Franjul-Soto v. Barr ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1859
RAFAEL EMILIO FRANJUL-SOTO,
Petitioner,
v.
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Torruella and Barron, Circuit Judges.
Patrick N. Long and Patrick Long Law Firm, P.C., on brief for
petitioner.
Ilana J. Snyder, Trial Attorney, U.S. Department of Justice,
Office of Immigration Litigation, Joseph H. Hunt, Assistant
Attorney General, Civil Division, and Sabatino F. Leo, Senior
Litigation Counsel, on brief for respondent.
August 24, 2020
BARRON, Circuit Judge. Rafael Emilio Franjul-Soto
("Franjul-Soto"), a citizen of the Dominican Republic, petitions
for review of an order of the Board of Immigration Appeals ("BIA")
that denied his motion to reconsider his motion to reopen removal
proceedings. We deny the petition for review.
Franjul-Soto was born in the Dominican Republic in 1965
and entered the United States without inspection in 1988. On April
4, 2016, the United States Department of Homeland Security ("DHS")
served Franjul-Soto with a Notice to Appear, which charged him
with being removable from the United States under 8 U.S.C.
§ 1182(a)(6)(A)(i).
The Notice to Appear listed the address of the
Immigration Court, but indicated that the date and time of Franjul-
Soto's hearing were "[t]o be set."1 Three days later, DHS served
Franjul-Soto with a letter entitled "Notice of Hearing," which
specified that the hearing would take place on April 11, 2016, at
8:30 a.m.
Franjul-Soto attended all removal hearings. The
Immigration Judge ("IJ") sustained the charge of removability
1
The parties appear to question whether the Notice to Appear
listed the Immigration Court's address. It did. The document
stated: "YOU ARE ORDERED to appear before an immigration judge of
the United States Department of Justice at: JFK Federal Building
15 New Sudbury St, Room 320 Boston MA 02203."
under § 1182(a)(6)(A)(i) and denied Franjul-Soto's application for
cancellation of removal in a written order dated October 19, 2016.
Franjul-Soto then filed a Notice of Appeal to the BIA.
In March 2017, while his BIA appeal was pending, Franjul-
Soto filed a Violence Against Women Act ("VAWA") self-petition
with the United States Citizenship and Immigration Services
("USCIS"). Franjul-Soto claimed in it that he was the spouse of
an abusive United States citizen and that he qualified for a
discretionary adjustment of status to that of lawful permanent
resident under 8 U.S.C. § 1154(a)(1)(A)(iii)(I).
On February 16, 2018, the BIA dismissed Franjul-Soto's
appeal from the IJ's order of removal. Franjul-Soto then moved
the BIA to reopen removal proceedings based on his pending VAWA
self-petition. The BIA denied Franjul-Soto's motion to reopen on
October 19, 2018, and, on July 26, 2019, the BIA denied his motion
to reconsider. This petition for review followed.
Franjul-Soto first argues that the IJ lacked
jurisdiction to adjudicate his removability -- and thus that his
removal order must be vacated -- because the Notice to Appear was
deficient in omitting the date and time of his initial removal
hearing.2 The Notice to Appear was lacking in that respect. But,
2
The Notice to Appear did provide the Immigration Court's
address. Franjul-Soto appears to argue that, under 8 C.F.R.
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our precedent forecloses the argument that the IJ therefore lacked
jurisdiction to issue the order of removal. See United States v.
Mendoza, 963 F.3d 158, 161 (1st Cir. 2020) (rejecting "the
contention that the omission of the initial hearing date and time
in a notice to appear deprives the immigration court of
jurisdiction over a removal proceeding" (citing Goncalves Pontes
v. Barr, 938 F.3d 1 (1st Cir. 2019))); see also In re Montreal Me.
& Atl. Ry., Ltd., 953 F.3d 29, 42 (1st Cir. 2020) ("[N]ewly
constituted panels ordinarily are constrained by prior panel
decisions directly (or even closely) on point." (quoting United
States v. Holloway, 630 F.3d 252, 258 (1st Cir. 2011))).
Franjul-Soto next takes aim at the BIA's denial of his
motion to reconsider its denial of his motion to reopen, which he
premised on his then-pending VAWA self-petition. He contends that
the BIA erred by basing its denial on Franjul-Soto's failure to
make a prima facie case that the self-petition had merit, when, in
his view, the BIA had no legal basis for requiring him to make
such a prima facie showing. We review this claim of legal error
§ 1003.15(b)(6), a Notice to Appear must also explicitly state
that it "will be filed" at the listed address. This misconstrues
the regulation, which simply requires that a Notice to Appear
include "[t]he address of the Immigration Court where the Service
will file the . . . Notice to Appear." Id. Here, the address was
listed, and Franjul-Soto does not contend that the Notice to Appear
was subsequently filed at a different address -- nor would the
record support any such contention.
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de novo. See Soto-Hernandez v. Holder, 729 F.3d 1, 3 (1st Cir.
2013).
Franjul-Soto moved the BIA to reopen removal proceedings
under 8 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.2 after it
dismissed his direct appeal, citing the VAWA self-petition that he
had filed in the interim. These provisions allow an alien subject
to an otherwise final order of removal to seek administrative
relief based on "new facts." 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R.
§ 1003.2(c)(1).
Qualifying "new facts" can include, if additional
conditions are met, the alien's application for relief via a VAWA
self-petition, see 8 U.S.C. § 1229a(c)(7)(C)(iv), given that, if
the self-petition is ultimately deemed meritorious, the otherwise-
removable alien may be eligible for a visa or lawful permanent
resident status. Specifically, the VAWA self-petitioning process
allows an alien spouse of an abusive United States citizen to seek
classification as an immediate relative or a preference immigrant
by filing a Form I-360 with USCIS. See 8 C.F.R.
§ 204.1(a)(3). The self-petition must "demonstrate[] to the
Attorney General that . . . during the marriage . . . the alien
. . . has been battered or has been the subject of extreme cruelty
perpetrated by the alien's spouse." 8 U.S.C.
§ 1154(a)(1)(A)(iii)(I); see also 8 C.F.R. § 204.2(c)(1). If,
"[a]fter an investigation . . . the Attorney General . . .
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determines that the facts stated in the petition are true," he
"shall . . . approve the petition" and award classification as an
immediate relative or preference immigrant, and the alien may
thereafter be eligible for a visa. 8 U.S.C. § 1154(b); see id.§ 1153 (enumerating visa allocations by category). In addition,
if the self-petition is granted, the Attorney General also may,
"in his discretion," allow a VAWA self-petitioner to apply for
adjustment of status to that of lawful permanent resident. Id.
§ 1182(h).
Franjul-Soto accepts, for purposes of this contention,
that the BIA generally may require a prima facie showing of
eligibility for the relief that grounds a motion to reopen, whether
that threshold showing takes the form of a recounting of why the
grounds for removal were mistaken or, as here, why there is merit
to a new filing that, if granted, would permit an adjustment of
the movant's immigration status. But, Franjul-Soto then goes on
to contend that the BIA may not impose that same requirement to
make such a threshold showing when the motion to reopen is
premised, as his is, on a pending VAWA self-petition. Rather, he
argues, it is enough for the movant in that event to demonstrate
that the self-petition has been timely filed, as his was.
Franjul-Soto relies for this contention on 8 U.S.C.
§ 1229a(c)(7)(C)(iv), which he contends creates a "unique rule for
VAWA-based relief." But, this provision concerns only the
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timeliness of VAWA-petition-based motions to reopen, not the
requisite evidentiary support on which they must be premised. It
simply states that "[a]ny limitation . . . on the deadlines for
filing" a motion to reopen "shall not apply" if the motion is
predicated on VAWA eligibility and certain other conditions are
met. See id. § 1229a(c)(7)(C)(iv)(I)-(IV). Thus, this provision
is of no help to him.3
Insofar as Franjul-Soto also means to argue that the BIA
may not require a prima facie case to be shown in support of any
motion to reopen, he is wrong as well. Another provision, 8 U.S.C.
§ 1229a(c)(7)(B), which Franjul-Soto concedes is applicable here,
requires all motions to reopen to be "supported" by evidentiary
materials. And, while the government in its brief suggested that
the prima facie showing requirement is "neither statutory nor
regulatory," BIA regulations appear to ground the prima facie
showing requirement in § 1229a(c)(7)(B). See 8 C.F.R.
§ 1003.23(b)(3) (setting forth the statutory requirement that "[a]
motion to reopen . . . shall be supported by affidavits and other
3Franjul-Soto also contends that "the prima facie case
standard . . . recognized as the threshold for granting a motion
to reopen for an asylum case" is "[b]ased on the statutory language
at 8 U.S.C. § 1229a(c)(7)(C)(ii)." But this provision, similar to
§ 1229a(c)(7)(C)(iv), concerns only the "time limit on the filing
of a motion to reopen if the basis of the motion is to apply for"
asylum. Id. § 1229a(c)(7)(C)(ii) (emphasis added). Franjul-Soto
cites no authority suggesting that this language regarding
timeliness is appropriately read to encompass the prima facie case
standard, and we can find none.
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evidentiary material," and then suggesting that "the moving party
. . . [must] establish[] a prima facie case for relief"); see also
id. § 1003.2(a), (c)(1) (similar).
In any event, we have held that the BIA may require that
an alien's motion to reopen at least be supported by a prima facie
case to be granted, see Carter v. INS, 90 F.3d 14, 17 (1st Cir.
1996) (citing INS v. Abudu, 485 U.S. 94, 104-05 (1988)), and we
see no basis for making an exception when the motion to reopen is
based on a still-pending VAWA self-petition.
Franjul-Soto is, of course, at risk of being removed
while his VAWA self-petition remains pending. But, the self-
petition in and of itself says nothing about its merits. Thus,
the risk that he could be removed before USCIS rules on it provides
no reason to preclude the BIA from requiring that he make a prima
facie case that it has merit as a predicate for his motion to
reopen.
Franjul-Soto's final contention is that the BIA erred in
finding that he failed to make the requisite prima facie case. We
review for an abuse of discretion. See Fesseha v. Ashcroft, 333
F.3d 13, 20 (1st Cir. 2003); Carter, 90 F.3d at 17.
Under the prima facie standard, Franjul-Soto had to put
forward "objective evidence showing a 'reasonable likelihood'" or
"realistic chance" that his VAWA self-petition would be granted by
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USCIS. Smith v. Holder, 627 F.3d 427, 437 (1st Cir. 2010) (first
quoting Larngar v. Holder, 562 F.3d 71, 78 (1st Cir. 2009), then
quoting Guo v. Ashcroft, 386 F.3d 556, 564 (3d Cir. 2004)). To
grant the petition, USCIS would have to find, among other things,
that Franjul-Soto "has been battered or has been the subject of
extreme cruelty perpetrated by [his] spouse." 8 U.S.C.
§ 1154(a)(1)(A)(iii)(I)(bb). Regulations define battery or
extreme cruelty as "includ[ing] . . . being the victim of any act
or threatened act of violence, including any forceful detention,
which results or threatens to result in physical or mental injury."
8 C.F.R. § 204.2(c)(1)(vi).
Franjul-Soto contends that he made this prima facie
showing based on the affidavit that he submitted with his VAWA
self-petition, in which he recounts the mistreatment that he
alleges that he endured from his wife. The BIA disagreed, however.
It explained that he had "submitted only limited evidence that he
was battered or subjected to extreme cruelty by his spouse,
consisting of an affidavit in which he speaks generally of
physical, mental, and verbal abuse," and that this limited evidence
was not supported by any corroborating evidence. The BIA was thus
"unpersuaded that the respondent has provided sufficient evidence
to demonstrate that he would be prima facie eligible for approval
of a" VAWA self-petition.
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Given the limited details set forth in Franjul-Soto's
affidavit recounting his abuse -- which contained no dates and few
specifics -- the BIA did not abuse its discretion in finding that
the affidavit, alone, did not suffice to establish a prima facie
case given the lack of any corroborating evidence. Moreover, the
BIA did not, as Franjul-Soto contends, impose a blanket rule that
a movant's affidavit describing the abuse that they suffered can
never itself make out a prima facie case. The BIA merely held
that Franjul-Soto's affidavit -- given its deficiencies in terms
of detail -- did not suffice to make out a prima facia case
regarding the merits of his VAWA self-petition, at least in the
absence of any corroborating evidence for the claims of abuse that
it set forth.
Finally, there is no merit to Franjul-Soto's further
contention that the BIA abused its discretion by improperly deeming
his affidavit not credible. The problem here for Franjul-Soto is
that the BIA did not make an adverse credibility finding in ruling
that Franjul-Soto's lone and uncorroborated affidavit failed to
establish a prima facie case in support of his VAWA-petition-based
motion to reopen. Rather, the BIA simply based its ruling on the
general nature of the affidavit and the lack of specifics in it.
Thus, here, too, we discern no basis for finding an abuse of
discretion.
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The petition for review is denied.
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