KATHERIN ESCARLETH MEJIA-VELASQUEZ, a/k/a Katherin Esarleth Mejia-Velasquez, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
No. 20-1192, No. 20-1628
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Argued: December 8, 2021 Decided: February 15, 2022
Before NIEMEYER, MOTZ, and RICHARDSON, Circuit Judges.
PUBLISHED
Decisions affirmed and petitions for review denied by published opinion. Judge Niemeyer wrote the opinion, in which Judge Richardson joined. Judge Motz wrote a dissenting opinion.
ARGUED: Evelyn Rose Griggs Smallwood, HATCH ROCKERS IMMIGRATION, Durham, North Carolina, for Petitioner. Rachel Louise Browning, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Jeffrey Bossert Clark, Acting Assistant Attorney General, Jessica E. Burns, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
NIEMEYER, Circuit Judge:
Katherin Mejia-Velasquez, a
While we agree with Mejia-Velasquez that Matter of D-M-C-P- is not entitled to Kisor deference, we conclude that the record demonstrates that she received notice that substantially complied with the requirements of
I
After Mejia-Velasquez entered the United States without inspection, she filed an I-589 application for asylum, withholding of removal, and protection under CAT, claiming that she and other members of her family had been the victims of physical harm due to their membership in a particular Honduran political party, as well as their affiliation with a family member who was elected mayor of the family‘s hometown as a member of that same party.
On February 7, 2017, she appeared with counsel before an IJ in Charlotte, North Carolina, at a master calendar hearing. As typical of such hearings, the IJ confirmed preliminary matters contained in Mejia-Velasquez‘s application with Mejia-Velasquez and her counsel, conceding removability, designating Honduras as her destination in the event of removal, confirming Spanish as her “best language,” and clarifying her address. The IJ also scheduled an “individual hearing” for March 12, 2018, and warned counsel that documents not submitted before 15 days of that date would be “deemed waived or abandoned.” The IJ then said:
And, finally, [the Department of Homeland Security counsel] is serving your client with biometrics instructions. Make sure she has her fingerprints taken by the time of her individual hearing. If she doesn‘t have her fingerprints done and completed by that day, I‘m going to — deny her application for lack of completeness. Do you understand that?
Mejia-Velasquez‘s counsel responded, “Yes, Your Honor.” While the transcript of the hearing does not reflect it, the IJ also provided Mejia-Velasquez with a written notice entitled “Fingerprint Warning” that he regularly distributed to applicants and which Mejia-Velasquez does not dispute having received. The Fingerprint Warning provided:
The Department of Homeland Security [“DHS“] has provided Respondent with instructions to provide his or her fingerprints and biographical information to the DHS as part of their Form I-589 (Application for Asylum and for Withholding of Removal) filed with the Court. Respondent shall submit his or
her fingerprints and other biographical information to the DHS for all required identity, law enforcement, or security investigations in accordance with these instructions. 8 C.F.R. § 1003.47(b) . Failure by Respondent to follow these instructions and submit the required information before their scheduled individual hearing will constitute abandonment of Respondent‘s Form I-589 application.8 C.F.R § 1003.47(c) ; Matter of D-M-C-P-, 26 I&N Dec. 644, 649 (BIA 2015). If Respondent‘s Form I-589 application is abandoned, the DHS may request that the Court deny Respondent‘s claims for asylum, withholding of removal, and protection under the United Nations Convention Against Torture.8 C.F.R § 1003.47(d) .You must have your fingerprints taken within 45 DAYS of today‘s date in order to provide DHS with sufficient time to process your prints.
Pursuant to the schedule established, Mejia-Velasquez (now represented by new counsel) appeared before the same IJ on March 12, 2018, for her individual hearing. When the IJ was informed that Mejia-Velasquez had not provided the DHS with her biometrics, the IJ sought confirmation of that fact from her counsel who, after consulting with Mejia-Velasquez, confirmed that the information was “accurate.” The IJ then said:
On February 7th, 2017, I gave her a fingerprint warning and the Government served biometric instructions on her. Advised her that she was going to be required to take her fingerprint[s] — as part of her application process and, if she didn‘t, that, that would lead to an incomplete asylum application. That‘s a part of the asylum regulations.
When the government moved to pretermit Mejia-Velasquez‘s application for immigration relief because of her failure to provide biometrics, the IJ stated that he was going to grant the motion and would send out an order doing so. At the conclusion of the hearing, the IJ asked Mejia-Velasquez‘s counsel, “Is there anything else before we adjourn?” Counsel replied, “No, Your Honor.”
On March 12, 2018, the IJ issued his order granting the government‘s motion to pretermit Mejia-Velasquez‘s application. He found that, during the February 7, 2017 master calendar hearing, Mejia-Velasquez had “received notice and instructions on how to submit her fingerprints and biometrics” and that she had also been advised, “through counsel, of the consequences for failure to comply” with those instructions by the relevant deadline. He found that Mejia-Velasquez “did not timely submit the required biometrics” and that she had not presented sufficient evidence that her failure to do so “was the result of good cause.” As a consequence, he found that “no good cause exists for a continuance” of Mejia-Velasquez‘s proceedings. Accordingly, the IJ held that Mejia-Velasquez had, by virtue of
On appeal to the BIA, Mejia-Velasquez challenged the IJ‘s order on the grounds that the IJ had erred in failing to “consider the reasons [for her] failure to submit her fingerprints” and to “give [her] an opportunity . . . to explain herself.” She claimed that she did, in fact, have a “good and legitimate cause” for not complying with the biometrics requirements — namely, that she was not properly informed of those requirements because the IJ did not direct the courtroom translator to translate into Spanish the relevant oral and written instructions. Nor did her previous counsel “tell her about the fingerprints and the consequences of not submitting them.”
Following the BIA‘s decision, Mejia-Velasquez simultaneously filed a motion for reconsideration with the BIA and a petition for review in this court. In her motion for reconsideration, she identified three categories of error in the BIA‘s decision, arguing (1) that the BIA had erred in upholding the IJ‘s determination that she had abandoned her application; (2) that the BIA had not responded to her argument on appeal that the IJ had failed to provide her with an opportunity to show “good cause” for not complying with the biometrics requirements; and (3) that the BIA‘s analysis of the IJ‘s decision-making had improperly required her to show prejudice and was marred by impermissible and “clearly erroneous” factfinding.
The BIA denied her motion for reconsideration on May 27, 2020, concluding that she “fail[ed] to identify any errors of fact or law in [its] prior decision or an argument or aspect of the case that was overlooked.” Mejia-Velasquez then filed another petition in this court to review the BIA‘s denial of her motion for reconsideration.
On Mejia-Velasquez‘s motion, we entered an order dated June 8, 2020, consolidating her two petitions for review.
II
For her principal argument, Mejia-Velasquez contends that she was improperly advised of her obligation to provide biometrics, as required by
Under the practice authorized by Matter of D-M-C-P-, the DHS provides applicants at a hearing only with instructions for providing biometrics and not a written notice of the biometrics requirement. Mejia-Velasquez
At bottom, Mejia-Velasquez urges that we vacate the BIA‘s decision and remand her case for consideration of her application on the merits.
While the government recognizes that the BIA relied on Matter of D-M-C-P-, it contends that Matter of D-M-C-P- did not purport to construe the regulation but rather “simply considered whether the [IJ] in that case had fulfilled his obligation of setting a time limit before declaring the petitioner‘s application abandoned.” And at oral argument, the government contended additionally that, in any event, the “Fingerprint Warning” that the IJ provided to Mejia-Velasquez at the February 7, 2017 master calendar hearing constituted “a biometrics notice” for purposes of
We begin with the text of
At any hearing at which a respondent expresses an intention to file or files an application for relief for which [biometrics are required] . . . DHS shall notify the respondent of the need to provide biometrics and other biographical information and shall provide a biometrics notice and instructions to the respondent for such procedures. The immigration judge shall specify for the record when the respondent receives the biometrics notice and instructions and the consequences for failing to comply with the requirements of this section.
(1) ensure that the DHS has advised the applicant of the need to provide biometrics and other biographical information and has furnished the appropriate instructions; (2) inform the applicant of the deadline for complying with the requirements of which he has been notified; and (3) inform the applicant of the consequences of noncompliance, including
the possibility that the application will be deemed abandoned and dismissed, unless the failure to comply resulted from good cause.
Matter of D-M-C-P-, 26 I. & N. Dec. at 648-49 (emphasis added). Thus, with respect to the regulation‘s three requirements, the BIA‘s interpretation in Matter of D-M-C-P- requires the DHS to satisfy only the first and the third, omitting the requirement that it provide “a biometrics notice.”
In this case, the BIA concluded that, because the DHS had provided Mejia-Velasquez with all of the information required by Matter of D-M-C-P-, the DHS had satisfied the requirements of
We agree with Mejia-Velasquez on two points that she makes. First, we agree that the regulation is unambiguous as to the three requirements specified — oral notification, a biometrics notice, and instructions. We also agree that Matter of D-M-C-P-, when construing the regulation, omitted the requirement for providing applicants with “a biometrics notice.”
In suggesting that Matter of D-M-C-P- adequately summarized the regulation, the government diminishes the distinction between orally notifying an applicant of requirements and providing the applicant with a written notice. And in doing so, it misreads the regulation by suggesting that both requirements are essentially the same. First, as a matter of a straightforward reading, we conclude that “a biometrics notice” means a tangible, written notice. We deduce that from the fact that the regulation includes both the requirement that DHS “notify” the applicant and the requirement that it provide the applicant with “a biometrics notice.” Moreover, “biometrics notice” is preceded by an article, suggesting a tangible, written notice. See, e.g., Merriam-Webster‘s Collegiate Dictionary 848 (11th ed. 2020) (defining “notice” when coupled with the indefinite or definite article to mean “a written or printed announcement” ). By collapsing the DHS‘s obligation to “notify” and to “provide a biometrics notice,” the government‘s interpretation effectively eliminates one of the three requirements imposed by
Accordingly, the BIA‘s interpretation of
The government‘s alternative argument that Matter of D-M-C-P- did not purport to construe
But the government‘s final argument fares better. The government contended at oral argument that regardless of whether Matter of D-M-C-P- properly interprets
It is true that the Fingerprint Warning was provided to Mejia-Velasquez by the IJ, whereas the regulation requires that “a biometrics notice” be provided by the DHS. But we conclude that the IJ‘s provision of this notice constituted substantial compliance with the regulation. All doubt would surely be eliminated if the DHS were to formulate its own biometrics notice and routinely provide it to each applicant at the applicant‘s first hearing. And we see no reason, moreover, why the DHS could not include the instructions for providing biometrics in that notice, thereby giving the applicant only one document. Nonetheless, it is apparent that the IJ‘s provision of the Fingerprint Warning in this case satisfied the essential purpose of the regulation.
The dissent contends that the provision of the Fingerprint Warning did not constitute substantial compliance with the regulation, maintaining that “‘a biometrics notice’ must mean a document that provides a date and time to have one‘s biometrics collected.” Infra at [31]. Not only does the dissent‘s conclusion lack any support from the text of
III
Mejia-Velasquez contends further, however, that the biometrics notice required by
Upon the applicant‘s filing of an application for relief with the immigration court . . . DHS will provide the alien with a standard biometrics appointment notice prepared by an appropriate DHS office. . . . The DHS fingerprint notice will be hand-delivered to the alien by DHS and . . . must contain at least the alien registration number, receipt number (if any), name, and the form number pertaining to the relief being sought for each person listed. . . . The immigration judge shall specify for the record when the respondent receives the notice and the consequences for failing to comply with biometrics processing.
Id. at 4746 (emphasis added). Mejia-Velasquez contends that this preamble‘s reference to a “standard biometrics appointment notice” clarifies the nature of the “biometrics notice” called for in
While this argument might support her criticism of the DHS‘s current practice, it does not substantially advance her position that
Thus, notwithstanding the language in the regulatory preamble that Mejia-Velasquez cites, we adhere to the language of the regulation itself and conclude that the Fingerprint Warning that she received at the February 7, 2017 hearing substantially complied with the regulation‘s requirement of “a biometrics notice.”
IV
Finally with respect to her first petition for review, Mejia-Velasquez contends that even if she were provided with a biometrics notice satisfying
A
First, she contends that the IJ and the BIA erred, as a matter of law, in relying on
While both the IJ and the BIA did cite to
agree[d] with the Immigration Judge that the respondent‘s failure to comply with the biometrics instructions she received on February 7, 2017, warrants a determination that the respondent abandoned her application for relief and protection from removal.
Notably, this analysis features no discussion about an “application or document” or a “waiver” of her application. Rather, the BIA relied on Mejia-Velasquez‘s failure to provide biometrics as required and the consequential abandonment of her application for her failure to do so, as explicitly addressed in
B
Second, Mejia-Velasquez argues that the IJ erred in failing to provide her with the opportunity at her March 2018 individual hearing to show “good cause” for her failure to provide biometrics information to the DHS. This argument fares no better.
While
Notwithstanding the absence of any supporting language in the regulation, the dissent
C
Finally, Mejia-Velasquez argues that at the February 7, 2017 master calendar hearing, her due process rights were violated because neither the portion of the hearing during which “she was given the biometrics instructions and warnings” nor the Fingerprint Warning itself was translated into Spanish.
To be sure, we have held that “a fair opportunity to be heard” may be lacking when the government fails to translate for a non-English speaking alien information regarding the charges against her and her legal rights. United States v. Lopez-Collazo, 824 F.3d 453, 461-62 (4th Cir. 2016); see also Gandarillas-Zambrana v. B.I.A., 44 F.3d 1251, 1257 (4th Cir. 1995) ( “[A]n alien who does not understand English has the right to the services of a translator at his deportation hearing in order to effectuate his right to present evidence and cross-examine witnesses” ). But “due process is flexible and calls for such procedural protections as the particular situation demands.” D.B. v. Cardall, 826 F.3d 721, 743 (4th Cir. 2016) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972) ). And, in applying this flexible approach in immigration proceedings involving non-English speaking applicants, courts have considered such factors as whether the applicant is represented by counsel and whether that counsel objected to any lack of translation. See Drobny v. I.N.S., 947 F.2d 241, 244 (7th Cir. 1991) (rejecting the argument that an alien‘s due process rights were violated by the lack of a translator at his deportation hearing due in part to the fact that the alien‘s attorney “did not object to the absence of an interpreter” ); Mei Zi Cui v. Mukasey, 272 F. App‘x 61, 62-63 (2d Cir. 2008) (summary order) (finding no due process violation when, for a Chinese citizen whose native language was Korean, the deportation hearing was translated into Mandarin Chinese because, inter alia, the alien‘s attorney “failed to object when the IJ announced at the beginning of the merits hearing that the official Court interpreter would be speaking Mandarin” ).
These principles support the conclusion that the lack of translation at Mejia-Velasquez‘s master calendar hearing did not constitute a due process violation. The hearing was devoted to the IJ‘s confirmation of procedural and administrative details about Mejia-Velasquez‘s application and the establishment of a schedule and procedural rules
for future proceedings and not to substantive matters of, for example, evidence presentation or witness cross-examination. And Mejia-Velasquez was represented by counsel throughout. In this context, the IJ advised Mejia-Velasquez’s counsel of the biometrics requirements and expressly instructed him to “[m]ake sure she has her fingerprints taken,” to which counsel said, “Yes, Your Honor.” The combination of the master calendar hearing’s procedural and administrative
In sum, we conclude that the BIA did not err in affirming the IJ’s conclusion that Mejia-Velasquez had abandoned her application.
V
In her second petition for review, Mejia-Velasquez challenges the BIA’s May 27, 2020 order denying her motion to reconsider its January 22, 2020 decision dismissing her application. Such motions must “specify the errors of law or fact in the previous order and shall be supported by pertinent authority.”
With this governing standard, we find no abuse of discretion here. The BIA permissibly found that Mejia-Velasquez failed to identify any legal error, factual error, or overlooked arguments in its January 22, 2020 decision.
* * *
For the foregoing reasons, the decisions of the BIA are affirmed, and Mejia-Velasquez’s petitions for review are
DENIED.
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
Katherin Escarleth Mejia-Velasquez, a twenty-six-year-old native and citizen of Honduras, asserts that, when she lived in her native country, a gang member connected to a political opposition party physically and sexually abused her and her mother, stalked and raped her sister, and murdered her uncle. Rather than remain in Honduras and risk suffering more violence, Mejia-Velasquez entered the United States without authorization. The following month, the Department of Homeland Security (“DHS”) initiated removal proceedings against her. Mejia-Velasquez subsequently applied for asylum, withholding of removal, and protection under the Convention Against Torture. But before the immigration judge (“IJ”) even addressed whether she had made viable claims for relief, the IJ rejected all her claims on the basis of a single procedural point: she had failed to have her fingerprints taken.
Mejia-Velasquez does not deny that she failed to have her fingerprints taken. She argues, however, that DHS failed to fulfill its own obligation to first provide her with a biometrics notice setting a date and time to have her fingerprints taken. I agree that DHS failed to fulfill that obligation and would thus grant the petition for review.
I.
A.
Under
In an apparent attempt to comply in part with the above notice obligations, one of DHS’s agencies — the United States Citizenship and Immigration Services (“USCIS”) — has published a document titled “Instructions for Submitting Certain Applications in Immigration Court and for Providing Biometric and Biographic Information to U.S. Citizenship and Immigration Services.” According to those instructions, to begin the process of providing biometrics, applicants must mail three documents to USCIS’s Nebraska Service Center: (1) a copy of the first three pages of their completed Form I-589 (their application for relief); (2) a copy of Form G-28 (a notice of appearance for the applicant’s attorney or representative); and (3) a copy of the instructions themselves.
Once the applicant has done so, the instructions explain that the applicant will receive an Application Support Center (“ASC”) notice that “will indicate the individual’s unique receipt number and will provide instructions . . . to appear for an appointment at a nearby ASC for collection of biometrics.” The instructions further explain that an applicant “must wait for and take” her ASC notice to her biometrics appointment. (emphasis added). If an applicant does not receive an ASC notice within three weeks, the instructions direct the applicant to call an 800 number.
B.
Mejia-Velasquez followed USCIS’s instructions: her counsel mailed the three required documents to the Nebraska Service Center. But when Mejia-Velasquez appeared before the IJ for her master calendar hearing two weeks later, she had not received an ASC notice. Neither Mejia-Velasquez nor the Government mentioned the missing ASC notice to the IJ. On his own accord, the IJ told Mejia-Velasquez’s counsel in English that the DHS attorney was “serving [Mejia-Velasquez] with biometrics instructions” and told Mejia-Velasquez’s counsel to “[m]ake sure she has her fingerprints taken by the time of her individual hearing.” But Mejia-Velasquez does not speak English, and she asserts that her counsel failed to tell her about the IJ’s verbal instructions and the interpreter did not translate them into Spanish.
At the same hearing, the IJ also gave Mejia-Velasquez a generic form document in English titled “Fingerprint Warning.” The document states that “Respondent shall submit his or her fingerprints and other biographical information to the DHS. . . . Failure by Respondent to follow these instructions . . . before their scheduled individual hearing will constitute abandonment of Respondent’s [applications].” That document did not offer Mejia-Velasquez a date and time for an appointment to have her fingerprints taken.
By the time of her individual hearing the following year, Mejia-Velasquez still had not received an ASC notice or had her fingerprints taken.1 She appeared at that hearing with new counsel. At the hearing,
Mejia-Velasquez appealed to the Board of Immigration Appeals (“BIA”), which affirmed the IJ’s decision and dismissed her appeal. Soon after, USCIS finally issued Mejia-Velasquez an ASC notice. The record does not indicate why USCIS issued the notice at this late date, approximately two years after the IJ had already pretermitted her applications for relief.
Mejia-Velasquez filed both a motion for reconsideration before the BIA and a petition for review of the BIA’s decision in this court. The BIA denied her motion for reconsideration. Mejia-Velasquez subsequently filed a petition for review of the BIA’s denial of her motion for reconsideration in this court. In this appeal, we have consolidated both of her petitions for review.
II.
Mejia-Velasquez first argues that, although she failed to have her fingerprints taken, DHS failed to fulfill its own obligation under
This dispute turns on the meaning of the phrase “a biometrics notice” as used in
A.
I begin by examining the text of the regulation at issue. Section 1003.47 states that, “[a]t any hearing at which a respondent expresses an intention to file or files an application for relief for which identity, law enforcement, or security investigations or examinations are required under this section, unless DHS advises the immigration judge that such information is unnecessary in the particular case, DHS shall notify the respondent of the need to provide biometrics and other biographical information and shall provide a biometrics notice and instructions to the respondent for such procedures.”
The text of
First,
Second,
Third,
Fourth,
B.
Considering the above points collectively, I know that “a biometrics notice” must be: (1) a tangible document; (2) that DHS
The majority does not disagree that “a biometrics notice” must be “a tangible, written notice.” Op. at 11–12. Nor does the majority appear to disagree that DHS did not provide Mejia-Velasquez with such a document. But it nevertheless denies her petition, asserting that, even if DHS failed to comply with its notice obligations under
The majority cites no statute, regulation, or case law explaining why DHS may be excused from fulfilling its notice obligations solely because an IJ decided to provide some notice on his own accord. The parties cite none and I am aware of none. The regulation imposes notice obligations on DHS specifically. That should have ended our inquiry. We cannot simply transfer the obligations of one agency to another. As judges, “[w]e are no more entitled to denigrate [a] modest [regulatory] promise as some empty formality than we might dismiss as pointless the rules and statutes governing the contents of civil complaints or criminal indictments.” Niz-Chavez, 141 S. Ct. at 1485.
C.
As explained above, the text of
When promulgating
The DOJ’s published notice’s mirroring of the language in
In fact, contrary to the position that the Government has taken in this litigation, DHS’s own general practice suggests that even it agrees it must offer applicants a date and time to have their biometrics collected. According to the USCIS instructions discussed in Section I.A, applicants for relief from removal will receive an ASC notice that “provide[s] instructions . . . to appear for an appointment at a nearby ASC for collection of biometrics.” If that language left any doubt that ASC notices provide a date and time to have one’s biometrics collected, such doubt is dispelled by looking at the ASC notice that Mejia-Velasquez herself eventually received long after the IJ had pretermitted her applications — it provides a specific date and time to have her biometrics collected.5
Moreover, and also contrary to the position that the Government has taken in this litigation, there is evidence that DHS generally views this practice of providing ASC notices as an effort to comply with the requirement to provide a biometrics notice. As Mejia-Velasquez points out, USCIS often treats “biometrics notice,” “ASC notice,” and related phrases as interchangeable. On a USCIS web page titled Preparing for Your Biometric Services Appointment, USCIS interchangeably refers to the notice that applicants must bring to their biometrics appointment as both an “ASC appointment notice” and a “biometrics appointment notice[].” Preparing for Your Biometric Services Appointment, U.S. CITIZENSHIP & IMMIGRATION SERVS., https://www.uscis.gov/forms/filing-guidance/preparing-for-your-biometric-services-appointment.
As a general practice, DHS thus usually does attempt to comply with the requirement to provide a biometrics notice by issuing ASC notices. But for whatever reason, it failed to do so here. This failure is no small matter. According to USCIS’s own instructions, applicants must bring their ASC notice with them to their biometrics appointment. Without an ASC notice, USCIS will not allow an applicant to have her biometrics collected. And with that in mind, it becomes even more difficult to see how the generic form document that the IJ (not DHS) gave Mejia-Velasquez “substantially complied” with DHS’s obligation to provide a biometrics notice. Op. at 4, 15, 16. When the time comes for an applicant to have her biometrics collected, a generic form document provided by an IJ is worth little more than the paper it was printed on.
III.
I next address Mejia-Velasquez’s claim about the good cause doctrine.6 On this claim, Mejia-Velasquez makes three related arguments: (1) that
Section 1003.47 states that an IJ may dismiss an application for relief due to the applicant’s failure to have fingerprints taken “unless the applicant demonstrates that such failure was the result of good cause.”
Here, the IJ failed to give Mejia-Velasquez an opportunity to show good cause.
I cannot agree with the majority that the IJ gave Mejia-Velasquez an opportunity to show good cause when he subsequently asked both her counsel and the DHS attorney if there was “anything else before we adjourn.” The IJ did not raise that question until after he had already granted the Government’s motion; any response by Mejia-Velasquez or her counsel would have been a request for reconsideration. Moreover, the IJ directed this question to both Mejia-Velasquez’s counsel and the DHS attorney, indicating that he was asking whether there were other matters to discuss rather than offering an opportunity to revisit the merits of a motion he had already granted.8
IV.
Under the current immigration statutes, DHS has good reason to require applicants for relief from removal to submit fingerprints and other biometrics. But before DHS does so, it must first comply with specified notice obligations. Where, as here, DHS fails to do so, I would not fault the applicant. As the Supreme Court explained in Niz-Chavez, “[i]f men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.” 141 S. Ct. at 1486.
I respectfully dissent.