Mones-Chantes v. Sessions
683 F. App'x 16
| 2d Cir. | 2017Background
- Francisco Mones‑Chantes was charged with removability after ICE issued a Notice to Appear on July 6, 2012.
- To qualify for cancellation of removal he had to show continuous physical presence for 10 years prior to that Notice; at a November 2012 hearing he stated under oath he arrived in August 2002 (short of 10 years).
- The Immigration Judge (IJ) set a filing deadline of April 11, 2014 for the cancellation application, warned that failure to file would be deemed abandonment, and scheduled a merits hearing for June 10, 2014.
- Counsel did not file the cancellation application by the deadline; at the June 10, 2014 hearing the IJ deemed the application abandoned, denied a continuance, and ordered removal to Mexico.
- The Board of Immigration Appeals (BIA) affirmed, finding no good cause for delay and agreeing a continuance was not warranted; Mones‑Chantes petitioned for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the cancellation application was properly deemed abandoned | Mones‑Chantes (through counsel) implied the IJ erred because the government relied on unauthenticated border records; counsel also contended an application had been filed | Government: no application was filed; petitioner had notice of deadline and warnings; failure to file = abandonment under 8 C.F.R. §1003.47(c) | The court held abandonment was proper: no application in the record, counsel admitted non‑filing, and belief that the application would fail is not good cause |
| Whether the IJ abused discretion by denying a continuance | Mones‑Chantes sought a continuance to present evidence contesting physical presence | Government: once application deemed abandoned, no basis for continuance | The court held denial of continuance was not an abuse: no filed application meant no point to continuance |
| Whether denial of continuance violated due process | Mones‑Chantes argued he was denied a fair opportunity to present claims | Government: petitioner failed to avail himself of process by not filing the application | The court held no due process violation: petitioner had no properly filed application and thus was not deprived of a forum to present evidence |
| Challenge that IJ improperly relied on government's motion to pretermit using unauthenticated records | Counsel asserted the government relied on unauthenticated border patrol records and that the IJ wrongly granted pretermission | Government maintained the IJ deemed the application abandoned (not pretermitted) and relied on procedural defaults, not solely on those records | The court construed the challenge as to abandonment/continuance rather than pretermission and rejected it |
Key Cases Cited
- Sanusi v. Gonzales, 445 F.3d 193 (2d Cir. 2006) (reviewing both IJ and BIA opinions where BIA affirms and supplements IJ)
- Dedji v. Mukasey, 525 F.3d 187 (2d Cir. 2008) (abuse‑of‑discretion review of IJ's finding of no good cause for delay)
- Hanarasingha v. Lynch, [citation="638 F. App'x 77"] (2d Cir. 2016) (summary reference supporting standard of review for abandonment/continuance)
- Burger v. Gonzales, 498 F.3d 131 (2d Cir. 2007) (due process requires a full and fair opportunity to present claims)
- Barron v. Holder, [citation="309 F. App'x 466"] (2d Cir. 2009) (an alien must avail himself of available process; failure to file application is not a denial of process)