Soto v. Holder, Jr. , 736 F.3d 1009 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 13-1520
LLANERY SOTO,
Petitioner,
v.
ERIC HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Stahl and Howard, Circuit Judges.
John H. Ruginski, Jr., on brief for petitioner.
Andrew Olivera, Trial Attorney, Office of Immigration
Litigation, Civil Division, Department of Justice, Stuart F.
Delery, Acting Assistant Attorney General, and Richard M. Evans,
Assistant Director, on brief for respondent.
December 3, 2013
STAHL, Circuit Judge. Petitioner Llanery Soto seeks
review an order of the Board of Immigration Appeals ("BIA")
affirming the Immigration Court's decision to dismiss her
application for cancellation of removal. We conclude that the
BIA's correct application of the "stop-time" rule precludes the
relief that Soto seeks. Therefore, we deny Soto's petition for
review.
I. Background
Soto is a native and citizen of the Dominican Republic
who entered the United States on September 16, 1997, without
admission or parole. On November 14, 2005, the United States
Immigration and Naturalization Service ("INS") served Soto with a
Notice to Appear ("NTA") charging her as removable pursuant to the
Immigration and Nationality Act ("INA"), subsections
212(a)(6)(A)(i) and 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(A)(i),
(C)(i). The NTA was not filed with the Immigration Court until
February 14, 2008. On February 27, 2008, the Immigration Court
mailed a Notice of Hearing to Soto's address of record, notifying
her of removal proceedings on March 27, 2008. Soto did not appear
at the hearing, and the Immigration Judge ("IJ") ordered Soto
removed in absentia.
On November 10, 2009, Soto filed a motion to reopen in
order to submit an application for cancellation of removal. In an
accompanying affidavit, Soto acknowledged receiving the NTA in
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November 2005, although she later denied it in her pleading dated
December 17, 2009. In the same pleading, Soto conceded that she
was removable under § 212(a)(6)(A)(i). The Immigration Court
granted the motion to reopen based on its finding that Soto had not
received the Notice of Hearing. It set the deadline for Soto's
application and supporting documents as November 24, 2010. On
November 17, 2010, Soto filed a motion for continuance seeking
additional time to file the application.
The Immigration Court issued a decision on December 17,
2010, denying the motion for continuance and holding that Soto had
abandoned the application for cancellation. The court found that
Soto had not offered any satisfactory reason for requesting
additional time beyond the November 24 deadline to file her
application for cancellation. Additionally, the court found that
Soto was statutorily ineligible for cancellation of removal in any
case, because she could not show ten years of continuous presence
in the United States, as required by section 240A(b) of the INA,
8 U.S.C. § 1229b(b). Regarding the latter conclusion, the court
found that Soto had entered the United States on September 16,
1997, and that service of the NTA on November 14, 2005, "cut[] off
the lawful residence for physical presence . . . for purposes of
cancellation of removal."
The BIA affirmed the Immigration Court's ruling on
February 23, 2012. This court vacated that decision and remanded
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to the BIA in response to an unopposed motion from the government
seeking clarification of the date on which Soto received service of
the NTA. On remand, the BIA confirmed that Soto was served with
the NTA on November 14, 2005, and again upheld the Immigration
Court's decision. The present appeal followed.
II. Analysis
Here, Soto argues that the Immigration Court erred as a
matter of law in finding that she was statutorily ineligible for
cancellation of removal and abused its discretion in denying her
motion for continuance. She also raises a cursory due process
claim. None of Soto's arguments have merit.
"We review the BIA's legal conclusions de novo, with
appropriate deference to the agency's interpretation of the
underlying statute in accordance with administrative law
principles." Walker v. Holder, 589 F.3d 12, 18 (1st Cir. 2009).
"This includes a de novo review of due process claims." Toribio-
Chavez v. Holder, 611 F.3d 57, 62 (1st Cir. 2010). "We review the
agency's factual findings, including credibility determinations,
under the substantial evidence standard, and may overturn those
findings only if 'any reasonable adjudicator would be compelled to
conclude to the contrary.'" Lin v. Gonzales, 503 F.3d 4, 7 (1st
Cir. 2007) (quoting 8 U.S.C. § 1252(b)(4)(B)). Our review is
limited to "the administrative record on which the order of removal
is based." 8 U.S.C. § 1252(b)(4)(A). In cases such as this one,
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"where the BIA has rendered a decision with its own analysis of the
question at issue, our review focuses on the BIA's decision, not
the IJ's." Vásquez v. Holder, 635 F.3d 563, 565 (1st Cir. 2011).
A. Soto's Application for Cancellation of Removal
The Attorney General has the discretion to cancel the
removal of nonpermanent resident aliens who meet certain specified
criteria, including physical presence in the United States "for a
continuous period of not less than 10 years immediately preceding
the date of such application" for cancellation of removal.
8 U.S.C. § 1229b(b)(1)(A). The statute provides that "[f]or
purposes of this section, any period of continuous residence or
continuous physical presence in the United States shall be deemed
to end . . . when the alien is served a notice to appear under
section 1229(a) of this title . . . ." Id. § 1229b(d)(1). This
provision is known as the "stop-time" rule. Cheung v. Holder, 678
F.3d 66, 69 (1st Cir. 2012).
The BIA found as a factual matter that Soto entered the
United States on September 16, 1997, and received service of the
NTA on November 14, 2005, prior to the ten-year mark. Although
Soto stated otherwise in her pleadings, in a sworn affidavit she
testified that she received service of the NTA at that time. In
light of this evidence, we conclude that the BIA's factual
determination was not erroneous. Therefore, under the plain terms
of the statute, Soto's period of continuous presence in the United
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States for the purposes of her application is less than ten years,
and she is not eligible for cancellation of removal under the stop-
time rule.
Soto raises two arguments against this conclusion. First,
she claims that her ten years of continuous presence accrued during
the two-year period between the service of the NTA and its filing
with the Immigration Court. Second (perhaps alternatively), she
argues that "the ten (10) year period provided, by the plain
statutory language, encompasses that period from the date of entry
through the date of application, not the date of the service of the
NTA." (emphasis in original). Neither argument has any legal
basis. The statute unambiguously cuts off the term of continuous
presence for the purposes of § 1229b at the date of the service of
the NTA, regardless of when the removal proceedings actually begin.
§ 1229b(d)(1). As the BIA correctly pointed out, "although the
Notice to Appear was not filed with the Immigration Court until 2
years after it was served, the service of the Notice to Appear is
a separate issue from that of when the proceedings are commenced."
Cf. Cheung, 678 F.3d at 69–71 (applying the stop-time rule where
the petitioner was served before the ten-year mark with an NTA
based on a charge that was later withdrawn and replaced by a
separate, unrelated charge after the ten-year mark). Accordingly,
we affirm the BIA's decision that Soto is statutorily ineligible
for cancellation of removal.
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The BIA did not address separately whether the
Immigration Court abused its discretion by denying Soto's motion
for an extension of time to file her application. Nevertheless, we
conclude that the denial was not an abuse of discretion. Having
correctly determined that Soto was statutorily ineligible for
cancellation of removal, the Immigration Court had no reason to
allow Soto more time to file a futile application, particularly
given Soto's failure to show cause. Thus, Soto's appeal fails on
that ground as well.
B. Due Process Claim
In her appellate brief, Soto mentions due process without
clearly articulating an argument on that issue. To the extent that
we can discern a due process claim, Soto appears to be arguing that
the Immigration Court denied her the opportunity to be heard and
present evidence by denying her motion for continuance and
summarily finding her application for cancellation to be abandoned.
This is not a colorable due process claim.
"[T]his court has recognized that there is a due process
violation if the proceeding is so fundamentally unfair that the
alien was prevented from reasonably presenting [her] case."
Bernal-Vallejo v. INS, 195 F.3d 56, 63 (1st Cir. 1999). But we
have also held that a denial of a continuance cannot be a due
process violation where there was no abuse of discretion. See
Alsamhouri v. Gonzales, 484 F.3d 117, 124 (1st Cir. 2007)("[T]he IJ
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did not abuse his discretion in denying the continuance; hence,
there is no possible claim that the denial rendered the proceeding
fundamentally unfair.") (internal quotation marks omitted). For
the reasons explained above, the Immigration Court did not abuse
its discretion by denying the motion for continuance. Therefore,
Soto's due process claim necessarily fails.
III. Conclusion
For the foregoing reasons, we deny Soto's petition for
review.
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