### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 21

‐ 1804

O LAWOLE O LUWAJANA

,

Petitioner

,

v.

M ERRICK B. G ARLAND

, Attorney General of the United States,

Respondent

.

____________________

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A061

‐ 591

‐ 186

____________________

A RGUED D ECEMBER 1, 2021

— D ECIDED M ARCH 9, 2022

____________________

Before M ANION

, B RENNAN

, and J ACKSON

‐ A KIWUMI

, Circuit

Judges

.

M ANION

, Circuit Judge

. After an immigration judge or

‐

dered him removed from the United States, Olawole Olu

‐ wajana appealed to the Board of Immigration Appeals and re

‐

tained counsel to represent him. But the government was

slow in providing a copy of Oluwajana’s immigration fi le,

without which his a tt orney could not prepare a brief. The2 No. 21

‐ 1804

Board granted one extension but denied a second, suggesting

that Oluwajana instead submit his brief with a motion seeking

leave to fi le it late. When he did so, less than two weeks after

the submission deadline, the Board denied the motion in a

cursory—and factually erroneous—footnote. And having re

‐ jected the brief, the Board upheld the removal order without

considering Oluwajana’s allegations of error by the immigra

‐

tion judge. Based on the undisputed circumstances of this

case, we conclude that the Board abused its discretion by un

‐ reasonably rejecting Oluwajana’s brief. We therefore grant the

petition for review, vacate the Board’s order, and remand for

further proceedings.

Originally from Nigeria, Oluwajana became a lawful per

‐

manent resident of the United States in 2011. In 2017, he was

convicted in Illinois state court of criminal sexual assault and

aggravated criminal sexual abuse. Based on these convictions,

the Department of Homeland Security charged him with re

‐ movability. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is

convicted of an aggravated felony at any time after admission

is deportable.”).

He was unrepresented throughout immigration court pro

‐ ceedings. At the fi nal hearing, the immigration judge (IJ)

wanted to know whether Oluwajana had been able to fi nd an

a tt orney. When Oluwajana said he had not, the IJ asked

whether he wa s prepared to proceed anyway, and Oluwajana

said he was. After con fi rming the state crimes of which Olu

‐ wajana was convicted, the IJ inquired whether there was any

reason he could not return to Nigeria. Oluwajana stated that

his entire family resided in the United States and that he be

‐

lieved he would be targeted by criminals upon his return to

Nigeria. In response to the IJ, counsel for the governmentNo. 21

‐ 1804 3

stated that she did not believe Oluwajana had a basis to fi le

an “I

‐ 589,” an immigration form by which a person may re

‐

quest relief from an order of removal.

A few weeks after the hearing, Oluwajana was ordered re

‐

moved from the United States. The IJ concluded that the state

crimes of which Olu wajana was convicted constituted aggra

‐

vated felonies and that no apparent eligibility for relief from

removal had been demonstrated.

Oluwajana timely appealed to the Board in June 2020.

Three months later, he retained counsel. His a tt orney

promptly requested a copy of Oluwajana’s immigration fi le

from the Executive O ffi ce of Immigration Review (EOIR) and

asked the Board to delay se tt ing a brie fi ng schedule until he

received it. Eventually, the Board set a date of February 3,

2021, for any brief to be fi led. As the initial due date neared,

Oluwajana’s counsel advised that he still had not received a

copy of the fi le, including transcripts of immigration court

proceedings. The Board extended the due date for the brief to

February 24. As the new date approached, the EOIR still had

not supplied the fi le, and Oluwajana’s counsel asked the

Board for anoth er extension. While the extension request was

pending before the Board, counsel at last received the case fi le

on February 16. With only a week remaining before the Feb

‐

ruary 24 due date, counsel advised the Board that he could

not properly review the materials and prepare a brief in time;

he sought a 21

‐ day extension.

The Board denied the second extension request. Instead, it

informed cou nsel that he could submit a brief after the due

date along with a motion for its consideration.4 No. 21

‐ 1804

Oluwajana’s counsel fi led the brief and the accompanying

motion on March 8, 2021—12 days after the February 24 due

date. The brief alleged that the IJ violated Oluwajana’s due

process rights by failing to give him an opportunity to fi le a

Form I

‐ 589 and by not obtaining a knowing, intelligen t, and

voluntary waiver of the right to counsel. The brief further al

‐ leged that neither of Oluwajana’s convictions constituted ag

‐ gravated felonies justifying his removal. The accompanying

motion asserted that counsel received a copy of the immigra

‐

tion case fi le from the EOIR so late that he did not have time

to review its contents, consult with his client, and submit a

brief by the February 24 deadline.

The Board issued its order in April 2021. First, it rejected

Oluwajana’s brief in a footnote, which read in its entirety:

The respondent fi led two motions for extension

of time to fi le a brief. The fi rst was granted on

January 26, 2021; the second was denied on Feb

‐

ruary 24, 2021. The respondent’s brief was due

on February 3, 2021. It was received on March 8,

2021. The respondent requests acceptance of the

late

‐ fi led brief. Because the respondent’s second

request for an extension of time was denied and

becaus e the respondent’s brief is untimely by 33

days, the motion to accept the late

‐ fi led brief is

denied.

The Board then concluded that Oluwajana’s state convictions

rendered him removable and that he was therefore ineligible

for asylum or withholding of remova l or other relief. The

Board dismissed Oluwajana’s appeal without directly ad

‐ dressing the arguments raised in his brief. This petition for

review followed.No. 21

‐ 1804 5

At the outset, we must ensure that we have jurisdiction to

hear this petition. Generally, the Immigration Code author

‐

izes our review of a fi nal order of removal, 8 U.S.C.

§ 1252(a)(1), but not when removal is predicated on an alien

having commi tt ed an aggravated felony, id. § 1252(a)(2)(C).

Yet even in the la tt er case, we ret ain jurisdiction to consider

“questions of law.” Id. § 1252(a)(2)(D). Whether Oluwajana’s

prior convictions count as aggravated felonies, an issue he

raised both in this court and in the rejected brief he submi tt ed

to the Board, is just such a question. Eke v. Mukasey

, 512 F.3d

372, 378 (7th Cir. 2008). Because the Board’s fi nal order of re

‐

moval, among other things, concluded that Oluwajana’s state

convictions constituted aggravated felonies, we are secure in

our jurisdiction to review that order, including the Board’s

preliminary decision to reject his brief arguing that the basis

for his removal was legally erroneous.

The parties agree that we should return this case to the

Board for further proceedings. But Oluwajana contends that

the Board abused its discretion in rejecting his late

‐ fi led brief

and requests a remand with instructions that the Board accept

it. The government, in contrast, urges a general remand to

give the Board the opportunity to reconsider whether to ac

‐

cept the brief and, this time, provide an adequate explanation

for its decision.

The rules surrounding the submission of a brief to the

Board re fl ect a resolve to keep administrative proceedings

moving expeditiously. Twen ty

‐ one days is the default period

for all parties to simultaneously fi le initial briefs, and reply

briefs may not be fi led as a ma tt er of course. 8 C.F.R.

§ 1003.3(c)(1) (2021). The Board may extend the deadline to

fi le an initial brief “a maximum of one time per case

... for up6 No. 21

‐ 1804

to 14 days” and “neither party may request a further exten

‐

sion.” 1 Id. But, as most relevant here, the rules provide that,

“[i]n its discretion, the Board may consider a brief that has

been fi led out of time.” Id. Given that the issue is decided by

the Board on a discretionary basis, we unsurprisingly review

the denial of a motion to fi le a late brief for abuse of that dis

‐

cretion. Dakaj v. Holder

, 580 F.3d 479, 481 (7th Cir. 2009).

Deferential though that standard is, how ever, the Board

must still exercise its discretion in a reasonable manner. To

that end, this court must “ensure that the Board’s legal inter

‐ pretations stay within the boundaries permi tt ed to it and that

it has not unreasonably failed to consider relevant factual in

‐

formation” presented in the record before it. Chowdhury v.

Ashcroft

, 241 F.3d 848, 852 (7th Cir. 2001).

The Board provided only two reasons for denying Olu

‐ wajana’s motion to submit a brief out of time: (1) the second

request for an extension of the brie fi ng deadline was denied,

and (2) the brief was received 33 days late. Neither basis sup

‐

ports the Board’s decision.

First, the mere fact that the Board denied a second exten

‐

sion request cannot justify the rejection of a late brief. The

agency’s own regulation prohibi ts the Board from extending

the brie fi ng deadline more than “one time per case.” 8 C.F.R.

1 The extension period was capped at 14 days by an amendment to

§ 1003.3(c)(1) that took effect on January 15, 2021. Prior to this date, the

Board could extend a briefing deadline by up to 90 days. 85 Fed. Reg.

81,588, 81,588 (Dec. 16, 2020). It appears that the Board relied on its pre

‐

amendmen t auth ori ty to give Oluwajana a three

‐ week briefing extension,

from February 3 to February 24, 2021.No. 21

‐ 1804 7

§ 1003.3(c)(1). 2 But the same regulation goes on to say that the

Board “ may consider a brief that has been fi led out of time.”

Id. (emphasis added). Thus, the Board’s rules envision that a

late brief may be accepted even though a second extension of

the brie fi ng deadline is barred. It was nonsensical for the

Board to deny Oluwajana permi ssible relief because he was

not fi rst granted relief that the Board’s rules prohibit. We will

not sustain a decision based on the Board’s interpretation of

its rules that causes “unreasonable, unfair, and absurd re

‐

sults.” Chowdhury

, 241 F.3d at 853.

Next, and more obviously, the Board clearly erred in fi nd

‐ ing that Oluwajana submi tt ed his brief 33 days late. After the

Board granted the initial request to extend the brie fi ng dead

‐

line, the due date was February 24, 2021, not February 3. So,

when Oluwajana submi tt ed his brief on March 8, it was only

12 days past due, not the month and more stated in the

Board’s order. The Board abuses its discretion when it exer

‐

cises that discretion based on factual determinations “con

‐

trary to the detailed evidence in the record.” Siddiqui v. Holder

,

670 F.3d 736, 746 (7th Cir. 2012).

To its credit, the government does not defend the Board’s

decision. Rather, without confessing error, the government

urges us to remand the ma tt er for the Board to reconsider

whether to accept Oluwajana’s brief. When the government

requests a general remand and that request is opposed by the

petitioner, we will grant the request “only when there is a

2 The language explicitly permitting only one extension of the briefing

deadline was added to § 1003.3(c)(1) by the January 2021 amendment, but

it did not effect a change. It simply codified existing Board policy “not to

grant second briefing extension requests.” 85 Fed. Reg. at 81,588.8 No. 21

‐ 1804

persuasive reason to do so.” W.G.A. v. Sessions

, 900 F.3d 957,

963 (7th Cir. 2018). We discern no such reason here.

This is not a case where the Board’s decision to reject a late

brief turned on questions of disputable fact, such as whether

an individual in removal proceedings received notice of the

Board’s brie fi ng schedule, see Dakaj

, 580 F.3d at 482–84, or

whether lateness should have been excused based on a total

‐ ity of subjective factors, like a petitioner’s “pro se status, edu

‐

cation, [or] language skills,” Gutierrez

‐ Almazan v. Gonzales

,

491 F.3d 341, 344 (7th Cir. 2007). In such cases, we remanded

because the Board had yet to ful fi ll its obligation “to consider

all relevant information,” and we were persuaded that the

Board could—“at least in the fi rst instance”—potentially jus

‐ tify its rejection of a brief. Dakaj

, 580 F.3d at 483–84.

In the present case, the salient facts are undisputed. The

government failed to provide Oluwajana’s counsel with a

copy of his immigration fi le—including the transcripts of im

‐ migration court proceedings—until February 16, 2021. This

was almost two weeks after the initial deadline set by the

Board to fi le an administrative brief, a brief that could not

have been fi led without review of the fi le. Yet, less than three

weeks after the EOIR fi nally provided a copy of the fi le, coun

‐

sel drafted a brief and fi led it with the Board, a mere 12 days

past the revised due date. That is, the delay resulted princi

‐ pally (if not entirely) from the tardiness with which the gov

‐

ernment ful fi lled its obligation to provide Oluwajana’s coun

‐

sel critical information. And counsel, in turn, acted expedi

‐ tiously when that information was received.

On these facts, any reasonable exercise of discretion re

‐ quired acceptance of Oluwajana’s brief. Thus

, we will not or

‐

der a general remand solely for the Board to consider againNo. 21

‐ 1804 9

the uncontested record already before it. At the same time, we

decline to address Oluwajana’s allegations of error by the IJ.

Those contentions are best addressed in the fi rst instance by

the Board, which will now have the bene fi t of Oluwajana’s

briefed arguments.

We are mindful that the abuse

‐ of

‐ discretion standard is

deferential and that deadlines are necessary for the operation

of the immigration system, which we have acknow ledged is

“overburdened.” Vidinski v. Lynch

, 840 F.3d 912, 918 (7th Cir.

2016). But the Board’s own rules contemplate that, deadlines

notwithstanding, it is sometimes appropriate to accept a late

‐

fi led brief. Based on the present circumstances, we conclude

that this is one of those times.

The Board clearly abused its discretion in denying Olu

‐ wajana’s motion to fi le his brief out of time; the brief must be

accepted. Accordingly, we GRANT the petition for review,

VACAT E the Board’s order, and REMAND for further pro

‐ ceedings consistent with this opinion.