United States Court of Appeals

For the First Circuit

No. 11-1444

YUBELKYS APONTE,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Circuit Judge,

Souter, Associate Justice,*

and Thompson, Circuit Judge.

Brian Monahan on brief for petitioner.

Tony West, Assistant Attorney General, Civil Division, David

V. Bernal, Assistant Director, Office of Immigration Litigation,

and Lindsay W. Zimliki, Attorney, Office of Immigration Litigation,

on brief for respondent.

June 21, 2012

*

 The Hon. David H. Souter, Associate Justice (Ret.) of the

Supreme Court of the United States sitting by designation.
THOMPSON, Circuit Judge. The case of Yubelkys Aponte is

before this court for a second time. This go-around she petitions

for review of a decision of the Board of Immigration Appeals (BIA)

denying her request for a remand and dismissing her appeal from a

final order of removal. Finding once again that the BIA failed to

adequately address certain issues, we deny the petition in part,

grant the petition in part, and remand. 

BACKGROUND

i. Aponte's Arrival, Arrest, and Removal Charge

Yubelkys Aponte is a thirty-three year old native and

citizen of the Dominican Republic. She was admitted to the United

States as a Lawful Permanent Resident (LPR) on February 2, 1996. 

A few years later, in 1999, Aponte pled guilty to Criminal

Possession of a Controlled Substance in the Fifth Degree in New

York. 

In the fall of 2003, Aponte came to the attention of the

Department of Homeland Security (DHS) when she sought to reenter

the United States at the Luis Muñoz Marin International Airport in

San Juan, Puerto Rico. Shortly thereafter, on January 21, 2004,

DHS served Aponte with a Notice to Appear. In it, DHS charged that

Aponte was removable pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II)

because she had been convicted of a controlled substance violation.

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ii. The IJ Proceedings

Before the Immigration Judge (IJ), Aponte, who appeared

with counsel, conceded removability. However, Aponte requested a

continuance so that her counsel could attempt to have her criminal

conviction expunged. The IJ accommodated this and additional

requests and ultimately three years of continuances followed. 

Aponte did not succeed in obtaining the expungement and, on June 4,

2007, the IJ called a stop to things and ordered Aponte removed. 

iii. The BIA Appeal

Aponte timely appealed the IJ's decision to the BIA.1

Though she indicated no reason for the appeal, she noted that a

brief would follow. A few months later, the BIA mailed a briefing

schedule to Aponte's then counsel. The briefing schedule was

mailed to the correct attorney, at the correct street address;

however, it omitted the firm name (Ross & Associates), which

Aponte's counsel had listed on her entry of appearance. No brief

from Aponte followed and so on November 18, 2008, the BIA summarily

dismissed her appeal. In response, Aponte's counsel (new attorney,

same firm) filed a motion to reopen the removal proceedings,

arguing that neither she nor Aponte received timely notice of the

briefing schedule and that the BIA's failure to include the firm

1 Because what happened next is set forth at length in a

previous decision of this court, we offer the abridged version. If

the reader would like a more detailed recitation of these facts,

see Aponte v. Holder, 610 F.3d 1 (1st Cir. 2010). 

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name in the mailing address constituted inadequate notice. The BIA

denied the motion to reopen finding insufficient information to

establish inadequate notice. Aponte petitioned this court for

review.

iv. The First Court of Appeals Petition

On June 18, 2010, we granted Aponte's petition. See

Aponte v. Holder, 610 F.3d 1, 2 (1st Cir. 2010) (Aponte I). We

held that the BIA abused its discretion by denying Aponte's motion

to reopen in an inadequately reasoned decision - namely, the BIA

failed to sufficiently dispose of the critical issue of whether

Aponte was entitled to have her proceedings reopened based on

inadequate notice of the briefing schedule. See id. at 5. The

particulars of the BIA's shortcoming in denying the motion to

reopen included the absence of meaningful analysis, a failure to

apply clear precedent, and misplaced findings. See id. The

solution: we remanded the case for the BIA to provide Aponte with

the opportunity to file a renewed motion to reopen and to decide

that motion in accordance with our opinion. See id. at 7. The

remand came with some caveats to Aponte. First, we noted that

Aponte's evidence that the briefing schedule was not timely

received - an affidavit completed by her attorney - was barely

sufficient and the issue needed clarification. See id. Second, we

pointed out that should the BIA decide to reopen, Aponte's ultimate

"likelihood of succeeding on the merits might well be negligible"

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as by all accounts she was having difficultly getting her

conviction expunged. Id.

v. The BIA Remand

With Aponte's case before it again, the BIA, in

accordance with our decision, allowed Aponte to file a new motion

to reopen. In the new motion, Aponte diversified her approach. 

Her first argument was familiar. Aponte again argued that

deficient notice of the briefing schedule meant that proceedings

should be reopened so she could properly brief the merits of her

appeal regarding removal. In support, and presumably in response

to the concerns we expressed about the first affidavit, Aponte's

counsel submitted a new affidavit clarifying that neither she nor

Aponte had any knowledge that a briefing schedule had been issued

until they received the BIA's dismissal of the case. 

Aponte then advanced a second and new argument. She

claimed that proceedings should be reopened, and her case remanded,

because the attorney who represented her before the IJ provided

ineffective assistance. According to Aponte, she only discovered

her former attorney's supposedly incompetent representation when

her current attorney reviewed the transcripts of the 2004 to 2007

IJ hearings. Aponte says this review occurred during the pendency

of her previous petition to this court. The gravamen of Aponte's

complaint with counsel's performance is that at the time she

conceded removability he did not request relief that she claims she

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is prima facie eligible for - cancellation of removal, asylum,

withholding of removal, and protection under the United Nations

Convention Against Torture (CAT). Aponte claimed she was a

candidate for cancellation of removal because she had never been

convicted of an aggravated felony, she was admitted for permanent

residence for at least five years, and, with her father's residency

in the United States imputed to her, she met the seven year

continuous residency requirement. Aponte asserted that she was

eligible for asylum, withholding, and CAT protection based on her

fear of returning to the Dominican Republic due to her membership

in the "social group" of women "considered to violate violently

enforced gender norms." And so Aponte requested that her case be

reopened and remanded so that she could apply for these forms of

relief.

The BIA took up Aponte's motion and issued a written

decision on March 31, 2011. After briefly reciting the facts and

procedural posture, the BIA indicated that it was reopening

proceedings and vacating its previous orders. What the BIA's

reasons for reopening were, we cannot say. Even though in Aponte

I we suggested that the BIA might want to cast a critical eye on

Aponte's notice deficiency arguments, it engaged in no analysis and

simply granted the motion to reopen out of hand. 

The BIA then proceeded to address the remand request and

it reached the following conclusions. One, Aponte was not eligible

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for cancellation of removal because she did not establish seven

years of continuous residence as she could not properly impute her

father's residency. Two, Aponte did not show that she is prima

facie eligible for asylum, withholding, or CAT protection (no

reasoning shored up this finding; more on this later). And

finally, three, Aponte could not establish ineffective assistance

of counsel because she had not demonstrated a reasonable

probability of prejudice. That is, the BIA concluded that even if

Aponte's counsel had requested the relief from removal that she now

seeks, the end result would have been the same because Aponte was

not eligible for such relief. For these reasons the BIA denied

Aponte's request for a remand to the IJ and dismissed her appeal. 

vi. The Second Court of Appeals Petition

Aponte once again petitioned this court, this time

seeking review of the BIA's March 31, 2011 order. In support of

her petition, Aponte argues that the BIA's rulings were erroneous,

that it abused its discretion in denying her request to remand

without explanation, and that the lack of a remand infringed on her

due process rights.2

2

 This is the last we will say of Aponte's due process claim. 

Aponte does not develop this argument, leaving the impression that

it was evoked solely for the purpose of circumventing our

jurisdictional constraints. This perfunctory treatment waives the

argument. See Rodríguez v. Municipality of San Juan, 659 F.3d 168,

175 (1st Cir. 2011).

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STANDARD OF REVIEW

Aponte's motion below was styled as a motion to reopen

with a request for a remand included in it. The BIA granted the

motion to reopen without any analysis and focused on the request

for a remand in its decision. Whether classified as a motion to

reopen or a request for a remand, the "nomenclature does not affect

the applicable legal framework." Mariko v. Holder, 632 F.3d 1, 7

(1st Cir. 2011). Because Aponte "seeks to have the BIA return an

appealed case to the IJ for further proceedings based on newly

available information," we treat her quest for relief as a motion

to reopen. Id.

We review the denial of a motion to reopen for abuse of

discretion. See Chedid v. Holder, 573 F.3d 33, 36 (1st Cir. 2009). 

We set aside the "decision only where it rests on an error of law

or reflects arbitrary or capricious decision making." Id.

(internal quotation marks omitted). The BIA's legal conclusions

are evaluated de novo, with deference given "to the BIA's

reasonable interpretations of statutes and regulations falling

within its purview." Matos-Santana v. Holder, 660 F.3d 91, 93 (1st

Cir. 2011) (internal quotation marks omitted). 

Our review is subject to an additional restriction, this

one jurisdictional in nature. Because Aponte was found removable

based on a conviction for a controlled substance violation, our

review (as it was in Aponte I) is limited to constitutional claims

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and questions of law. See 8 U.S.C. § 1252(a)(2)(C)-(D); see also

Larngar v. Holder, 562 F.3d 71, 75 (1st Cir. 2009). 

ANALYSIS

i. Cancellation of Removal

A deportable alien is eligible for cancellation of

removal if the alien: (1) has been lawfully admitted for permanent

residence for at least five years; (2) has resided in the United

States continuously for seven years after being admitted in any

status; and (3) has not been convicted of an aggravated felony. 

See 8 U.S.C. § 1229b(a)(1)-(3). Relevant for our purposes is the

so-called stop-time rule, which provides that an alien's period of

continuous residence is deemed to end when she is served with a

notice to appear or is convicted of certain criminal offenses,

including a controlled substance violation. See id. § 1229b(d)(1);

see also Peralta v. Gonzales, 441 F.3d 23, 24 (1st Cir. 2006). The

only debate here is whether Aponte met the seven year continuous

residency requirement of § 1229b(a)(2). Aponte raises two issues

of law with respect to the BIA's conclusion that she did not. We

address each in turn.

Aponte's first argument is that her 2004 placement into

removal proceedings - as opposed to her 1999 criminal conviction as

found by the BIA - stopped time for purposes of calculating her

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continuous residency.3 This claim is easily disposed of. Aponte

was lawfully admitted into the United States in 1996. She was

convicted in 1999 of a controlled substance violation,

approximately three years after she was admitted. Aponte was

served with a notice to appear in 2004, approximately eight years

after she was admitted. The stop-time rule explicitly provides

that the "earliest" of either of these two happenings (service with

a notice to appear or conviction of a controlled substance

violation) shall cause a period of continuous residency to end. 8

U.S.C. § 1229b(d)(1). Aponte's criminal conviction was earlier. 

Therefore her period of continuous residency ended after three

calendar years, and for reasons to follow, short of satisfying the

seven year continuous residency requirement. This takes us to

argument number two.

Aponte claims that even if the stop-time rule applies,

she still has seven years of continuous residence. Specifically,

according to Aponte, her father, who is now a United States

citizen, entered the United States in 1988. She asserts that his

years in the United States should be imputed to her for purposes of

satisfying the requirement. She made the same argument to the BIA. 

The BIA disagreed, relying on its precedent Matter of Ramirez3

 Aponte does not reach this conclusion by engaging in any

factual or legal analysis. She gets there by simply ignoring the

fact that her criminal conviction plays any role in the continuous

residency equation. It is a spurious argument. 

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Vargas, 24 I. & N. Dec. 599 (B.I.A. 2008).4

 To this court, Aponte

asserts that Ramirez-Vargas is an "erroneous ruling of law" that we

should reverse. In its stead, Aponte urges us to adopt a Ninth

Circuit case, Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.

2005), which she says supports her claim for imputation of her

father's residency.5 We decline the invitation. 

Following two circuits diverging from the path paved by

the Ninth Circuit in Cuevas-Gaspar, see Deus v. Holder, 591 F.3d

807, 811-12 (5th Cir. 2009)(finding reasonable the BIA's refusal to

allow an alien who entered the United States as a minor to impute

her parent's residency in order to satisfy the continuous residency

requirement), Augustin v. Attorney General of the United States,

520 F.3d 264, 270 (3d Cir. 2008)(same), the Supreme Court recently

4

In Ramirez-Vargas, an alien seeking cancellation of removal

could not meet the seven year continuous residency requirement of

§ 1229b(a)(2). See 24 I. & N. Dec. at 599-600. The alien sought

to impute his father's residency in the United States, in

particular the years he had resided with his father as an

unemancipated minor. See id. at 600. The BIA did not allow it,

relying on its earlier holding In re Escobar, in which it had found

no "logical or legal basis to consider the residence of a minor

alien's parents in determining whether the minor acquired the

necessary years of residence," 24 I. & N. Dec. 231, 233 (B.I.A.

2007). See Ramirez-Vargas, 24 I. & N. Dec. at 600-01. 

5 In Cuevas-Gaspar, the Ninth Circuit Court of Appeals

concluded that, for purposes of establishing the seven year

continuous residency requirement, "a parent's admission for

permanent residence status is imputed to the parent's unemancipated

minor children residing with the parent." 430 F.3d at 1029. 

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took up this parental imputation issue, Holder v. Martinez

Gutierrez, 132 S.Ct. 2011 (2012).6

In Martinez Gutierrez, the Supreme Court considered two

consolidated cases from the Ninth Circuit involving aliens seeking

cancellation of removal. The first alien, Carlos Martinez

Gutierrez, illegally entered the United States in 1989 at the age

of five with his parents. See id. at 2016. Martinez Gutierrez's

father gained LPR status a short time later but Martinez Gutierrez

did not do so until 2003. See id. Two years later he was caught

smuggling aliens across the border and removal proceedings were

instituted. See id. The second alien, Damien Sawyers, having been

preceded by his lawfully admitted mother by six years, legally

entered the United States as a LPR in 1995 at the age of fifteen. 

See id. at 2017. After a 2002 drug conviction, removal proceedings

were instituted. See id.

Both aliens sought cancellation of removal; however,

neither met the seven year continuous residency requirement of §

1229b(a)(2) and Martinez Gutierrez also could not satisfy the five

year lawful permanent residence requirement of § 1229b(a)(1). See

Martinez Gutierrez, 132 S.Ct. at 2016, 2017. The aliens tried to

get around this by seeking, as Aponte does, to impute their

parents' years in the United States. See id. In both cases, the

6

 This decision was issued after the BIA's decision and after

the parties had briefed this issue to this court. 

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BIA, relying on In re Escobar, declined to impute the parents'

years. See Martinez Gutierrez, 132 S.Ct. at 2016, 2017. On

petitions for review, the Ninth Circuit Court of Appeals remanded

the cases to the BIA with instructions to reconsider based on

Cuevas-Gaspar's most recent offspring, Mercado-Zazueta v. Holder,

580 F.3d 1102 (9th Cir. 2009). See Martinez Gutierrez, 132 S.Ct.

at 2017. The government sought certiorari. See id.

The end result: the Supreme Court reversed the Court of

Appeals. See id. Applying Chevron deference,7 it held that the

BIA's conclusion that an alien must meet § 1229b(a)(1) and (2)'s

requirements on his own, "without counting a parent's years of

residence or immigration status" was "based on a permissible

construction of the statute." Martinez Gutierrez, 132 S.Ct. at

2017. The Court reasoned that such an approach is in accord with

the statute's text, which "does not mention imputation, much less

require it" and which calls for the single individual alien to meet

the cancellation prerequisites. Id.

The Court went on to dispose of assorted arguments

advanced by the aliens. We highlight those that mirror Aponte's

contentions. First, the Court rejected the aliens' statutory

7

 Aponte claims that Chevron deference is not warranted in her

case because the BIA offered no rational explanation for its

decision. We need not get into the viability of Aponte's premise. 

It suffices to note that the BIA adequately explained why Aponte

could not impute her father's residency by relying on its precedent

and explaining why the cases Aponte cited were distinguishable. 

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history argument, specifically their reliance on the fact that some

courts, including the BIA, read § 1229b(a)'s predecessor - the

former § 212(c) of the Immigration and Nationality Act (INA) - as

allowing imputation of a parent's domicile. See Martinez

Gutierrez, 132 S.Ct. at 2018. The Supreme Court did not see the

significance. It noted that Congress eliminated the term domicile,

which was contained in § 212(c), from § 1229b(a) and as such the

principles of congressional ratification did not apply. See

Martinez Gutierrez, 132 S.Ct. at 2018. 

Another claim rejected by the Supreme Court was that the

INA's purposes demand imputation. See id. at 2019. While

recognizing that the INA is informed by goals of providing relief

to those with strong ties to the Unites States and promoting family

unity, the Court noted that these are not the INA's only goals. 

See id. The Court concluded that it could not read a silent

statute as requiring imputation "just because that rule would be

family-friendly." Id.

The Court was also not persuaded by the aliens' attempt

to classify the BIA's approach as inconsistent with its practice of

accepting imputation under similar statutory provisions. See id.

It explained that the reason behind these divergent results is that

the BIA imputes matters involving an alien's state of mind (e.g.,

knowledge of inadmissability or abandonment of LPR status) but not

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objective conditions or characteristics (e.g., residence or LPR

status). See id. at 2020.

The Supreme Court has made our job easy. Not only is

Martinez Gutierrez controlling, but its reasoning is sound. The

BIA's rebuff of Aponte's bid to impute her father's years in the

United States was based on a permissible construction of §

1229b(a).8 Without the benefit of her father's years in the United

States, Aponte fell well short of the seven years of continuous

residence required for cancellation of removal. As such, the BIA

did not abuse its discretion in denying Aponte's request for a

remand and dismissing her appeal based on her failure to establish

eligibility for cancellation of removal.

ii. Asylum, Withholding, and CAT Protection

The other reason the BIA gave for disposing of Aponte's

remand request and appeal was because it found that Aponte did not

demonstrate prima facie eligibility for asylum, withholding of

removal, and CAT protection. Precisely, the BIA stated: "However,

[Aponte's] most recent submissions to the Board, including her

brief, do not present sufficient arguments demonstrating that she

is prima facie eligible for asylum, withholding, or protection

8

 It is worth noting that the BIA, without having Martinez

Gutierrez to look to, issued an interpretation that was in accord

with its own precedent, Ramirez-Vargas, which it was obligated to

respect. See Mendez-Barrera v. Holder, 602 F.3d 21, 26 (1st Cir.

2010) (stating that "[a]n administrative agency must respect its

own precedent, and cannot change it arbitrarily and without

explanation, from case to case"). 

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under the Convention Against Torture." It then added: "Further, a

review of the asylum application, and the very limited evidence

attached to the asylum application, do not demonstrate . . . that

the respondent is now prima facie eligible for asylum, withholding

or protection under the Convention Against Torture." 

Unfortunately, as we were in Aponte I, we are faced with an

inadequately reasoned decision. 

Here the BIA simply stated that Aponte's submissions did

not demonstrate prima facie eligibility. It made no findings,

relied on no case law, and engaged in no analysis. Moreover, it

offered up no rationale for the decision it reached (e.g., Aponte

did not demonstrate that she is a member of a legally cognizable

social group, or Aponte cannot prove that it is more likely than

not that she will be tortured).9 While we suspect the BIA's

compact decision was a direct result of Aponte's own less than

thorough request for relief, and we are not suggesting that the BIA

should have dedicated pages upon pages to hashing out its merits,

we cannot turn a blind eye to the inadequacy of the decision. 

First, although Aponte's request was not the most

perfectly formulated, and the bulk of her attention went to her

cancellation bid, she gave the BIA enough to warrant a merits-based

decision. Aponte claimed membership with a supposed social group,

9

 These are just examples. We are not offering any opinion as

to whether such reasons would carry the day.

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articulated a fear of returning to the Dominican Republic, and

submitted a completed application for asylum and withholding with

an attached affidavit and articles about the Dominican Republic's

political and social climate. This is not the stuff of waiver, and

notably the BIA did not say otherwise.

Second, we have a jurisdictional wrinkle. In Larngar v.

Holder, 562 F.3d 71 (1st Cir. 2009), we were tasked with deciding

whether the BIA erred when it denied the petitioner's motion to

reopen based, in part, on his failure to establish prima facie

eligibility for CAT protection. As it is here, our jurisdiction in

Larngar was limited to legal and constitutional issues because, in

that case, the petitioner had been convicted of an aggravated

felony. See id. at 75. In debating the existence of jurisdiction,

we explained that there is a question (never explicitly answered by

this court) as to whether the BIA's determination that a petitioner

has failed to make out a prima facie case for substantive relief is

typically legal or factual in nature. See id. at 79-80. We

hesitated and, in the end, declined to resolve the question because

the BIA's determination that the petitioner had not established

prima facie eligibility for relief was too summary.10 See id. at

80. Instead we remanded. See id. Here the BIA's decision is

10 The BIA remarked: "the respondent's filing is insufficient

to support reopening on the likelihood of it being found 'more

likely than not' that the respondent would be tortured at the hands

of a government official if returned to Liberia." Larngar, 562

F.3d at 79. 

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equally summary, if not more so. Our ability to answer the

jurisdictional question, let alone embark on a meaningful inquiry

about the merits, is severely impacted. We do not know whether the

BIA's decision was based on a legal determination, a factual

determination, or something in between. Larngar is analogous and

the route taken there makes sense here.

Finally, and most fundamentally, we do not review

inadequately reasoned decisions.11 As we have said, "it is

extremely problematic for appeals courts to assess an exercise of

the BIA's discretion absent a reasonably clear signal as to the

precise rationale for its exercise of discretion." Onwuamaegbu v.

Gonzales, 470 F.3d 405, 412 (1st Cir. 2006). That is exactly the

problem here. The BIA's treatment was so summary as to constitute

arbitrary and capricious decision making. See Chedid, 573 F.3d at

36.

Accordingly, we conclude that the BIA abused its

discretion when it decided that Aponte failed to make out a prima

facie case for asylum, withholding, and CAT protection, and we set

aside the decision. See id. at 36-37; see also Onwuamaegbu, 470

F.3d at 412. We remand to the BIA with instructions to issue an

11 We have circumvented this rule when the IJ or BIA's grounds

were implicit or the basic rationale could be gleaned. See

Wiratama v. Mukasey, 538 F.3d 1, 6-7 (1st Cir. 2008); Waweru v.

Gonzales, 437 F.3d 199, 203-204 (1st Cir. 2006). This is not the

situation we are faced with here. We have no inkling why the BIA

decided what it did. 

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order of clarification explaining the rationale behind its

determination that Aponte did not establish prima facie eligibility

for asylum, withholding of removal, and CAT protection. 

iii. Ineffective Assistance of Counsel

Aponte's motion to reopen was based, in part, on her

claim that the attorney who represented her before the IJ provided

ineffective assistance. The supposed deficiency in the attorney's

representation was his failure to request cancellation and

withholding of removal, asylum, and CAT protection. The BIA did

not see things the same way, holding that Aponte's ineffective

assistance of counsel claim failed because she did not establish

prejudice since she is not prima facie eligible for this relief. 

See Zeru v. Gonzales, 503 F.3d 59, 72 (1st Cir. 2007) (stating that

"to succeed on an ineffective assistance of counsel claim,

petitioners must show 'a reasonable probability of prejudice'

resulting from their former representation"). As we said, the

BIA's decision as to Aponte's prima facie entitlement to asylum,

withholding, and CAT protection was inadequate. Because the

question of whether Aponte is eligible for this relief forms the

bedrock of the BIA's ineffective-assistance-of-counsel conclusion,

we cannot properly resolve it on this record.

CONCLUSION

With respect to the BIA's conclusion that Aponte is not

eligible for cancellation of removal, we deny Aponte's petition for

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review and affirm the decision of the BIA. As for the BIA's

determination that Aponte did not demonstrate that she is prima

facie eligible for asylum, withholding of removal, and CAT

protection, we grant Aponte's petition for review and remand to the

BIA for an order of clarification consistent with this opinion. 

Finally, regarding the BIA's finding that Aponte has not

established ineffective assistance of counsel, we grant the

petition for review and remand. No order of clarification is

needed with respect to this issue; we only remand as resolution of

this and the prima facie issue are inextricably tied.

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