Anouar DARIF, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
No. 12-1050.
United States Court of Appeals, Seventh Circuit.
Decided Jan. 2, 2014.
739 F.3d 329
While this appeal was pending before the Board, it decided in another case that the appropriate commencement date for survivors benefits awarded pursuant to a “subsequent claim awarded under ACA Section 1556 is the month after the denial of the survivor‘s prior claim became final.” See Richards, 721 F.3d 307 (affirming the Board‘s determination concerning the proper commencement date). It cannot be said that the Board went beyond the scope of its authority when, in order to be consistent with its own recent decision, it corrected the ALJ‘s determination concerning the appropriate commencement date for Mrs. Maynes‘s benefits.
IV.
For the foregoing reasons, the Petition is DENIED.
Lyle D. Jentzer, Lisa Morinelli, Oil, Department of Justice, Washington, DC, for Respondent.
Before POSNER, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge.
Anouar Darif, a native and citizen of Morocco, married Dianna Kirklin, a citizen of the United States, and by virtue of the marriage was admitted into the United States as a conditional permanent resident in 2001. But the marriage was a sham. Darif was convicted of marriage fraud and related charges, and the Department of Homeland Security (“DHS“) initiated proceedings to remove him. An immigration judge (“IJ“) found Darif removable and rejected all of his arguments for relief. The Board of Immigration Appeals (“BIA” or “Board“) initially ordered further pro-
In his petition for review, Darif presses only his argument for an extreme-hardship waiver pursuant to
I. Background
Darif and Kirklin married in December 2000 in Morocco. Later that month Kirklin submitted an I-130 Petition for Alien Relative, the petition that must be filed to enable an alien spouse to obtain lawful permanent residence status. The approval of Kirklin‘s petition allowed Darif to obtain the necessary visa to enter the United States, which he did in December 2001.
Because alien spouses married to United States citizens are admitted for permanent residence on a conditional basis, see
At some point evidence emerged that Darif had paid Kirklin $3,000 for the marriage, exposing it as a sham. In 2004 Darif was charged with marriage fraud in violation of
An alien spouse‘s visa may be revoked if it was obtained through marriage fraud, see
Darif and Kirklin filed a number of petitions in an effort to stave off Darif‘s re-
Only the request for an extreme-hardship waiver is at issue here, so we pause for a moment to sketch how this form of relief works. As we have noted, to remove the conditional status of permanent residence, an alien and his citizen spouse must jointly file a timely I-751 petition and submit to a personal interview. See
Darif‘s removal hearing was held on May 4, 2006, the day after we issued our opinion affirming Darif‘s convictions. Darif and Kirklin appeared without an attorney. Apparently no one was aware of our decision the day before because the IJ continued the hearing to wait for the results of Darif‘s criminal appeal. Darif maintains, however, that the judge made a number of off-the-record comments at this hearing suggesting that he was biased. Because the record reflects none of these comments, we take Darif‘s version of events from his affidavit and accept it for the sake of argument. Darif states that at the beginning of the hearing, the IJ told Kirklin that she could let go of Darif‘s arm because he was “not going anywhere ... yet.” During the hearing itself, the judge referred to Darif‘s convictions and said, “[Y]ou had better hope you win that appeal because if you don‘t, you‘re done, it‘s over, you are out of here; there are no more continuances, no more chances.” The judge later referred again to Darif‘s criminal case and told him that if he lost in the Seventh Circuit, he would lose in immigration court. Finally, when Darif asked the judge whether he should notify the court when his appeal was decided, the judge responded, “[O]h yeah, you can bring it in, we can get this over with real quick, the sooner the better.”
The IJ reconvened the hearing on June 1, 2006, having learned by then of our decision affirming Darif‘s convictions. This time Darif appeared with counsel, so the judge continued the hearing to June 30 for purposes of “pleading and any and all forms of ... relief.” The judge explained to Darif that on that date his counsel would tell the court “whether he wants to apply for a benefit or a defense.” Whether these statements meant that Darif needed to be prepared to present his evidence on all his claims for relief on June 30 would later become the subject of dispute.
At the June 30 hearing, the IJ determined that Darif was removable on all three grounds advanced by the government, essentially relying on Darif‘s convictions for marriage fraud. Darif‘s attorney
The IJ first addressed Darif‘s request for a continuance and denied it for lack of good cause. The judge noted that Darif had not informed the immigration authorities that his convictions had been affirmed and also that Darif‘s convictions precluded him from establishing a good-faith marriage, which would doom the I-130 and I-751 petitions in any event. For good measure the judge added that even if the convictions did not have preclusive effect, he would deny the continuance in an exercise of his discretion.
The judge then addressed the request for an extreme-hardship waiver, expressing doubt that Darif was statutorily eligible because his conviction for marriage fraud meant that he never should have been conditionally admitted in the first place. Darif‘s attorney took the position that the statute allowed for an extreme-hardship waiver despite the conviction. The judge was clearly skeptical and demanded legal authority in support of this position. Darif‘s attorney responded that he was simply relying on his reading of the statute. The judge rejected the argument and held that Darif was statutorily ineligible for a hardship waiver as a consequence of his conviction of marriage fraud. The judge added that he would deny the waiver as a matter of discretion.
The judge moved next to Darif‘s request for a fraud waiver under
The judge refused to continue the matter and insisted that Darif‘s attorney move forward with evidence on the remaining forms of relief that Darif was requesting. Darif‘s attorney declined, noting again that he did not have notice and was unprepared to move forward on the withholding and CAT claims. The judge construed Darif‘s failure to present evidence as an abandonment of the claims and denied them. On September 1, 2006, the IJ issued a written order explaining his findings.
Before the written order issued, however, Darif moved for recusal, or in the alternative, rehearing. The motion was based primarily on the judge‘s off-the-record comments at the May hearing. But Darif also maintained that recusal was necessary based on the judge‘s handling of proceedings involving Ouaffa Melliani, a coconspirator in Darif‘s marriage-fraud conspiracy. Finally, Darif contended that the IJ had denied him a full and fair opportunity to present evidence by insisting that he move forward at the June 30 hearing when he was unprepared to do so. The judge denied the motion in his September 1 written order denying relief from removal.
Darif appealed to the BIA and won a partial remand. The BIA found no basis for the IJ‘s recusal and held that Darif was not eligible for a fraud waiver. But the BIA remanded for reconsideration of the
The IJ scheduled a new hearing in July 2008 but continued it twice to allow the Citizenship and Immigration Services (“USCIS“) to adjudicate the I-751 petition that Darif had filed seeking an extreme-hardship waiver. In early December 2008, the USCIS denied the extreme-hardship waiver because Darif was statutorily ineligible based on his technically still valid (if fraudulent) marriage to Kirklin.
When Darif‘s hearing reconvened in March 2009, the IJ agreed with the USCIS‘s decision, reasoning that the statute permitted extreme-hardship waivers only when an applicant could not file a joint petition with his spouse and submit to a personal interview. The judge noted that because Darif was technically still married to Kirklin, he was capable of complying with the petition and interview requirements of
Darif‘s attorney took issue with that reading of the statute, and the proceedings again became contentious. The judge demanded to know whether any legal authority supported Darif‘s counsel‘s interpretation and warned him that a frivolous application was sanctionable. Darif‘s attorney replied that he did not have any legal authority but was again relying on his understanding of the text of the statute. The judge responded by reading the sanctions regulations to Darif‘s attorney.
The implied threat of sanctions prompted counsel to ask the judge to relieve him as Darif‘s attorney. A drawn-out exchange then ensued about whether the judge should allow Darif‘s attorney to withdraw. The judge ultimately refused, noting that the attorney knew Darif‘s case and that withdrawal would disadvantage his client. This got things back on track, and counsel proceeded to introduce evidence regarding Darif‘s requests for withholding of removal and CAT protection.
The IJ denied Darif‘s applications for withholding and protection under the CAT. In his written decision, the judge also explained his conclusion that Darif was statutorily ineligible for an extreme-hardship waiver because he was still married and therefore could file a joint I-751 petition. Finally, the judge urged the BIA to consider imposing sanctions against Darif‘s attorney for advancing a frivolous argument about the statutory availability of an extreme-hardship waiver.
In the meantime, Darif and Kirklin were divorced. Based on this new development and before appealing the IJ‘s decision to the BIA, Darif moved to reopen. He was careful not to concede the earlier point that his then-still-intact (if fraudulent) marriage made him statutorily ineligible for a hardship waiver under
With the motion to reopen pending, Darif again appealed to the BIA. The BIA treated the motion to reopen as a motion to remand and considered it with his appeal. In a decision issued in December 2011, the BIA dismissed the appeal and denied the motion, rejecting Darif‘s claims for withholding of removal and protection under the CAT because he had not established a likelihood that he would be persecuted upon his removal to Morocco. The BIA also rejected Darif‘s request for an extreme-hardship waiver, holding that his conviction for marriage fraud outweighed his claimed hardships. Alternatively, the BIA determined that Darif‘s proffer was insufficient to show that any of the claimed hardships qualified as extreme. Finally, the BIA declined to make a sanctions determination, noting that if the IJ was concerned about counsel‘s conduct, he should have filed a complaint with the disciplinary counsel for the Executive Office for Immigration Review.
Darif petitioned this court for review.
II. Discussion
Darif challenges only the denial of an extreme-hardship waiver under
More fundamentally, Congress has strictly limited our jurisdiction to review challenges like Darif‘s. We generally lack jurisdiction to review decisions committed to the immigration agency‘s discretion. See
It is well established that aliens generally have due-process rights in proceedings to determine their removability. See Reno v. Flores, 507 U.S. 292, 306 (1993);
Darif‘s due-process argument focuses exclusively on the denial of his request for an extreme-hardship waiver, a discretionary form of immigration relief. See
In his reply brief, Darif recasts the due-process claim as an argument about the legal sufficiency of his hearing before the IJ under the applicable statutes and regulations. We have sometimes permitted this kind of recharacterization. See, e.g., Delgado, 674 F.3d at 766; Khan, 517 F.3d at 518. Although a denial of discretionary relief may not be challenged on procedural due-process grounds, removal proceedings are subject to certain statutory and regulatory procedural requirements. See
Accordingly, “[w]e have repeatedly reminded aliens claiming constitutional violations that immigration proceedings that meet statutory and regulatory standards comport with due process, and, as such, aliens are better-served by arguing instead that immigration proceedings infringed the statutory and regulatory right to a reasonable opportunity to present evidence.” Khan, 517 F.3d at 518. Whether the IJ failed to follow these statutory or regulatory procedures in denying a petition for discretionary relief is a question of law that we review de novo. See Delgado, 674 F.3d at 766.
But recasting his due-process argument as a claim about the IJ‘s failure to follow the statutory and regulatory requirements doesn‘t get Darif very far, for two independent reasons. First, arguments raised for the first time in a reply brief are waived. See McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 889 n. 9 (7th Cir.2012); Judge v. Quinn, 612 F.3d 537, 557 (7th Cir.2010); Hojnacki v. Klein-Acosta, 285 F.3d 544, 549 (7th Cir.2002). Darif didn‘t pivot to an argument under the statutes and regulations until his reply brief. The argument is therefore waived.
Second, even if we were to conclude that the IJ‘s handling of the hardship-waiver question during the removal proceedings fell short of the requirements in the governing statutes and regulations, Darif must establish prejudice before we would vacate the agency‘s decision. See Khan, 517 F.3d at 518; Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir.2007). And there was no prejudice here. Whatever shortcomings there may have been in the proceedings before the IJ (and we do not conclude that there were shortcomings), the BIA itself fully and independently considered the evidence Darif submitted in support of his petition for an extreme-hardship waiver under
Notably, Darif does not argue that the IJ‘s mishandling of his case deprived the BIA of evidence it needed to evaluate the hardship question. In short, the BIA pro-
The petition for review is DENIED.
UNITED STATES of America, Plaintiff-Appellee, v. Roberto FLORES, Jr., Defendant-Appellant.
No. 13-2276.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 4, 2013.
Decided Jan. 3, 2014.