2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2013/13351 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 12

- 1453

___________ MOHAMED HIFLAN AHAMED HASSAN , Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent

___________ _________________________ On Petition for Review of an Order of the Board of Immigration Appeals

(Agency No. A099

- 592

- 706 ) Immigration Judge: Honorable Eugene Pugliese

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a ) January 23 , 2013 Before: FUENTES, HARDIMAN AND VAN ANTWERPEN , Circuit Judges (Opinion filed : January 25, 2013 )

_________ OPINION

_________ PER CURIAM Mohamed Hassan petitions for review of Board of Immigration Appeals (BIA) orders denying his applications for relief from removal. We will grant the petition. Because our decision today is narrow and procedural , we will not discuss the facts2 of the case at length. Hassan , a Tamil

- speaking citizen of Sri Lanka , alleges mistreatment in his home c ountry based on his perceived connections to the Liberation Tigers of Tamil Eelam (LTTE) . An Immigration Judge (IJ) denied Hassan’s applications for relief from removal. The BIA affirmed the IJ’s decision in part. It agreed that Hassan had failed to mee t the one

- year asylum filing deadline, and was thereby “ineligible for asylum

. ” W ith regard to his withholding of removal and Convention Against Torture claims , however, the BIA found “insufficient indication that [Hassan] was put on notice of the need fo r” evidence that corroborated his story

. T hus, the BIA “remanded [the case] to ensure compliance with applicable precedent decisions” of this Court. 1

The case resumed before the IJ on July 9, 2009 . Hassan’s counsel asked for “an opportunity . . . to obtain additional documents to further corroborate the claim.” A.R.
48. T he IJ agreed , on one condition: “ No material will be accepted from either side within 10 days of the hearing. ” A.R. 49 (emphasis added) . The ne xt hearing date was scheduled for April 13, 2010, about nine months later. The record reflects that the new evidence Hassan managed to obtain

— consisting of a psychiatric evaluation and a medical certificate from Sri Lanka

— was not received by the immigrati on court until April 5. At the April 13 hearing, the IJ excluded the evidence because Hassan had not submitted it by the specified deadline, and issued a short opinion explaining his decision to enforce the ten

- day rule while also incorporating his previo us merits ruling by Administrative Record (A.R.) 9 7

– 98

.

1 See Sandie v. Att’y Gen. , 562 F.3d 246, 25 2

– 53 (3d Cir. 2009) (explaining the corroboration inquiry and emphasizing that notice is required).3 reference. A.R. 42

– 43 , 56

. Hassan again appealed. The BIA affirmed, agreeing with the IJ’s decision to exclude the contested evidence and with the denial of withholding and Convention Against Torture relief

. Hassan petition s for re view. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We primarily review the BIA’s decision, although we may review the IJ’s determination to the extent that the BIA relied upon it. See Oliva

- Ramos v. Att’y Gen.
Hassan argues , in part, that the IJ’s enforcement of the ten

- day restriction on evidentiary submissions violated his right to Due Process. “ The fundamental requirement of due process is the opportunity to be heard at a meaningful t ime and in a meaningful
manner.” , 694 F.3d 259, 270 (3d Cir. 2012)

.

Chong v. INS

Hassan’s argument, however, implicates a potential abuse of discretion

. An IJ is authorized to set time limits for filing documents and may waive the opportunity to file if the deadline is not met. 8 C.F.R. § 1003.31(c) ; , 264 F.3d 378, 386 (3d Cir. 2001) (quotation marks omitted)

. As a Due Process claim, Hassan’s argument is without merit. He had more than nine months to submit new evidence, and was not prevented from requesting an extension of
t ime or otherwise alerting the IJ to difficulties in obtaining documents. Thus , it was not a constitutional violation to exclude the evidence.

see also Dedji v. Mukasey , 525 F.3d 187, 191 (2d Cir. 2008) (reviewing application of 8 C.F.R. § 1003.31(c) for abuse of discretion) . As the Gov ernment points out, the IJ’s deadline was actually more generous4 than the standard deadline , contained in the Immigration Court Practice Manual, 2 which usually requires that documents be submitted at least fifteen days before a master calendar hearing. Se e U.S. Dep’t of Justice, Immigration Court Practice Manual § 3.1(b)(i)(a), available at h ttp://www.justice.gov/eoir/vll/OCIJPracManual/Chap%203.pdf

. But the same Practice Manual also echoes the Federal Rules in an important aspect: deadlines, including th ose “prior to hearings,” that fall on weekends are “construed to fall on the next business day.” Id. § 3.1(c)(ii)(B). April 13, 2010 , the date of the hearing, was a Tuesday; April 3 , ten days before, was a Saturday. Thus, Hassan’s new evidence, which arrived at the i mmigration c ourt the following Monday, April 5, would appear to have been timely under the P ractice M anual. Arguably, then, the IJ abused its discretion by excluding new evidence

. 3
Because the BIA did not address this issue, we will remand for it to do so in the first instance. W e will not reach the merits of Hassan’s petition at this time.

2 The M anual, which was first released in February 2008, went into effect on July 1, 2008. See David L. Neal, Chief Immigration Judge, Operating Policies and Procedures Memorandum 08

- 03 (Amended): Application of the Immigration Court Practice Manual to Pending C ases 1

– 2 (June 20, 2008), available at http://www.justice.gov/eoir/vll/OCIJPracManual/08

- 03.pdf

. 3 We cannot conclusively say that this error, assuming one existed, was harmless. See Yuan v. Att’y Gen ., 642 F.3d 420, 42 7 (3d Cir. 2011) (applying harmles s - error review in immigration cases)

.