OLAWOLE OLUWAJANA v. MERRICK B. GARLAND, Attorney General of the United States
No. 21-1804
United States Court of Appeals For the Seventh Circuit
March 9, 2022
Petition for Review of an Order of the Board of Immigration Appeals. No. A061-591-186. Argued December 1, 2021.
Before MANION, BRENNAN, and JACKSON-AKIWUMI, Circuit Judges.
Originally from Nigeria, Oluwajana became a lawful permanent resident of the United States in 2011. In 2017, he was convicted in Illinois state court of criminal sexual assault and aggravated criminal sexual abuse. Based on these convictions, the Department of Homeland Security charged him with removability. See
He was unrepresented throughout immigration court proceedings. At the final hearing, the immigration judge (IJ) wanted to know whether Oluwajana had been able to find an attorney. When Oluwajana said he had not, the IJ asked whether he was prepared to proceed anyway, and Oluwajana said he was. After confirming the state crimes of which Oluwajana was convicted, the IJ inquired whether there was any reason he could not return to Nigeria. Oluwajana stated that his entire family resided in the United States and that he believed he would be targeted by criminals upon his return to Nigeria. In response to the IJ, counsel for the government stated that she did not believe Oluwajana had a basis to file an “I-589,” an immigration form by which a person may request relief from an order of removal.
A few weeks after the hearing, Oluwajana was ordered removed from the United States. The IJ concluded that the state crimes of which Oluwajana was convicted constituted aggravated felonies and that no apparent eligibility for relief from removal had been demonstrated.
Oluwajana timely appealed to the Board in June 2020. Three months later, he retained counsel. His attorney promptly requested a copy of Oluwajana‘s immigration file from the Executive Office of Immigration Review (EOIR) and asked the Board
The Board denied the second extension request. Instead, it informed counsel that he could submit a brief after the due date along with a motion for its consideration.
Oluwajana‘s counsel filed the brief and the accompanying motion on March 8, 2021—12 days after the February 24 due date. The brief alleged that the IJ violated Oluwajana‘s due process rights by failing to give him an opportunity to file a Form I-589 and by not obtaining a knowing, intelligent, and voluntary waiver of the right to counsel. The brief further alleged that neither of Oluwajana‘s convictions constituted aggravated felonies justifying his removal. The accompanying motion asserted that counsel received a copy of the immigration case file from the EOIR so late that he did not have time to review its contents, consult with his client, and submit a brief by the February 24 deadline.
The Board issued its order in April 2021. First, it rejected Oluwajana‘s brief in a footnote, which read in its entirety:
The respondent filed two motions for extension of time to file a brief. The first was granted on January 26, 2021; the second was denied on February 24, 2021. The respondent‘s brief was due on February 3, 2021. It was received on March 8, 2021. The respondent requests acceptance of the late-filed brief. Because the respondent‘s second request for an extension of time was denied and because the respondent‘s brief is untimely by 33 days, the motion to accept the late-filed brief is denied.
The Board then concluded that Oluwajana‘s state convictions rendered him removable and that he was therefore ineligible for asylum or withholding of removal or other relief. The Board dismissed Oluwajana‘s appeal without directly addressing the arguments raised in his brief. This petition for review followed.
At the outset, we must ensure that we have jurisdiction to hear this petition. Generally, the Immigration Code authorizes our review of a final order of removal,
The parties agree that we should return this case to the Board for further proceedings. But Oluwajana contends that the
The rules surrounding the submission of a brief to the Board reflect a resolve to keep administrative proceedings moving expeditiously. Twenty-one days is the default period for all parties to simultaneously file initial briefs, and reply briefs may not be filed as a matter of course.
Deferential though that standard is, however, the Board must still exercise its discretion in a reasonable manner. To that end, this court must “ensure that the Board‘s legal interpretations stay within the boundaries permitted to it and that it has not unreasonably failed to consider relevant factual information” presented in the record before it. Chowdhury v. Ashcroft, 241 F.3d 848, 852 (7th Cir. 2001).
The Board provided only two reasons for denying Oluwajana‘s motion to submit a brief out of time: (1) the second request for an extension of the briefing deadline was denied, and (2) the brief was received 33 days late. Neither basis supports the Board‘s decision.
First, the mere fact that the Board denied a second extension request cannot justify the rejection of a late brief. The agency‘s own regulation prohibits the Board from extending the briefing deadline more than “one time per case.”
Next, and more obviously, the Board clearly erred in finding that Oluwajana submitted his brief 33 days late. After the Board granted the initial request to extend the briefing deadline, the due date was February 24, 2021, not February 3. So, when Oluwajana submitted his brief on March 8, it was only 12 days past due, not
To its credit, the government does not defend the Board‘s decision. Rather, without confessing error, the government urges us to remand the matter for the Board to reconsider whether to accept Oluwajana‘s brief. When the government requests a general remand and that request is opposed by the petitioner, we will grant the request “only when there is a
persuasive reason to do so.” W.G.A. v. Sessions, 900 F.3d 957, 963 (7th Cir. 2018). We discern no such reason here.
This is not a case where the Board‘s decision to reject a late brief turned on questions of disputable fact, such as whether an individual in removal proceedings received notice of the Board‘s briefing schedule, see Dakaj, 580 F.3d at 482–84, or whether lateness should have been excused based on a totality of subjective factors, like a petitioner‘s “pro se status, education, [or] language skills,” Gutierrez-Almazan v. Gonzales, 491 F.3d 341, 344 (7th Cir. 2007). In such cases, we remanded because the Board had yet to fulfill its obligation “to consider all relevant information,” and we were persuaded that the Board could—“at least in the first instance“—potentially justify its rejection of a brief. Dakaj, 580 F.3d at 483–84.
In the present case, the salient facts are undisputed. The government failed to provide Oluwajana‘s counsel with a copy of his immigration file—including the transcripts of immigration court proceedings—until February 16, 2021. This was almost two weeks after the initial deadline set by the Board to file an administrative brief, a brief that could not have been filed without review of the file. Yet, less than three weeks after the EOIR finally provided a copy of the file, counsel drafted a brief and filed it with the Board, a mere 12 days past the revised due date. That is, the delay resulted principally (if not entirely) from the tardiness with which the government fulfilled its obligation to provide Oluwajana‘s counsel critical information. And counsel, in turn, acted expeditiously when that information was received.
On these facts, any reasonable exercise of discretion required acceptance of Oluwajana‘s brief. Thus, we will not order a general remand solely for the Board to consider again the uncontested record already before it. At the same time, we decline to address Oluwajana‘s allegations of error by the IJ. Those contentions are best addressed in the first instance by the Board, which will now have the benefit of Oluwajana‘s briefed arguments.
We are mindful that the abuse-of-discretion standard is deferential and that deadlines are necessary for the operation of the immigration system, which we have acknowledged is “overburdened.” Vidinski v. Lynch, 840 F.3d 912, 918 (7th Cir. 2016). But the Board‘s own rules contemplate that, deadlines notwithstanding, it is sometimes appropriate to accept a late-filed brief. Based on the present circumstances, we conclude that this is one of those times.
The Board clearly abused its discretion in denying Oluwajana‘s motion to file his brief out of time; the brief must be accepted. Accordingly, we GRANT the petition for review, VACATE the Board‘s order, and REMAND for further proceedings consistent with this opinion.