21-6476 Jimenez-Shilon v. Garland

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 19th day of December, two thousand twenty-two. 4 5 PRESENT: ROSEMARY S. POOLER, 6 DENNY CHIN, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges. 9 ------------------------------------------------------------------ 10 DOMINGO JIMENEZ-SHILON, 11 12 Petitioner, 13 14 v. No. 21-6476 15 16 MERRICK B. GARLAND, UNITED 17 STATES ATTORNEY GENERAL, 18 19 Respondent. 20 ------------------------------------------------------------------ 21 FOR PETITIONER: Jose Perez, Law Offices of Jose 22 Perez, P.C., Syracuse, NY

1 1 FOR RESPONDENT: Brian Boynton, Principal 2 Deputy Assistant Attorney 3 General, Civil Division, 4 Anthony P. Nicastro, Assistant 5 Director, Office of Immigration 6 Litigation, Matthew B. George, 7 Senior Litigation Counsel, 8 Office of Immigration 9 Litigation, United States 10 Department of Justice, 11 Washington, DC 12 13 UPON DUE CONSIDERATION of this petition for review of a Board of

14 Immigration Appeals (“BIA”) decision, IT IS HEREBY ORDERED, ADJUDGED,

15 AND DECREED that the petition for review is GRANTED, the BIA’s decision is

16 VACATED, and the case is REMANDED for further proceedings consistent with

17 this order.

18 Petitioner Domingo Jimenez-Shilon, a native and citizen of Mexico, seeks

19 review of a July 27, 2021 decision of the BIA affirming a March 7, 2019 decision of

20 an Immigration Judge (“IJ”) that ordered his removal. We assume the parties'

21 familiarity with the underlying facts and procedural history, to which we refer

22 only as necessary to explain our decision to grant the petition.

23 I. Procedural Background

24 In 2014 the Department of Homeland Security (“DHS”) charged Jimenez-

2 1 Shilon with removability pursuant to

(a)(6)(A)(i) for being present

2 in the United States without admission or parole. At an October 2018 hearing,

3 Jimenez-Shilon, through counsel, admitted the allegations, conceded

4 removability, and expressed his intention to apply for asylum and withholding

5 of removal under the Convention Against Torture. The IJ ordered Jimenez-

6 Shilon to submit proof that he had complied with DHS’s biometrics (for example,

7 fingerprinting) requirements no later than thirty days before the next hearing.

8 The IJ also gave Jimenez-Shilon a copy of “the written frivolous asylum

9 warning,” which explains the consequences of knowingly filing an asylum

10 application that contains “deliberately fabricated” statements. Cert. Admin. R.

11 98, 213. Lastly, the IJ instructed Jimenez-Shilon’s counsel to “undertake the

12 responsibility of advising [him] of those warnings verbally.”

.

13 At a followup hearing in March 2019, the government informed the IJ that

14 Jimenez-Shilon had not completed his biometrics requirement. Jimenez-Shilon

15 responded that he thought that submitting his fingerprints in 2017 satisfied the

16 requirement. His counsel thus requested a continuance to permit him to submit

17 biometrics after the hearing. The IJ denied the request for a continuance and

18 concluded that Jimenez-Shilon had abandoned his asylum application.

3 1 Thereafter, the BIA dismissed Jimenez-Shilon’s appeal, concluding that the IJ had

2 not abused its discretion in denying the continuance or deeming the application

3 abandoned because Jimenez-Shilon had notice of the biometrics requirement and

4 failed to request a continuance prior to the hearing.

5 II. Discussion

6 Where, as here, the BIA affirms the IJ’s decision, we review both decisions

7 for completeness. See Marquez v. Garland,

, 111 (2d Cir. 2021). We

8 review for abuse of discretion the IJ’s determination that an applicant abandoned

9 an application for asylum by failing to timely submit a required part of the

10 application. See Dedji v. Mukasey,

(2d Cir. 2008).

11 On appeal, Jimenez-Shilon argues primarily that the IJ erred by failing to

12 provide proper notice of the biometrics requirement and to warn him of the

13 consequences of his failure to comply with the requirement. We agree.

14 Although a petitioner’s failure to comply with procedural processing

15 requirements, including providing biometrics, may constitute abandonment of

16 an asylum application, see

(c), (d), an applicant has certain

17 protections set forth in the regulations and BIA precedent. Specifically, the BIA

18 has held in a precedential opinion that when an applicant expresses an intention

4 1 to apply for asylum,

2 the Immigration Judge should do all of the following on the record: 3 (1) ensure that the DHS has advised the applicant of the need to 4 provide biometrics . . . and has furnished the appropriate 5 instructions; (2) inform the applicant of the deadline for complying 6 with the requirements . . . ; and (3) inform the applicant of the 7 consequences of noncompliance, including the possibility that the 8 application will be deemed abandoned and dismissed, unless the 9 failure to comply resulted from good cause.

10 Matter of D-M-C-P-,

(B.I.A. 2015); see also 8 C.F.R.

11 § 1003.47(d) (“The immigration judge shall specify for the record when the

12 respondent receives the biometrics notice and instructions and the consequences

13 for failing to comply with the requirements of this section.”).

14 As noted, the IJ instructed Jimenez-Shilon’s counsel that “compliance with

15 biometrics will be due 30 days in advance of the individual hearing date.” Cert.

16 Admin. R. 98. But the IJ failed (1) to “specify for the record” that Jimenez-Shilon

17 had been provided with the biometrics notice and instructions, or (2) to warn

18 Jimenez-Shilon about the consequences of noncompliance. And although the

19 application for asylum included a boilerplate warning about the consequences of

20 noncompliance, which the Government asserts is appropriate notice to Jimenez-

21 Shilon, that warning was not offered by the IJ on the record. See Matter of D-M-

22 C-P-,

;

(d). Moreover, the BIA dismissed

5 1 the appeal by relying in part on the written frivolous asylum warning provided

2 to Jimenez-Shilon, but that warning does not mention the biometrics

3 requirement. Cert. Admin. R. 98, 213.

4 Because, contrary to the BIA’s own precedent, “[t]he record does not

5 reflect that the applicant received the notification advisories concerning the

6 biometrics filing requirement, and there is no indication that he was . . . advised

7 of the consequences of failure to comply, including the possibility that his

8 application[] would be deemed abandoned,” Matter of D-M-C-P-,

at 650, we conclude that the agency erred in determining that Jimenez-Shilon had

10 abandoned his application. We therefore need not address Jimenez-Shilon’s

11 other argument that the agency erred in denying his motion for a continuance.

12 For the foregoing reasons, the petition for review is GRANTED, the BIA’s

13 decision is VACATED, and the case is REMANDED for further proceedings

14 consistent with this order.

15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk of Court 17

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