Manguriu v. GarlandManguriu v. Garland
Bernal Peter Ojeda on brief for petitioner.
Brian Boynton, Assistant Attorney General, Shelley R. Goad, Assistant Director, and Tim Ramnitz, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.
THOMPSON, Circuit Judge.
Petitioner Joel Njoroge Manguriu, a Kenyan national, asks this court to review the decisions of an immigration judge and the Board of Immigration Appeals regarding whether U.S. Citizenship and Immigration Services properly served him with the notice of its intent to revoke his visa petition (underpinning his request for adjustment of status) and the official revocation that followed. In Manguriu‘s telling, the notice of intent to revoke his visa petition was legally insufficient because notice was not served directly upon him, rather it went out only to an individual he says is a “former” attorney. The government submits, inter alia, that service upon the attorney of record in the visa petition proceedings was proper based on the applicable regulations and relevant policies.
For reasons we‘ll soon explain, we must dismiss the petition for review.
Manguriu‘s path through our country‘s immigration system has been long and winding. When Manguriu‘s file first came before this court, “[t]he relevant facts [were] easily assembled.” Manguriu v. Lynch, 794 F.3d 119, 120 (1st Cir. 2015) (hereinafter “Manguriu I“). Given the passage of time, the various proceedings that played out in the interim, and the issue raised now on appeal, we have more background to lay out this time around. While we need not detail the totality of Manguriu‘s dense history before various immigration agencies and entities in order to inform and explain today‘s outcome, it is necessary to provide a somewhat comprehensive setup to appreciate the full picture of Manguriu‘s situation. (A heads-up to the reader -- make a flow chart.) We do so next, drawing the relevant facts from the administrative record. See Dor v. Garland, 46 F.4th 38, 42 (1st Cir. 2022).
Pre-Remand Proceedings
Manguriu entered the U.S. back in 1999 on a student visa, which he overstayed. He married a U.S. citizen in 2005 and she later filed an I-130 visa petition (seeking to classify Manguriu as a spouse of a U.S. citizen) in July of 2006. Based on that petition, Manguriu applied for adjustment of status.1 But U.S. Citizenship and Immigration Services (USCIS)2 denied the I-130
petition based on marriage fraud, and that threw a wrench into Manguriu‘s pursuit of adjustment of status. When the Department of Homeland Security (DHS) got removal proceedings underway in 2009, Manguriu sought relief from removal under the Violence Against Women Act (VAWA),
USCIS approved Manguriu‘s I-360 petition in December 2010, and Manguriu then used that approved petition to ask an immigration judge (IJ) to adjust his status. Making an adverse credibility finding and citing other reasons not relevant here, the IJ denied Manguriu‘s adjustment-of-status petition and ordered him removed in
That brings us to the part of Manguriu‘s procedural history that is at the root of his arguments before us now. In the wake of his petition to this court in which he challenged the BIA‘s affirmance of the IJ‘s decision denying his requested adjustment of status -- but before the Manguriu I panel rendered any decision on it -- USCIS sent out an April 24, 2014 notice of its intent to revoke its December 2010 approval of Manguriu‘s I-360 petition on the basis of his questionable credibility (laying out its own reasoning on this issue and also citing the IJ‘s opinion), which included an invitation to submit evidence that would rebut the cited grounds for revocation. The April 24 USCIS notice was sent by mail solely to the address for Cabelus, the attorney who filed Manguriu‘s I-360 back in January 2010. Specifically, it was addressed to “Joel Njoroge Manguriu, C/O Richard Cabelus Esq, 340 Main Street Suite 712, Worcester MA 01608.” USCIS got no response. On June 20, 2014, USCIS revoked its approval of the visa petition.
Since then, Manguriu has maintained he didn‘t receive any notice whatsoever of USCIS‘s intent to revoke -- Cabelus was not his attorney at the time the notice went out, he says, and no notice was sent to him personally. He argued as much in the reply brief he filed in Manguriu I, urging (in response to the government‘s argument that there was no valid visa petition upon which Manguriu could adjust status) that he lacked proper notice of USCIS‘s intent to revoke. Id. at 121, 122. In view of that argument, the Manguriu I court, taking judicial notice of USCIS‘s revocation decision, id. at 121, and the “tenebrous” record surrounding the issue, opted for a remand, id. at 122 (“The petitioner‘s claim that the revocation is ineffective for want of proper notice is sufficient (though barely) to raise a factual question requiring remand.“). It did so with instructions that the agency “make due inquiry and determine, among other things, whether the revocation of the VAWA [(I-360)] petition was lawfully accomplished and, if so, whether the BIA decision that is the subject of this petition for judicial review is now moot.” Id.3
Post-Remand Proceedings
Faced with this court‘s mandate, the BIA remanded to an IJ for further fact-finding on the notice question. At a January 2016 hearing, the IJ administratively closed (sua sponte) the proceedings to allow then-pro se Manguriu time to get a lawyer who could then help him undertake further action on his I-360 self-
petition before USCIS -- and the IJ instructed Manguriu to move to re-calendar the proceedings once he got a response from USCIS
Time -- and various continuances and other wranglings -- marched on.5 In March 2018, a counseled Manguriu appeared before the IJ. At that hearing, noting the case‘s “rather unusual posture” and mindful of this court‘s mandate and the BIA‘s remand to her, the IJ, at the government‘s request, queried whether she had jurisdiction to delve into whether Manguriu had received proper notice, the point being that she had no authority over USCIS and, if she found insufficient notice, she would be powerless to order USCIS to reopen the I-360 proceedings. Purportedly to sidestep this dilemma and pursuant to this court‘s order, the parties agreed that the IJ should engage in fact-finding to consider the notice-sufficiency question, and they asked her to hold a hearing for that purpose.
Manguriu and his counsel appeared before the IJ in August 2018 for that evidentiary and merits hearing. The IJ got things
started by setting the stage: USCIS served the 2014 notice and revocation decision on Cabelus, but did Cabelus still represent Manguriu in his I-360 proceedings at the time of service, or had he obtained new counsel? The government represented that Cabelus never withdrew from representing Manguriu in his I-360 proceedings, and no other counsel had ever entered an appearance in these proceedings -- certainly Manguriu had other counsel, such as attorney Jamie Jasso in Manguriu I, but when it came to representation before USCIS, Cabelus was the only attorney of record.
For his part, Manguriu testified he hired the Cambridge Lawyers Group to help him with his I-360 before USCIS and his adjustment of status, working with Cabelus and another attorney in that office, Oneyma Kamalu. After the BIA‘s 2014 decision, Manguriu testified, he had no contact with Cabelus or Kamalu; Jasso represented him in his Manguriu I petition for review, and Jasso never received notice of USCIS‘s notice of intent to revoke and revocation decision. Manguriu stated that, had he received notice, he would have responded. When the government asked when Cabelus and Kamalu stopped representing him, Manguriu answered that they stopped representing him after the BIA‘s February 2014 decision. When the government pressed Manguriu as to whether he‘d asked Cabelus and Kamalu to withdraw, he said no; when the government queried whether (to his knowledge) either of those attorneys had filed a request to withdraw, Manguriu said he didn‘t “have any . . . knowledge of that.”
The IJ wrestled with what she‘d heard: “[n]otice to counsel is notice to [Manguriu]“; “that [counsel] didn‘t notify [Manguriu] isn‘t the [g]overnment‘s fault“; “[b]ut [Manguriu] didn‘t have an opportunity to participate because his lawyers didn‘t tell him about the proceedings . . . I don‘t know what happened there“; “I mean there is a claim perhaps for ineffective assistance,” “[b]ut . . . is that the practical solution?“; and “[a]s a legal matter, . . . notice went to [Manguriu] through counsel. It was proper. . . . [T]here‘s nothing I can do.” The IJ asked, “[W]here does that leave us?”
And Manguriu‘s lawyer also pointed out “Manguriu never would have received the notice” directly from USCIS because, with VAWA applications, only the attorney of record receives notice, not a respondent.6 When the IJ asked whether Manguriu had taken any steps to reopen his I-360 proceedings, his lawyer said he had not. The hearing concluded when the IJ signaled she‘d issue a written decision.7
The IJ‘s written decision explained that USCIS served the notice and revocation decision on Manguriu‘s counsel of record for his I-360 self-petition (Cabelus), and service on counsel of record here constituted proper notice pursuant to
applicant or petitioner is represented, USCIS will send original notices both to the applicant or petitioner and his or her authorized attorney or accredited representative.“),8 and USCIS policy as promulgated by DHS. The IJ thus reasoned that, since USCIS “lawfully accomplished” notice, Manguriu‘s adjustment of status claim was moot for lack of an underlying visa.
Manguriu appealed to the BIA. He argued that notice had been improper in light of the fact that Manguriu had “provided notice of change of attorney to USCIS in subsequent submissions.” Alternatively, he urged,
In March 2022, the BIA affirmed the IJ‘s decision that USCIS properly served Manguriu. The BIA was not persuaded by Manguriu‘s unsupported argument that a different attorney represented him -- rather, the BIA wrote, while another attorney (Kamalu) did represent Manguriu as to his adjustment of status application, that attorney did not submit a form designating his appearance in proceedings for the underlying visa petition, “which is a separate and distinct matter.” The BIA reasoned that there was nothing in the record to suggest anyone other than Cabelus had served as counsel of record in Manguriu‘s I-360 proceedings. And since notice on counsel of record constitutes proper notice (
This timely petition for review followed.
Discussion
Against this layered backdrop, Manguriu‘s argument on appeal reprises the general thesis he‘s advanced since 2015, i.e., USCIS didn‘t properly serve him with its intent to revoke his visa and the agency9 erred in concluding otherwise. Should we see things his way, he says, the dominoes would fall like so: insufficient service means USCIS‘s revocation should be undone as a matter of law for want of notice; that would thereby resuscitate his visa petition; and that, in turn, would revive the foundation for his adjustment of status claim.10
Along the way, the government parries Manguriu‘s arguments to the contrary, flagging various exhaustion-related stumbling blocks and urging overall that Manguriu failed to present any exhausted challenge because the arguments he plugs here on appeal were not presented the same way below.
Manguriu‘s proposition here is straightforward -- the notice wasn‘t sent directly to him, and, on this record, the attorney who did receive the notice, for whatever reason (like the IJ, we “don‘t know what happened there“), did not loop Manguriu in. And thus, according to Manguriu, improper notification amounts to ineffective revocation of his visa petition. But his legal arguments run headlong into a series of barriers.
To explain, we lay out some guiding principles, starting with our parameters of review. “We review the BIA‘s conclusions of law de novo and provide ‘some deference to the agency‘s expertise in interpreting both the statutes that govern its operations and its own implementing regulations.‘” Sanchez v. Garland, 74 F.4th 1, 5 (1st Cir. 2023) (quoting Cabrera v. Lynch, 805 F.3d 391, 393 (1st Cir. 2015)). “Where, as here, the BIA
jurisdiction to adjudicate visa petitions, immigration judges “may examine the underlying basis for a visa petition when such a determination bears on the [non-citizen]‘s admissibility“).
Id. The remand for assessment of notice was cabined precisely to that question. We proceed to our review of the appeal from that sufficient-notice determination.
adopted the IJ‘s findings of fact, we review the IJ‘s findings for support by substantial evidence and ‘accept the [IJ‘s] factual findings . . . unless the record is such as to compel a reasonable factfinder to reach a contrary conclusion.‘” Id. (emphasis and omission in original) (quoting Dorce v. Garland, 50 F.4th 207, 212 (1st Cir. 2022)).
Now, the pertinent regulations and law that guide our analysis. Section 1229(a)(2)(A), relied upon by the agency here as generally prescribing how to effect notice in the context of removal proceedings,11 provides that written notice (of changes or postponements in removal proceedings, specifically) “shall be given in person to the [non-citizen] (or, if personal service is not practicable, through service by mail to the [non-citizen] or to the [non-citizen]‘s counsel of record, if any).” And then there‘s
Department of Justice, the Secretary of Homeland Security, the Secretary of State, or any other official or employee of [DHS] or Department of State (including any bureau or agency of either of such Departments)” “permit use by or disclosure to anyone . . . of any information which relates to [a non-citizen] who is the beneficiary of an application for relief” under certain sections, including VAWA. Drawing from this statutory imperative, the USCIS‘s Policy Manual relative to VAWA petitions charges that USCIS “[o]fficers must keep in mind the [§] 1367 confidentiality provisions . . . , as well as the prohibition on the unauthorized disclosure of information related to a protected person, including acknowledgment that a self-petition exists.” See USCIS Policy Manual, vol. 3, pt. D, ch. 6(A)(2) (citing
With this guidance in mind, and similarly mindful that Manguriu is not challenging the agency‘s fact-finding here, we examine his case.
Recall that a panel of this court remanded to the agency because, to determine whether revocation of the visa petition was lawfully accomplished, “potentially material facts” as to the notice issue needed to be found. Manguriu I, 794 F.3d at 122. The IJ did just that:
- Cabelus entered an appearance in the I-360 proceedings and never withdrew from representing Manguriu in his I-360 proceedings;
- No other counsel entered an appearance in the I-360 proceedings;
- Manguriu‘s counsel acknowledged that the attorney who handled the Manguriu I petition did not represent Manguriu before USCIS;
- Cabelus was the attorney of record for the I-360 proceedings; and
- USCIS served Cabelus with the notice of intent to revoke and the revocation decision.
On these unchallenged facts, coupled with the above-recapped regulatory and policy guidance providing for service of VAWA-based I-360 self-petitions -- and alert to our deference to the agency‘s knowhow when it comes to its own operations and regulations, see Sanchez, 74 F.4th at 5 -- we, like the agency, conclude notice was lawfully accomplished.
This conclusion is borne of how the relevant regulations and law flow together. Indeed, it‘s clear from the statute and regulations that notice generally can go to counsel of record and/or an applicant, and USCIS policy says the same -- except in the case of I-360 self-petitions under VAWA, where USCIS serves only the attorney of record because sending notice to the self-petitioner would run the risk that the petitioner‘s abuser would get notice too.
Section 103.2(b)(19)(ii)(A) instructs that notice should be sent “both to the applicant or petitioner and his or her authorized attorney or accredited representative,” while
And central to all of this is the fact that Manguriu‘s I-360 tapped into the power of VAWA -- that means notice here simply cannot be viewed in a regulation vacuum; the USCIS policy (based on
Resisting this conclusion, Manguriu says the agency‘s reliance on the above-mentioned law was erroneous. But his protestations are both unfounded and unpersuasive. Manguriu generally characterizes the agency as having committed legal error when it “relied exclusively on inapplicable rules of service.” But he does so without citation to caselaw supporting their inapplicability to this case (and our research
Indeed, among Manguriu‘s appellate contentions is his position that he was unrepresented at the time of the 2014 revocation happenings because Cabelus‘s representation automatically terminated pursuant to
he abstractedly faults the agency for failing to “consider these binding regulations.”
We understand his core thesis to be unchanged, but these supporting arguments and the regulations cited to anchor them are new to Manguriu‘s attack on the notice issue; crucially (and, from Manguriu‘s perspective, perhaps regrettably) they were not raised before the agency and therefore they are not exhausted. See, e.g., Odei v. Garland, 71 F.4th 75, 78 n.1 (1st Cir. 2023);14 Gomez-Abrego v. Garland, 26 F.4th 39, 47 (1st Cir. 2022) (explaining that “arguments not made before the BIA may not make their debut in a petition for judicial review of the BIA‘s final order” (quoting Ahmed v. Holder, 611 F.3d 90, 97 (1st Cir. 2010))); Daoud v. Barr, 948 F.3d 76, 82-83 (1st Cir. 2020) (refusing to review
petition or self-petition and in opposition to the grounds alleged for revocation of the approval.”
the unexhausted argument that resulted from a petitioner‘s attempt “to repackage his argument on appeal” as to an agency misapplying its regulations when “he did not contend before the BIA that the BIA could not rely on the regulations identified by the IJ and the corollary BIA regulation“). We thus do not consider them.15
In the law, notice can mean a great many things. See, e.g., Notice Black‘s Law Dictionary (11th ed. 2019) (collecting and defining different notice-related concepts, from “advance notice” to “short notice“). There are different types of notice and ways in which notice can be accomplished on the facts of any given case. To Manguriu‘s thinking, notice needed to be made as he argues -- upon him, the petitioner, not an attorney Manguriu
didn‘t think represented him anymore. Given the discouraging way things shook out for him, we can appreciate why he wishes this to be so. But “notice” and “personal knowledge” are not the same thing, see Vaz dos Reis, 606 F.3d at 5, and on this record, notice was undertaken and achieved in line with what the applicable statute, regulations, and policy required.
For the foregoing reasons, we dismiss the petition for review.
Notes
[b]ecause the government has raised a colorable claim of mootness and the facts relevant to that claim are not presently in the administrative record, a remand is necessary so that the BIA, either directly or through a further remand to the [IJ], may gather any available evidence relevant to the mootness inquiry (for example, whether the petitioner received actual notice of the revocation, the nature of the relationship between the petitioner‘s successive attorneys, and what, if any, steps the petitioner has taken since he learned of the revocation). See Bryson v. Shumway, 308 F.3d 79, 90-91 (1st Cir. 2002); City of Waco v. EPA, 620 F.2d 84, 86-87 (5th Cir. 1980). Such a task is well within the BIA‘s jurisdiction. See, e.g., In re Neto, 25 I. & N. Dec. 169, 173 (B.I.A. 2010) (noting that despite lack of
In all events, we note that, as to
And as to