In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-4494

TELESFORO GUTIERREZ-ALMAZAN,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A36-748-745

____________

ARGUED JUNE 1, 2007—DECIDED JUNE 21, 2007

____________

Before FLAUM, MANION, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge. Telesforo Gutierrez-Almazan, a

native and citizen of Mexico, was admitted to the United

States as a lawful permanent resident in 1981. In 1994,

he pleaded guilty to criminal sexual assault of a minor.

Based on that conviction, the United States identified

Gutierrez-Almazan as an aggravated felon and in 1999

initiated removal proceedings against him. After an IJ

ordered him removed to Mexico, the Board of Immigration Appeals (“BIA”) reversed, holding that he was eligible

for relief under § 212(c) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1182(c) (1994), which was

repealed in 1996 but, under INS v. St. Cyr, 533 U.S. 289,

326 (2001), remains available to aliens who pleaded guilty
2 No. 05-4494

to an aggravated felony prior to the effective date of the

repeal and would have been eligible for relief at the time.

On remand, the IJ again ordered Gutierrez-Almazan

removed because his attorney filed the wrong application for relief. When Gutierrez-Almazan filed his brief

on appeal two days late, the BIA declined to accept the

brief. Gutierrez-Almazan petitions this Court for review,

arguing that the BIA abused its discretion by rejecting

his late brief. We grant Gutierrez-Almazan’s petition and

remand to the BIA.

I. INTRODUCTION

Gutierrez-Almazan moved to the United States from

Mexico on May 29, 1981, when he was ten years old. He

obtained a green card and has lived in this country since

that time. In 1993, he married his wife, Patricia Cortez, an

American citizen. They have two children, who are also

American citizens.

In 1994, Gutierrez-Almazan was convicted of criminal

sexual abuse of a minor and was sentenced to twenty-four

months probation and counseling. On March 29, 1999,

DHS seized Gutierrez-Almazan as part of “Operation

Predator,” an effort to find and remove non-citizens

convicted of crimes involving sexual abuse of a minor. DHS

served Gutierrez-Almazan with a Notice to Appear

(“NTA”), alleging that he was removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii). After DHS placed Gutierrez-Almazan

in removal proceedings, he hired Federico Trigo to represent him. Over the course of the case, Gutierrez-Almazan

paid Trigo $10,000.

On April 27, 1999, the immigration judge (“IJ”) held

that Gutierrez-Almazan’s conviction constituted an aggravated felony and that he was therefore ineligible for

any relief from removal. The IJ ordered Gutierrez-Almazan
No. 05-4494 3

removed to Mexico. On May 27, 1999, he appealed the IJ’s

decision to the BIA, which gave Gutierrez-Almazan until

August 6, 1999 to file his brief. On August 5, 1999, Trigo

mailed the BIA an extension request because he “had a

congested schedule” for the preceding five weeks. On

August 13, 1999, the BIA received the request and

granted the extension.

On June 25, 2001, the Supreme Court issued its opinion

in St. Cyr. On April 30, 2002, applying St. Cyr, the BIA

held that Gutierrez-Almazan was eligible for a waiver

under § 212(c) because he pled guilty to his criminal

offense before Congress repealed that statute. The BIA

remanded Gutierrez-Almazan’s case so that he could

apply for a § 212(c) waiver.

On remand, the IJ scheduled a merits hearing on

Gutierrez-Almazan’s § 212(c) waiver for August 5, 2004

and ordered Gutierrez-Almazan to file all supporting

documents thirty days prior to the hearing. GutierrezAlmazan did not file any documents with the IJ prior to

the hearing. On August 5, 2004, Gutierrez-Almazan and

Trigo arrived at the hearing with an application for

cancellation of removal, not an application for a § 212(c)

waiver. Additionally, Gutierrez-Almazan did not bring

any witnesses to the hearing because Trigo had advised

him that it was unnecessary.

DHS presented the IJ with two rap sheets. The first rap

sheet listed Gutierrez-Almazan’s full name and listed

“convicted sex offender registration” under the date April

1996. The second rap sheet referred to a January 2000

domestic battery arrest, a 2000 Driving Under the Influence (“DUI”) arrest, and two August 2001 DUI arrests.

DHS argued that Gutierrez-Almazan had not disclosed

any of these arrests to the court. Gutierrez-Almazan

denied that the second rap sheet was his, and Trigo noted

that the convictions were listed under an entirely different
4 No. 05-4494

name. Although Trigo was aware of the second rap sheet

before the hearing, he informed Gutierrez-Almazan not

to worry about it.

The IJ noted that Gutierrez-Almazan was ineligible for

cancellation of removal and asked Trigo why he did not

file the correct application or include any supporting

documentation. Trigo responded:

Your Honor, for several reasons. One of them is I,

there was problems communicating with my client, but

besides that, I was not sure. I was confused as to

whether this hearing was not on the merits of whether

he, he qualified, but whether Your Honor will reconsider. And the instructions from the Board of Immigration Appeals stated that it was addressed to Your

Honor saying to reconsider that you were going to

accept the application, and that was my confusion

right there.

The IJ stated that there was no ambiguity in the BIA’s

decision because it clearly stated that Gutierrez-Almazan

was eligible for a § 212(c) waiver. The IJ noted that

Gutierrez-Almazan’s documents were “woefully, woefully

inadequate,” and then held that Gutierrez-Almazan had

“abandoned his right to file for a § 212(c) waiver by lack

of prosecution and failure to file the application within

the time set by the Court.” Gutierrez-Almazan appealed

to the BIA pro se.

On June 23, 2005, Gutierrez-Almazan found an envelope

from the BIA in a pile of old newspapers in his house.

Gutierrez-Almazan did not open the envelope because

he planned to take it to the Legal Assistance Foundation

of Metropolitan Chicago (“LAF”). On June 28, 2005,

Gutierrez-Almazan took to the letter to LAF and discovered that his appeal brief was due that day. On June 29,

2005, LAF decided to represent Gutierrez-Almazan, and on

July 1, 2005, it sent a brief and a motion to the BIA by
No. 05-4494 5

overnight carrier seeking leave to file a late brief.

Gutierrez-Almazan attached to the motion evidence of

Trigo’s ineffective assistance.

On July 13, 2005, the BIA denied Gutierrez-Almazan’s

motion and returned his brief. On September 20, 2005,

Gutierrez-Almazan’s attorney sent a motion for leave to

file an amended notice of appeal, accompanied by an

amended notice of appeal. The BIA did not rule on the

motion. On November 4, 2005, the BIA held that

Gutierrez-Almazan failed to file a timely brief that met

the BIA’s requirements for an ineffective assistance of

counsel claim. The BIA further found that GutierrezAlmazan could not show prejudice from any ineffective

assistance because the BIA had ruled in Matter of Blake,

23 I & N. Dec. 722 (BIA 2005), that non-citizens convicted of sexual abuse of a minor are ineligible for § 212(c)

relief. On December 2, 2005, Gutierrez-Almazan filed his

petition for review.

II. DISCUSSION

Gutierrez-Almazan argues that the BIA erred by denying his motion to file a late brief. This Court reviews the

BIA’s decision for an abuse of discretion. Cf. Singh v.

Gonzales, 404 F.3d 1024, 1027 (7th Cir. 2005) (stating

that the Court reviews the denial of a motion to reopen or

reconsider under an abuse of discretion standard).

The BIA’s regulations grant it the discretion to accept or

reject late briefs. 8 C.F.R. § 1003.3(c)(1) (“In its discretion,

the BIA may consider a brief that has been filed out of

time.”). Although “the BIA is not required to write an

exegesis on every contention,” it is required to “consider

the issues raised, and announce its decision in terms

sufficient to enable a reviewing court to perceive that

it has heard and thought and not merely reacted.” Ssali v.
6 No. 05-4494

1 Gutierrez-Almazan also challenges the BIA’s holding that he

could not show prejudice from Trigo’s ineffective assistance

because he was ineligible for a § 212(c) waiver. Should the BIA

accept his brief on remand, it may wish to reconsider its prejudice ruling in light of the Second Circuit’s decision in Blake v.

Carbone, et al., ___ F.3d ___, 2007 WL 1574760 (2d Cir. June 1,

2007).

Gonzales, 424 F.3d 556, 564 (7th Cir. 2005) (internal

citations omitted). In denying Gutierrez-Almazan’s

motion to file a late brief, the BIA merely stated, “We find

the reason stated by the respondent insufficient for us

to accept the untimely brief in our exercise of discretion.”

This sparse ruling was inadequate to enable us to perform any meaningful review. The fact that the BIA found

Gutierrez-Almazan’s reason insufficient to accept his

late brief is implicit in its rejection of his motion. The

BIA has given this Court no indication that it took

account of Gutierrez-Almazan’s pro se status, education,

language skills, or any other factors that might be relevant to the merits of his motion. Indeed, we cannot tell

from the BIA’s order whether it “heard and thought,” or

“merely reacted.”

We also note that the BIA treated Gutierrez-Almazan’s

requests for extensions inconsistently. During GutierrezAlmazan’s first appeal, Trigo requested an extension of

time to file a brief with the BIA, stating that he “had a

congested schedule for the past five weeks.” The BIA

received this request over a week after the brief was

due, but nevertheless granted the motion. In his second

appeal, the BIA had both the request for an extension and

Gutierrez-Almazan’s brief within three days of its due

date, yet the BIA denied the motion. In short, we are

unable to determine from the BIA’s conclusory statement

whether it abused its discretion by refusing to accept

Gutierrez-Almazan’s late brief.1
No. 05-4494 7

III. CONCLUSION

For the above reasons, we REMAND to the BIA.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-21-07