Immigration – Removal Order

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7^th Circuit Court of Appeals

Case Name: Haiyan Chen v. William P. Barr

Case No.: 19-2375

Officials: EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.

Focus: Immigration – Removal Order

Haiyan Chen, a citizen of China, entered the United States without inspection (that is, by stealth) in 2004. She was detected in 2010, and immigration officials opened removal proceedings. The charging document is called a “Notice to Appear,” and a form with that caption was dated April 27, 2010. The form did not meet the statutory requirements for a Notice to Appear, however, because it omitted the time and place for a hearing. See 8 U.S.C. §1229(a)(1)(G)(i); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Immigration officials sent Chen a separate document, dated July 29, 2010, with that information. Chen appeared as ordered, and many other hearings followed. She asked for asylum, which an immigration judge denied on the ground that 8 U.S.C. §1158(a)(2)(B) gives aliens only one year after entering the United States to request that relief. The Board of Immigration Appeals dismissed her appeal on March 28, 2017, and we denied a petition for review. Chen v. Sessions, No. 17-1797 (7th Cir. Jan. 4, 2018) (nonprecedential).

In September 2018 Chen filed a motion asking the Board to reopen her case so that she could seek cancellation of removal, a remedy available to some aliens who have lived in the United States for a decade. She recognized that the motion was untimely—a statute allows only 90 days after the Board’s original decision, see 8 U.S.C. §1229a(c)(7)(C)(i)—but asked for the benefit of equitable tolling. She also recognized that she had not sought cancellation of removal during the original proceedings, even though they continued past the tenth anniversary of her arrival. She contended that, until the Supreme Court issued Pereira in June 2018, neither she nor her lawyers recognized that she might be eligible for that relief. Pereira opened their eyes, and Chen contended that she should receive its benefit.

Exhaustion of administrative remedies provides an example. Exhaustion is a condition of judicial review in immigration cases, 8 U.S.C. §1252(d)(1), but not a subject within the scope of Chenery. When an alien fails to raise an issue on time, in the right way, or at all, before the Immigration Judge and the Board of Immigration Appeals, the court denies the petition for review under §1252(d)(1) without sending the proceeding back to ask the Board what it thinks about the subject. A procedural forfeiture is an adequate reason to end the process of judicial review. That’s what has occurred here: Chen took far too long to contest the adequacy of the charging document, just as Ortiz-Santiago did. If Chen had advanced a plausible argument that she suffered prejudice, we would remand for the Board to consider that possibility. But, as we have mentioned, Chen amended every scheduled hearing and does not explain how the use of two documents rather than one prejudiced her. It is the agency that potentially suffers prejudice from Chen’s delay: the problem could have been fixed in 2010 or 2011 or 2012 or 2013, before Chen had been in the United States for a decade.

There is another way to read Ortiz-Santiago. Perhaps the court bypassed Chenery because any possible error was harmless. That is an established reason for deciding without remand. See Cronin v. Department of Agriculture, 919 F.2d 439, 442–43 (7th Cir. 1990) (futile remands are unnecessary); Borovsky v. Holder, 612 F.3d 917, 920–21 (7th Cir. 2010) (remand is unnecessary when it would lead to a finding of harmlessness). If an application of the harmless-error rule is the best way to understand Ortiz-Santiago, the doctrine is equally applicable to Chen’s situation. The Board rejected Chen’s argument under Mendoza-Hernandez, finding that the two documents added up to one valid Notice to Appear. Forfeiture would have been an alternative ground of decision, here as in Ortiz-Santiago. By ignoring the problem when it could have been fixed, Chen bypassed the benefit of the claim processing rule. A person who allows a procedural error to lurk in the record until the 10 years have passed, and brings it to light only then, has surrendered any opportunity for judicial relief. The petition for review is denied.

Petition denied

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.