Pritam Taggar v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PRITAM KAUR TAGGAR, No. 09-71529

AKA Jaspreet Kaur Dhillon,

Petitioner, Agency No.

A045-253-632

v.

OPINION

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

October 10, 2013—San Francisco, California

Filed December 2, 2013

Before: J. Clifford Wallace, Milan D. Smith, Jr.,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Wallace

2 TAGGAR V. HOLDER

SUMMARY*

Immigration

The panel denied Pritam Taggar’s petition for review of

the Board of Immigration Appeals’ decision finding that she

waived and abandoned her applications for relief, and that she

was ineligible for a waiver of removability or inadmissibility.

The panel held that the standard of review applicable to

an Immigration Judge’s decision deeming an application

waived for failure to adhere to deadlines under 8 C.F.R.

§ 1003.31 is abuse of discretion. The panel held that a

deadline may lawfully be imposed upon an application for

relief under the Convention Against Torture, and that in this

case neither the IJ nor the Board abused discretion in holding

that Taggar waived her applications. The panel also held that

Taggar is not an inadmissible alien eligible for a waiver under

8 U.S.C. § 1227(a)(1)(H), because her charge of removability

is not waivable by that section, and because she was being

deported based on her conviction for falsifying documents,

not because she was inadmissible at entry.

COUNSEL

Maleeha Haq (argued), Fremont, California; Christopher J.

Stender, Immigration Practice Group, P.C., San Francisco,

California, for Petitioner.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

TAGGAR V. HOLDER 3

Kiley L. Kane (argued), Trial Attorney; Tony West, Assistant

Attorney General; John S. Hogan, Senior Litigation Counsel,

United States Department of Justice, Civil Division,

Washington, D.C., for Respondent.

OPINION

WALLACE, Circuit Judge:

Pritam Taggar seeks review of a final order of removal

issued by the Board of Immigration Appeals (Board). The

immigration judge (IJ) ordered Taggar removed from the

United States. Taggar appealed from that judgment to the

Board, and moved to remand the case. The Board dismissed

the appeal and denied the motion to remand. Taggar filed a

timely petition for review. We have jurisdiction under

8 U.S.C. § 1252(a)(1), and we deny the petition.

I.

On October 28, 2004, the government served Taggar with

a notice to appear and charged her as removable from the

United States under 8 U.S.C. § 1227(a)(1)(A), because she

was inadmissible at the time of her entry into the United

States. Her immigration proceedings were administratively

closed on June 29, 2005, pending resolution of criminal

proceedings against her. On May 23, 2006, Taggar was

convicted of conspiracy to defraud the United States through

visa fraud. The immigration proceedings recommenced, with

the government providing additional factual allegations and

two additional charges of removability, under 8 U.S.C.

§ 1227(a)(1)(G)(ii), for procuring a visa by fraud, and

4 TAGGAR V. HOLDER

8 U.S.C. § 1227(a)(3)(B)(iii), for her criminal conviction for

conspiracy to commit visa-related fraud.

In a January 24, 2007 proceeding before the IJ, Taggar’s

attorney conceded that she was removable as charged by the

government. The attorney stated “[t]he sole, the applications

[sic] that she will be pursuing are applications pursuant to

241(b)(3)(B), as well as Convention Against Torture.” The

IJ set the filing deadline for any such applications for April

24, 2007, as requested by Taggar’s attorney. Her attorney

requested and received three extensions to file the

applications for relief. But Taggar did not file any

application by the due date. The government moved to

pretermit Taggar’s applications because of the failure to file

timely. Taggar did not respond or file an application for

relief under the Convention Against Torture, but instead filed

a new ground of relief, requesting a waiver of inadmissibility

under 8 U.S.C. § 1227(a)(1)(H). The government renewed its

motion to pretermit, arguing that filing was late and that

Taggar was ineligible for the waiver.

On June 27, 2007, the IJ ruled that Taggar was

removable, and that she had abandoned her applications for

relief and waiver by the failure to file timely. The IJ ordered

Taggar removed to India. Taggar filed a motion to

reconsider, which was denied.

Taggar appealed from the removal order to the Board, and

moved before the Board to remand for a hearing on her

waiver application. The Board dismissed her appeal and

denied the motion to remand. The Board held that the IJ had

properly deemed Taggar’s applications abandoned and

waived. Further, the Board held that Taggar was not eligible

TAGGAR V. HOLDER 5

for the waiver of removability that she sought. Taggar seeks

review of the Board’s decision.

II.

We have not articulated the standard of review applicable

to an IJ’s decision to deem applications waived for failing to

adhere to deadlines imposed under 8 C.F.R. § 1003.31, which

allows the IJ to “set and extend time limits for the filing of

applications and related documents and responses thereto, if

any,” and provides that “[i]f an application or document is not

filed within the time set by the Immigration Judge, the

opportunity to file that application or document shall be

deemed waived.” We hold the standard is abuse of

discretion. First, that is the legal standard for reviewing

whether an IJ should have granted a motion for continuance.

Vargas-Hernandez v. Gonzales, 497 F.3d 919, 923 (9th Cir.

2007). Second, it is also the standard for reviewing a district

court’s dismissal of an action for failure to file timely in

compliance with its orders. Ferdik v. Bonzelet, 963 F.2d

1258, 1260 (9th Cir. 1992). Third, abuse of discretion is the

standard a number of our sister circuits use to review

decisions that an immigration application was abandoned as

untimely. Dedji v. Mukasey, 525 F.3d 187, 191–92 (2d Cir.

2008); Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1306 n.3

(11th Cir. 2009); Arellano-Hernandez v. Holder, 564 F.3d

906, 911 (8th Cir. 2009); Moreta v. Holder, 723 F.3d 31,

33–34 (1st Cir. 2013); cf. Hassan v. Gonzales, 403 F.3d 429,

436 (6th Cir. 2005).

We review the Board’s denial of motions to remand for

abuse of discretion. Vargas-Hernandez, 497 F.3d at 923.

6 TAGGAR V. HOLDER

III.

Neither the IJ nor the Board abused their discretion in

holding that Taggar had waived her application for relief and

protection. Taggar did not file her application for relief by

May 25, 2007, which was the extended due date for her

applications set by the IJ.

Taggar now argues that the IJ abused its discretion

because the May 25 deadline applied only to Taggar’s

application for withholding of removal, not an application

under the Convention Against Torture. This is incorrect.

Taggar’s attorney told the IJ that “[t]he sole, the applications

that she will be pursuing are applications pursuant to

241(b)(3)(B), as well as Convention against Torture.” The IJ

set the deadline for the “applications” as April 24, 2007.1

Taggar’s attorney did not mention any other applications or

motions.

Taggar wrongly argues that the deadline governed only

“withholding,” which refers to relief under the Immigration

and Nationality Act. Her attorney specifically mentioned that

the Convention Against Torture claim would be governed by

the same deadline, and protection under the Convention

Against Torture is also referred to as “withholding of

removal.” 8 C.F.R. § 1208.16 (entitled “Withholding of

removal under section 241(b)(3)(B) of the Act and

withholding of removal under the Convention Against

Torture”). Indeed, when Taggar’s attorney requested

continuances from the deadline, he requested a “72-Hour

Enlargement of Time to File Applications for Relief”

(emphasis added), not solely for a single application under the

1

The immigration judge erroneously wrote the date was April 24, 2006.

TAGGAR V. HOLDER 7

Immigration and Nationality Act. Neither the IJ nor the

Board abused their discretion in concluding that Taggar had

failed to file her applications within the deadlines set by the

immigration judge. Her application for a waiver of

inadmissibility was also filed after May 25, 2007, so the IJ

did not abuse its discretion in holding she abandoned that

application.

Taggar separately argues that no deadline can lawfully be

imposed on applications for relief under the Convention

Against Torture. This is incorrect. See 8 C.F.R. § 1208.16

(an alien must file an “application” under the Convention);

8 C.F.R. § 1003.31(c) (“[i]f an application or document is not

filed within the time set by the Immigration Judge, the

opportunity to file that application or document shall be

deemed waived”).

IV.

The Board concluded that Taggar abandoned her

application for a waiver of inadmissibility. The Board

additionally held that Taggar was ineligible for such a waiver.

Those rulings were not erroneous.

Some inadmissible aliens are eligible for waivers of their

removal by the Attorney General, who has discretion to waive

the removal “of aliens within the United States on the ground

that they were inadmissible at the time of admission as aliens

described in section 1182(a)(6)(C)(i).” 8 U.S.C.

§ 1227(a)(1)(H). An alien is inadmissible under section

1182(a)(6)(C)(i), and thus eligible for the waiver, if she

attempts to procure a visa or other legal documentation by

fraud or willfully misrepresenting a material fact. Id.

§ 1182(a)(6)(C)(i). The waiver extends to aliens who are

8 TAGGAR V. HOLDER

inadmissible on such a ground if they meet a number of

other conditions. The waiver “shall also operate to waive

removal based on the grounds of inadmissibility directly

resulting from such fraud or misrepresentation.” Id.

§ 1227(a)(1)(H)(hanging paragraph).

Taggar is not an inadmissible alien eligible for the waiver.

In its supplemental filing, the government charged her as

removable under 8 U.S.C. § 1227(a)(3)(B)(iii) (making aliens

convicted of certain crimes deportable), based on her criminal

conviction. As our sister circuit has held, that charge, under

a different paragraph of section 1227(a), is not waivable by

section 1227(a)(1)(H). Gourche v. Holder, 663 F.3d 882,

886–87 (7th Cir. 2011) (“it is clear that the phrase ‘this

paragraph’ in subparagraph (H)’s waiver provision refers

only to paragraph (1) of subsection (a)” not “grounds for

removal under paragraph (3) of 8 U.S.C. § 1227(a)”); see

also Vasquez v. Holder, 602 F.3d 1003, 1011–12 (9th Cir.

2010) (“First, § [1227(a)(1)(H)] provides that ‘the provisions

of this paragraph relating to the removal of aliens within the

United States on the ground that they were inadmissible at the

time of admission as aliens described in the fraud provision

may be waived.’ ‘This paragraph’ refers to § [1227(a)(1)]”)

(emphasis in original, alterations omitted). Moreover, Taggar

was not deportable under § 1227(a)(1), the subparagraph that

sets out grounds for inadmissibility. Rather, Taggar was

determined to be deportable under § 1227(a)(3)(B)(iii), which

provides for deportability based on a conviction under

15 U.S.C. § 1546 for failure to register and falsification of

documents. Taggar is thus being deported because she was

convicted of falsifying documents, and not because she was

inadmissible at entry. Accordingly, § 1227(a)(1)(H)’s

hanging paragraph is not applicable to her case, as it only

allows the Attorney General to waive grounds of

TAGGAR V. HOLDER 9

inadmissibility which are a direct result of acts of fraud and

misrepresentation specified in 8 U.S.C. § 1182(a)(5)(A) and

(7)(A). See § 1227(a)(1)(H)(i)(II). One of Taggar’s grounds

for removability cannot be waived by the discretionary

decision of the Attorney General. Therefore, the Board did

not err in determining that Taggar was ineligible for a waiver

of inadmissibility.

Petition DENIED.