

David C. Bennion, with whom Free Migration Project was on brief, for petitioner. Lindsay Corliss, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, John S. Hogan, Assistant Director, Office of Immigration Litigation, Daniel E. Goldman, Senior Litigation Counsel, Office of Immigration Litigation, and Andrea N. Gevas, Trial Attorney, Office of Immigration Litigation, were on brief, for respondent.

February 14, 2020 SELYA, Circuit Judge. In its present posture, this case

turns largely on the meaning of the word "recalendar," as that

word is used in the immigration context. Here, the parties

supplied no particularized meaning for the word when they used it

in the pertinent pleadings. Because the word is not specifically

defined either in any applicable statutory provision or in any

relevant regulation, we give "recalendar" its plain and natural

meaning. The Board of Immigration Appeals (BIA) interpreted the

word correctly and applied it faithfully. Accordingly, we uphold

the challenged orders and deny the two petitions for judicial

review.

The petitioner, Selvin Ovidio Arevalo, is a Guatemalan

national. He entered the United States in 2000 at age fourteen

without documentation. The government initiated removal

proceedings against the petitioner in 2010, charging him with

removability under 8 U.S.C. § 1182(a)(6)(A)(i), (a)(7)(A)(i)(I).

The petitioner conceded removability but cross-applied

for asylum and withholding of removal, claiming persecution on

account of both political opinion and membership in a particular

social group. See 8 U.S.C. §§ 1158(b)(1), 1231(b)(3)(A). At the

same time, he sought protection under the United Nations Convention

Against Torture (CAT). All of his claims were based on his

concerns about violent gang recruitment of young, apparently

wealthy adults in Guatemala.

- 2 - After a hearing, an immigration judge (IJ) denied the

petitioner's claim for asylum as untimely, see id. § 1158(a)(2)(B),

noting that, had the claim been timely filed, she would have denied

it on the merits. And although the IJ credited the petitioner's

testimony, she concluded that the petitioner's generalized fear of

dangerous and violent conditions did "not give rise to a basis for

a claim for . . . withholding of removal." Finally, the IJ found

no evidence that the petitioner would be subject to torture "by or

at the instigation of or with the consent or acquiescence of a

public official," 8 C.F.R. § 1208.18(a)(1), should he be

repatriated. Accordingly, she denied the petitioner's CAT claim.

The petitioner appealed to the BIA. On November 18,

2010, the BIA upheld the IJ's decision, finding that the petitioner

was not entitled to asylum, withholding of removal, or CAT

protection. The petitioner filed a timely petition for judicial

After the petition for review was docketed and fully

briefed, we entered an order, with the parties' consent, remanding

the case to the BIA. Our remand order was premised on the

government's representation that it intended to exercise

prosecutorial discretion with respect to the petitioner, at least

temporarily, by administratively closing the case. When

remanding, though, we retained jurisdiction over the petition for

- 3 - Once the case had been remitted to the BIA, the

government filed an unopposed motion to close the proceedings

administratively. The government's motion explained that if

"either party" desired for any reason "to place this matter back

on the active calendar or docket, that party w[ould] file a motion

to recalendar with this Board." The BIA granted the unopposed

motion and administratively closed the case in April of 2013.

Shortly thereafter, the parties filed a stipulation of

dismissal in this court. Although the order closing the case did

not expressly address the status of the November 18 decision, the

parties filed a stipulation making pellucid that the

administrative closure removed the entry of that decision from the

docket. In the parties' words: "there is no longer a final order

of removal." This construction provided two benefits to the

petitioner: it clarified that he was not subject to a live order

of removal; and it effectively preserved his ability to reactivate

his petition for review of the November 18 decision should the

administrative closure be revoked.

Consistent with the parties' agreement, we dismissed the

pending petition for judicial review and entered a judgment of

voluntary dismissal. Thereafter, the case laid dormant for

approximately five years. But after the 2016 presidential election

and the ensuing change in administration, the government rethought

its earlier decision to exercise prosecutorial discretion

- 4 - favorably to the petitioner and moved before the BIA to "reinstate"

the case. The petitioner offered no objection, and the BIA granted

the motion: it decreed that its "original decision of November

18, 2010, now takes effect."

Displeased with the BIA's reinstatement of its earlier

decision, the petitioner filed a new petition for judicial review

on August 29, 2018. The same day, the petitioner asked the BIA to

reconsider its order reinstating its earlier decision. Eschewing

the merits of his claims for asylum, withholding of removal, and

CAT protection, the petitioner's motion to reconsider focused

exclusively on the BIA's order reinstating its earlier decision.

On February 7, 2019, the BIA issued a written rescript denying the

petitioner's motion to reconsider. The petitioner responded by

filing yet another petition for judicial review. Once briefs were

filed, we scheduled both petitions for oral argument on January 7,

2020; heard argument on both petitions as a unit; and took the

matter under advisement.

The petitions for review, taken collectively, raise a

common issue: whether the BIA acted appropriately in placing the

case back on its docket and proceeding from where it left off

before the case was administratively closed. This issue turns on

the meaning of "recalendar," as that word was used by the parties

in the government's unopposed motion, which led to the

administrative closure.

- 5 - "Administrative closure is a procedural convenience that

may be granted if both parties to the removal proceedings agree,

but it does not constitute a final order." Lopez-Reyes v.

Gonzales, 496 F.3d 20, 21 (1st Cir. 2007). Instead, administrative

closure "temporarily removes a case from . . . the Board's docket."

Id. Such a temporary displacement of a case from the BIA's active

docket effectively pauses the case. Following an administrative

closure, either party may seek to undo the pause — as the

government did here — by filing a motion to reinstate.

In this instance, the government's motion to reinstate

was unopposed. When the BIA granted the unopposed motion, it

recalendared the case, that is, it put the petitioner right back

where he was before the parties agreed to the closure: subject to

an operative order of removal, yet still able to secure appellate

review. The petitioner takes umbrage: he points out that several

years had passed since the case was administratively closed and

argues that the BIA, either directly or by recourse to the IJ, had

an obligation to explore interim developments before reinstating

its earlier decision. We do not agree.

The propriety of the BIA's action hinges on the meaning

of the word "recalendar" — the key word in the government's

unopposed motion for administrative closure. The parties concede

that no applicable statute or regulation supplies a definition of

the word "recalendar" as used in this context. We therefore

- 6 - interpret the word according to its plain and natural meaning.

Cf. Correia v. Fitzgerald, 354 F.3d 47, 55 (1st Cir. 2003)

(explaining that "[c]ourts should construe stipulations in

accordance with accepted principles of general contract law");

Smart v. Gillette Co. Long-Term Disab. Plan, 70 F.3d 173, 178 (1st

Cir. 1995) (stating that canon of contract interpretation "teaches

that contracts containing unambiguous language must be construed

according to their plain and natural meaning").

We conclude that "recalendar" means simply to reinstate

the case to the active docket in the same posture as it occupied

when it was paused for administrative closure. The dictionary

defines the prefix "re-" as "again" and notes that it is to be

"joined" to a "second element." Webster's Third New International

Dictionary of the English Language Unabridged 1888 (Philip Babcock

Gove ed., 2002). Here, the second element is the verb "calendar,"

which means "to enter (as a name or event) in a calendar or list."

Id. at 316. Thus — in the present context — "recalendar" means to

enter on the calendar again. That is exactly what the BIA did.

Its 2018 order, like the government's motion, used the word

"reinstate," and the accepted meaning of reinstate is "to . . .

place again (as in . . . a former position)" or "to replace in an

original or equivalent state." Id. at 1915. In other words, the

BIA recalendared the petitioner's case by reinstating it, that is,

by placing it back on the active docket in essentially the same

- 7 - posture that it occupied immediately before the administrative

closure occurred. It again became a fully briefed administrative

appeal from the IJ's order of removal, awaiting only the entry of

a final decision by the BIA.

In an effort to draw the sting from this reasoning, the

petitioner argues that the five-year hiatus between the

administrative closure and the case's reinstatement resulted in a

final resolution based on an "old and stale record." He argues

that due process required a new hearing to explore the effects of

the passage of time on his claims for relief. This argument is

woven out of whole cloth, devoid of any citation to relevant

authority.

We add, moreover, that — as the petitioner's counsel

acknowledged at oral argument — the petitioner could have asked

the BIA either to reopen the case, see 8 C.F.R. § 1003.2(a), or to

vacate the judgment and remand to the immigration court, see Falae

v. Gonzáles, 411 F.3d 11, 14 (1st Cir. 2005) (noting that relevant

statutes and regulations do not "recognize motions to remand as

such," but motions to remand may be treated as motions to reopen).1

He did neither — and he cannot ask this court for relief that he

did not seek before the agency. See García v. Lynch, 821 F.3d

1 Each of these motions offered the petitioner essentially the same potential remedy. See Falae, 411 F.3d at 14 (treating motion to remand as motion to reopen and reviewing for abuse of discretion).

- 8 - 178, 181-82 (1st Cir. 2016) (explaining that failure to raise

argument before BIA precludes judicial review); cf. Meng Hua Wan

v. Holder, 776 F.3d 52, 58 (1st Cir. 2015) ("Courts and agencies,

like the Deity, tend to help those who help themselves.").

To be sure, the petitioner did file a motion to

reconsider before the BIA. The filing of this motion, though, did

not gain him any traction. Rather than asserting some substantive

reason for reopening his case, his motion to reconsider merely

asserted that the BIA had erred in its conception of what

"recalendaring" meant and asked the BIA to reverse its earlier

order. Put another way, the motion to reconsider was limited to

the issue already addressed above: did the BIA act appropriately

in recalendaring the case and giving effect to its earlier 2010

decision? As we already have explained, the petitioner cannot

prevail on this issue.

Struggling to salvage his due process argument, the

petitioner suggests that he was denied due process because he "was

not properly notified" of the government's motion to reinstate.

This argument draws its essence from a curious sequence of events.

In 2013 — while the case was administratively closed — the

petitioner's counsel attempted to apprise the BIA of a change in

his office address (he apparently had moved up the street). The

BIA rejected this submission because the case was closed. Thus,

when the government filed its motion to reinstate in 2018, it

- 9 - served a copy to counsel's old address. This is the disparity on

which the petitioner bases his lack-of-notice claim.

When put in perspective, this claim lacks force. Shortly

after the motion to reinstate was filed and before the BIA acted

on it, the petitioner's counsel again entered his appearance (with

his updated address). The BIA then mailed a copy of the motion to

reinstate to counsel at the updated address. Counsel abjured any

responsive filing, and the BIA granted the government's unopposed

motion and reinstated its earlier 2010 decision over a month later.

Although it is apparent that the petitioner's counsel

had actual notice of the motion to reinstate and ample time to

reply to it, he nonetheless asserts that he could not have filed

such a reply because he received notice only after the thirteen-

day window for responding to motions, see 8 C.F.R § 1003.2(g)(3),

had shut. The BIA gave short shrift to this assertion when the

petitioner included it in his motion to reconsider. So do we.

We need not tarry. For one thing, the petitioner never

asked the BIA for an extension of the thirteen-day limit, and we

have no reason to think that such an extension would have been

denied. See id. (memorializing BIA's discretionary authority to

extend filing dates). And for another thing, the petitioner has

not advanced any arguments that he might successfully have raised

in an opposition to the government's motion. There was no

- 10 - prejudice and, in the absence of prejudice, the petitioner's claim

founders. See Lattab v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004).

In sum, the petitioner received all of the process that

was due. See Jones v. Flowers, 547 U.S. 220, 226 (2006) ("[D]ue

process requires the government to provide 'notice reasonably

calculated, under all the circumstances, to apprise interested

parties of the pendency of the action and afford them an

opportunity to present their objections.'" (quoting Mullane v.

Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950))). Stripped

of his due process claim, the petitioner's case becomes unglued.

His briefing in this court fails to develop any claim of error

addressed to the underlying merits decision. In short, the

petitioner offers us no developed argumentation in support of a

contention that the IJ and the BIA erred in rejecting his claims

for asylum, withholding of removal, and/or CAT protection. Thus,

he has waived any argument regarding the merits of his underlying

claims. See Ahmed v. Holder, 765 F.3d 96, 101 n.2 (1st Cir. 2014);

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). And

although his briefs mention the possibility that he might "renew[]

. . . his asylum claim" or "reappl[y]" for other relief, he has

failed to develop these possibilities. See Zannino, 895 F.2d at

17 ("[I]ssues adverted to in a perfunctory manner, unaccompanied

by some effort at developed argumentation, are deemed waived.").

- 11 - The petitioner has a fallback position. He suggests

that his previous immigration proceedings are a nullity because

the IJ (and, thus, the BIA) lacked jurisdiction over his case.

This suggestion rests on the notion that the Notice to Appear (NTA)

that initiated his removal proceedings did not include the time

and place of his initial hearing before the immigration court. In

support, he says that the inclusion of such data was required both

by statute, see 8 U.S.C. § 1229(a)(1)(G)(i), and by the Supreme

Court's decision in Pereira v. Sessions, 138 S. Ct. 2105, 2109-10

(2018). This suggestion is foreclosed by the case law and, thus,

is a dead letter.

In the wake of Pereira, we have squarely rejected the

jurisdictional thesis that the petitioner advances. See Goncalves

Pontes v. Barr, 938 F.3d 1, 7 (1st Cir. 2019). Our decision in

Goncalves Pontes explicates that, in circumstances such as those

that are at issue here, immigration court jurisdiction is governed

by regulation, see 8 C.F.R. §§ 1003.13-1003.14(a), not by the

statute on which the petitioner relies. See Goncalves Pontes, 938

F.3d at 3-5. These regulations do not mandate that the time or

place of the initial hearing be included in an NTA that commences

a removal proceeding. See id. at 4 (citing 8 C.F.R. § 1003.18(b)).

In this case, the petitioner's NTA complied with the

regulations, and he appeared before the immigration court as

ordered. Under the rule in Goncalves Pontes, "[i]t follows that

- 12 - because the petitioner's NTA complied with the regulations

. . . , it was effective to confer jurisdiction upon the

immigration court." Id. at 7.

Goncalves Pontes controls our decision here. After all,

the law of the circuit doctrine requires us to adhere to prior

panel decisions, closely on point, with but few exceptions. See,

e.g., United States v. Gonzalez, ___ F.3d ___, ___ (1st Cir. 2020)

[No. 18-1597, slip op. at 20]; United States v. Barbosa, 896 F.3d

60, 74 (1st Cir.), cert. denied, 139 S. Ct. 579 (2018). The

exceptions to this doctrine are both "narrowly circumscribed" and

"hen's-teeth-rare." Barbosa, 896 F.3d at 74 (quoting San Juan

Cable LLC v. P.R. Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010)). No

such exception has any bearing in the circumstances at hand. It

follows inexorably that the petitioner's jurisdictional attack

fails.

We need go no further. For the reasons elucidated above,

the petitions for judicial review are

Denied.

- 13 -