33 F.4th 411
7th Cir.2022Background:
- Olawole Oluwajana, a Nigerian national and lawful permanent resident, was convicted in Illinois (2017) of criminal sexual assault and aggravated criminal sexual abuse; DHS charged him as removable for aggravated felonies.
- At his immigration hearing he was unrepresented; the IJ concluded the convictions were aggravated felonies, found no apparent eligibility for relief, and ordered removal.
- Oluwajana timely appealed to the Board of Immigration Appeals (BIA). He later retained counsel who requested the immigration file from EOIR; EOIR did not provide the file (including transcripts) until February 16, 2021.
- The BIA set an initial briefing deadline of February 3, 2021, later extended once to February 24. Counsel requested a further 21-day extension after receiving the file; the BIA denied that second extension but told counsel he could file the brief late with a motion.
- Counsel filed the brief and motion on March 8, 2021 (12 days late). The BIA rejected the brief in a one-sentence footnote mistakenly stating the brief was 33 days late and relied on the denied second extension; the BIA then dismissed the appeal without addressing the brief’s substantive arguments.
- The Seventh Circuit reviewed the undisputed record and held the BIA abused its discretion by refusing to accept the late brief (based on a factual error and a misapplication of its own rules), vacated the BIA order, and remanded with instructions to accept the brief; the Court did not decide the underlying IJ errors.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review aggravated-felony removal determination | Court has jurisdiction because whether prior convictions are aggravated felonies is a question of law reviewable under §1252(a)(2)(D) | BIA removal order final but aggravated-felony bar limits review; court still retains authority over legal questions | Court has jurisdiction to review the aggravated-felony issue (Eke controls) |
| Whether BIA abused discretion by rejecting late-filed brief | BIA should accept brief: EOIR delayed production of file until Feb 16, leaving counsel unable to meet deadline; brief was only 12 days late and promptly filed | BIA relied on denial of second extension and stated the brief was 33 days late to deny acceptance | BIA abused discretion: its reasons were legally and factually flawed; regulation permits considering late briefs; brief must be accepted |
| Whether remand should be general (BIA reconsider) or directive to accept the brief | Requested remand with instruction that BIA accept the brief and consider arguments | Government asked for a general remand to let BIA re-evaluate and explain its decision | Court refused a general remand; directed acceptance of the brief because record facts are undisputed and show abuse of discretion |
| Whether court should address substantive IJ errors now | Sought review of IJ’s legal errors (e.g., I-589 opportunity, waiver of counsel, aggravated-felony classification) | Government preferred BIA reconsideration first | Court declined to reach IJ claims and remanded so BIA can consider the briefed arguments in the first instance |
Key Cases Cited
- Eke v. Mukasey, 512 F.3d 372 (7th Cir. 2008) (aggravated-felony classification is a reviewable question of law)
- Dakaj v. Holder, 580 F.3d 479 (7th Cir. 2009) (denial of motion to file late brief reviewed for abuse of discretion; factual disputes may warrant remand)
- Chowdhury v. Ashcroft, 241 F.3d 848 (7th Cir. 2001) (agency discretion must be reasonable and consider relevant record facts)
- Siddiqui v. Holder, 670 F.3d 736 (7th Cir. 2012) (abuse of discretion occurs when agency’s factual findings contradict record evidence)
- W.G.A. v. Sessions, 900 F.3d 957 (7th Cir. 2018) (standards for granting a general remand when government requests one)
- Vidinski v. Lynch, 840 F.3d 912 (7th Cir. 2016) (recognizing need for deadlines given an overburdened immigration system)
- Gutierrez-Almazan v. Gonzales, 491 F.3d 341 (7th Cir. 2007) (factors relevant to excusing lateness, like pro se status and language skills)