In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3367

THELMA LOPEZ FIGUERAS, et al.,

Petitioners,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals.

Nos. A99-346-275, A99-346-276, A99-346-277 & A99-346-278

ARGUED FEBRUARY 26, 2009—DECIDED JULY 27, 2009

Before BAUER, KANNE, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Thelma Figueras, a native and

citizen of the Philippines, entered the United States in

2002 with her husband and two children. All four overstayed their visitors’ visas. In 2006 Figueras filed an

application to adjust her status to that of a lawful permanent resident based on her employment as a registered

nurse. The Department of Homeland Security denied her

application and initiated removal proceedings. Figueras
2 No. 08-3367

tried to renew her application during the removal proceedings, but the immigration judge (“IJ”) held that she

had abandoned her application because she failed to

submit the required documents 14 days before her hearing. In fact, Figueras’s attorney had filed a motion

for a continuance a month before the scheduled hearing

in order to obtain the documents establishing Figueras’s

eligibility to adjust status. The IJ, mistakenly believing

that the motion had been filed by an attorney who had

not entered an appearance in the case, disregarded the

motion. Rather, at the scheduled hearing on the merits, the

IJ declared the adjustment application abandoned and

ordered the petitioners removed.

On appeal the Board of Immigration Appeals (“BIA”)

assumed that the IJ had abused his discretion in

declining to rule on the motion for the continuance.

However, it held that the error was harmless because

Figueras was ineligible for adjustment of status. In so

holding, the BIA failed to consider the additional

evidence of Figueras’s eligibility to adjust status that she

submitted on appeal—evidence that the IJ’s error had

effectively excluded from the record. Figueras petitioned

this court for review, arguing that the BIA violated her

right to a reasonable opportunity to present evidence of

her eligibility. We agree. Under 8 U.S.C. § 1229a(b)(4),

Figueras had a right to a reasonable opportunity to

present her evidence of eligibility for adjustment of

status. The BIA violated this right by refusing to either

remand the case to allow the IJ to consider her additional

evidence or ruling on the merits of her claim as a matter

of law. Accordingly, we grant the petition for review and

remand for further proceedings.
No. 08-3367 3

Her employer did not file a visa petition on her behalf 1

until March 2006.

The record appears to show that Aquilino Figueras, Mr. 2

Figueras’s grandfather, is a naturalized U.S. citizen. After

(continued...)

I. Background

After overstaying her visitor’s visa by more than three

years, Thelma Figueras filed an application with the

Department of Homeland Security (“DHS”) in 2006 to

adjust her status based on her employment as a

registered nurse. See 8 U.S.C. § 1255(a). She named her

husband, Danilo Figueras, and two children as derivative

beneficiaries of her application. DHS denied Figueras’s

application in 2007 for three reasons: (1) she failed to

submit her nursing credentials in time; (2) she was ineligible for adjustment of status because she had overstayed

her visa, see 8 U.S.C. § 1255(c); and (3) she could not

escape the consequences of her illegal status by invoking

8 U.S.C. § 1255(i) because she was not the beneficiary of

a visa petition filed before April 30, 2001. DHS 1

then initiated removal proceedings against each of the

petitioners.

At the removal hearing before the IJ, the Figuerases’

attorney requested additional time to explore any remaining avenues of relief. Specifically, he noted that the

petitioners may be eligible for adjustment of status

through Danilo Figueras, who was listed on an I-130 form

filed by his grandfather on behalf of his father and approved in 1977. The IJ granted the Figuerases a three- 2
4 No. 08-3367

(...continued) 2

becoming a citizen, Aquilino filed an I-130 form (a petition for

an alien relative) on behalf of Lauro Figueras, his married son

who still lived in the Philippines. The I-130 also listed Danilo

Figueras, Lauro’s minor and then-unmarried son, as a beneficiary. The petition was approved in 1977. Lauro immigrated to

the United States and soon thereafter became a lawful permanent resident. Danilo remained in the Philippines and married

Thelma before coming to the United States in 2002 on a

visitor’s visa. Thelma Figueras argues that she is eligible for

adjustment of status through her husband’s “grandfathered”

status, but does not further explain how her husband’s

status might confer eligibility on her and her children.

month continuance and set the merits hearing for August

22, 2007. He required the petitioners to submit their

adjustment applications, any supporting documents, and

their merits brief by August 8, 2007. On July 20 the

Figuerases filed a motion for a continuance, requesting

more time to collect the necessary documents. The IJ did

not rule on the motion because he mistakenly thought it

had been filed by an attorney who had not made an

appearance in the case. Accordingly, by the time of

the merits hearing, the Figuerases had not produced

their adjustment applications or any supporting documentation. The IJ held that they had abandoned their

applications and ordered them removed.

On appeal, the BIA affirmed the IJ’s order of removal,

but on different grounds. It assumed without deciding

that the IJ had abused his discretion in declining to rule

on the Figuerases’ motion for a continuance. However,
No. 08-3367 5

the BIA held that the error was harmless because

Thelma Figueras, the principal applicant, had overstayed

her visa and was thus ineligible to adjust her status. See

8 U.S.C. § 1255(c) (aliens who fail to maintain a continuously lawful status in the United States are not eligible

for adjustment of status). Furthermore, the BIA concluded she did not qualify for adjustment under 8 U.S.C.

§ 1255(i), which waives any period of illegal stay in the

United States if a visa petition was filed on behalf of the

petitioner on or before April 30, 2001, because her employer did not file a visa petition on her behalf until

2006. The Board noted Figueras’s argument that she

might be eligible to adjust status through her husband’s

alleged grandfathered status but refused to consider

her evidence on this point because it had not been submitted originally to the IJ. The BIA then dismissed the

appeal, and Figueras petitioned for review.

II. Discussion

Figueras first challenges the IJ’s refusal to rule on her

motion for a continuance, arguing that the refusal constituted an abuse of discretion. The focus of this argument,

however, is misplaced. The BIA subsequently issued an

independent decision that assumed error on the IJ’s

part and went on to decide the merits of Figueras’s application. When the BIA issues an independent opinion

that does not merely adopt or supplement the opinion
6 No. 08-3367

We have previously held that continuance decisions fall 3

within the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B)(ii). Iqbal

Ali v. Gonzales, 502 F.3d 659, 663-64 (7th Cir. 2007). Figueras

briefly argues that her case comes under the rule laid out in

Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004). Subhan stands

for the proposition that we can review the denial of a continuance motion when that denial effectively nullifies the alien’s

statutory opportunity to adjust status. This jurisdictional issue

simply is not implicated here. As we have noted, rather than

affirm the IJ’s decision to deny the continuance, the BIA assumed this denial was error and addressed the merits of

Figueras’s application, albeit without addressing her additional evidence. Subhan does not apply in this situation. See,

e.g., Garcia-Casiano v. Mukasey, 258 F. App’x. 30, 32 (7th Cir.

2007) (holding that a case does not fall within the Subhan

exception if the BIA acknowledges error by the IJ and decides

the case on different grounds). That is, we have the merits—not

the propriety of a continuance decision—before us on this

petition for review.

of the IJ, we review the BIA’s superceding opinion only.3

Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007).

Next, Figueras argues that the BIA violated her dueprocess right to a fair hearing by refusing to consider

her additional evidence on appeal. We have repeatedly

stated, however, that statutory claims should come

before constitutional claims. Aliens have a statutory right

to a reasonable opportunity to present evidence in their

favor, 8 U.S.C. § 1229a(b)(4), and proceedings which

comply with statutory and regulatory requirements also

satisfy due process. Rehman v. Gonzales, 441 F.3d 506, 508

(7th Cir. 2006). “We have cautioned against ‘leading with
No. 08-3367 7

an open-ended due process argument’ and advised that

‘[a]liens should stick with claims based on the statutes and

regulations unless they believe that one of these rules

violated the Constitution or that lacunae in the rules have

been filled with defective procedures.’ ” Pronsivakulchai

v. Gonzales, 461 F.3d 903, 907 (7th Cir. 2006) (quoting

Rehman, 441 F.3d at 509). The proper inquiry—and the

one we undertake here—is whether the BIA violated

Figueras’s statutory right to a reasonable opportunity

to present evidence in her removal proceeding. See 8 U.S.C.

§ 1229a(b)(4).

The question whether the BIA violated this statutory

right is a question of law that we have jurisdiction to

review. 8 U.S.C. § 1252(a)(2)(D). Here, the BIA dismissed

Figueras’s appeal instead of either remanding the case to

the IJ to consider her additional evidence of eligibility or

ruling on her alternative theory as a matter of law. The

BIA justified its dismissal by stating that Figueras did not

present this evidence to the IJ and that the applicable

regulations bar the BIA from considering new evidence

on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv).

It is true that the relevant regulations prohibit the

BIA from engaging in fact-finding on appeal, but they

also give the Board authority to remand a case to the IJ if

additional fact-finding is necessary. Id. Here, the BIA

began its analysis by assuming that the IJ had abused

his discretion by refusing to consider Figueras’s motion

for a continuance. Figueras needed the extra time to

gather evidence of the alternative ground for her

eligibility to adjust status. Having assumed that the IJ
8 No. 08-3367

had wrongfully refused to give Figueras more time to

collect this documentation, the BIA could not then fault

Figueras for failing to submit all her evidence to the IJ

in the first place. Rather than simply dismissing the

appeal, the BIA should have either remanded the case to

allow the IJ to consider the additional evidence or addressed her alternative ground for eligibility as a matter

of law.

The government argues that remand was inappropriate because Figueras never filed a motion to remand or

reopen the proceedings before the IJ. See 8 C.F.R.

§ 1003.1(d)(3)(iv) (a party requesting additional factfinding “must file a motion for remand”) (emphasis

added). As we have noted, however, the BIA also has the

authority to remand a case sua sponte if further factfinding is necessary. Id. (“If further factfinding is needed

in a particular case, the Board may remand the proceeding to the immigration judge . . . .”). The proper

remedy for the assumed error was to remand the case

to permit Figueras to present her evidence to the IJ in

the first instance. Alternatively, the BIA could have

addressed, as a matter of law, Figueras’s adjustment

application under her proposed alternative theory of

eligibility that hinged on Danilo Figueras’s status. The

BIA’s failure to do either was erroneous.

The government also argues that Figueras forfeited her

argument concerning her eligibility to adjust through

Danilo Figueras by failing to develop it sufficiently. It is

true that Figueras gave this argument rather cursory

treatment in the proceedings before the BIA, as well as
No. 08-3367 9

The BIA noted Figueras’s limited development of her alterna- 4

tive argument but did not decide the appeal on this basis.

Rather, at the end of its opinion, the BIA wrote: “Moreover, the

respondents implicitly argue, without any citation to supporting

legal authority, that a lead applicant for adjustment of status,

who is otherwise ineligible for adjustment . . . may become

eligible . . . because a derivative applicant for adjustment of

status is allegedly the derivative beneficiary of an adjustment

application filed on his father’s behalf.” (Emphasis added.)

The BIA then dismissed the appeal without further discussion

or analysis of the issue.

before this court. She has not fully explained how she is

eligible based on her husband’s “grandfathered” beneficiary status. However, the BIA dismissed Figueras’s

appeal not because she had failed to develop this argument on appeal but because she had not produced evidence to support it before the IJ. That she did not do so 4

was attributable to the IJ’s error in disregarding her

motion for a continuance and deeming her adjustment

application abandoned. Accordingly, we think the

decision to accept or reject Figueras’s alternative theory

that she and her family are eligible for adjustment of

status should be made by the agency in the first instance,

on an appropriate record.

In addition to showing error, however, Figueras must

also show prejudice. Rehman, 441 F.3d at 509. As our

discussion thus far makes clear, Figueras was obviously

hindered by the BIA’s refusal to either remand the case

to allow the IJ to consider her additional evidence of

eligibility or rule on her alternative theory as a matter
10 No. 08-3367

of law. As it stands, it is unclear whether Figueras’s

additional evidence would establish to the agency’s

satisfaction that she is eligible for adjustment of status.

However, once the BIA assumed error on the part of the

IJ in disregarding the motion for a continuance, Figueras

was entitled to have either the IJ or the BIA assess her

alternative theory of eligibility on the merits. If the IJ

had received and considered her additional evidence, he

may have found her eligible for adjustment of status, and

the rest of the family along with her. See Boyanivskyy v.

Gonzales, 450 F.3d 286, 294 (7th Cir. 2006). Likewise, if the

BIA had considered her proffered alternative basis for

eligibility, it may have held that she had a viable theory

and remanded to the IJ for further fact-finding. True,

the BIA might have determined that the additional evidence was insufficient, as a matter of law, to render

Figueras eligible for adjustment of status. Either way,

Figueras was entitled to have either the IJ or the BIA

rule on the merits of her alternative theory of adjustment

eligibility.

Accordingly, we GRANT the petition for review,

VACATE the BIA’s decision, and REMAND for further

proceedings.

7-27-09