F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

P R I T A M K A U R T A G G

A R , AKA J aspreet Kaur Dhillon, P etitioner
,

v

.

E R I C H. H O L D E R , J R ., Attorney General, Respondent

. N o. 09-71529

Ag ency No. A045-253-632

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted October 10, 2013—San F rancisco, California

F iled December 2, 2013

B e fore: J . Clifford W allace, Milan D. Smith, J r., and Sandra S. I kuta, Circuit J udg es.
Opinion by

J udg e W allaceT A G G A R V

. H O L D E R 2

SUMMARY *

Im m igration

The p anel denied Pritam Tag g a r ’s petiti o n for review o f the B oard of I mmig ration Appeals’ decision finding that she waived and abandoned h er a p plications f

o r relief, and that she

was inelig ible for a waiver o f removability or inadmissibility

.

The panel held that th e standard of review applicable to

an I m m ig ration J udg e’s decision deeming an a pplication waived f or failure to adhere to deadlines under 8 C.F .R. § 1003.31 is abuse of discretio n

. Th e panel held that a deadline may lawfully be imposed u p o n an application for relief under the Convention Ag ainst Torture, and that in this

case neither the I J nor the B oard a b used discretion in holding that Tag g a

r waived her applications. The panel also held that Tag g ar is not a

n inadmissible alien elig ible for a waiver under 8 U.S.C. § 1227(a)(1)(H), because her charg e of r emovability is not waivable by that section, and because she was being deported based on her conviction for falsif y i n g documents, not because she was inadmissible at entry

.

COUNSEL

Malee h a Haq (arg

ued), F remont, California; Christopher J

. Stende r , I mmig ration Practice Group, P.C., San F rancisco, California, for Petitioner.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.T A G G A R V

. H O L D E R 3

Kiley L

. K ane (arg

ued), Trial Attorney ; Tony W est, Assistant Attorney G eneral; J ohn S. H og a n , Senior L itig ation Counsel, United States Department of J ustice, Civil Di v ision, W a shing ton, D.C., for Respondent.

OP INION

W A L L ACE, Circuit J udg e :

P r i t a m Tag g ar seeks review of a final order of remov al issued by the B oard o f I m m i gration Appeals (B oard). The immig ration j u d ge (I J ) o rdered Tag g ar removed from the United States. Tag g ar a

ppealed from tha t judg ment to the B oard, a nd moved to remand the case. The B o ard dismissed
t h e a p peal and denied the motion to remand. Tag g ar filed a timely petition for review. W e have ju r i sdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition.

I

.

On October 28, 2004, the g o vernment served Tag g ar with

a n o t ice to appear and c harg ed her as removable from the United States under 8 U.S.C. § 1227(a)(1)(A), becau s e s h e

was inadmissible at the time of her entry into the U n i t ed States. H er immig r ation proceeding s we r e administratively closed on J une 29, 2005, p ending r e s o l u tion of criminal proceeding s ag ainst her. On May 23, 2006, Tag g ar was convicted of conspiracy to d efraud the United States throug h visa fraud. The immig ration proceeding s recommenced, with the g overnmen t p r oviding additional factual alleg ations a nd
two additional charg es o f removabilit y , u n der 8 U .S.C. § 1227(a) ( 1 ) ( G) (ii), for procuring a visa by fraud, a ndT A G G A R V

. H O L D E R 4

8 U.S.C. § 1227(a)(3)(B )(iii), f or her criminal conviction for conspiracy

to commit visa-related fraud.

I n a J anuary

24, 2007 p roceeding

before the I J , Tag g ar’s attorney conceded that she was removable as charg ed by the
g overnment. The attorney stated “[ t] he sole, the applications [ sic] that she w ill be p ursuing are application s p u r s u ant to 241(b)(3)(B ), as well as Convention Ag ainst Tortur e

. ” T he I J set the filing deadline fo r any such applications for April 24, 2007, as requested by Tag g ar’s attorney

. He r a t t o r ney requested and receive d three ex tensions to file the applications f

or relief. B ut Tag g ar did not file any

a p p l i c ation by the d

ue date. The g overnment moved to pretermit Tag g ar’s applications because of the failure to file timely

. Tag g ar did not respond or file an application for relief under the Convention Ag ainst T o rture, but instead filed

a new g round of relief, requesting a waiver of inadmissibility under 8 U.S.C. § 1227(a)(1)(H). The g overnment renewed its motion to pretermit, arg uing that filin g w a s late a nd that Tag g ar was inelig ible for the waiver.

O n J u n e 27, 2007, the I J r u led that Tag g ar w a s removable, and that she had abandon e d her applications for relief and waiver by the f

ailure to file timely

. The I J ordered Tag g ar removed to I ndia. T ag g ar filed a motion to reconsider, which was denied.

Tag g ar a ppealed from the removal order to the B oard, a nd moved before the B oard to r emand for a h e a r i ng o n her waiver application. The B oard dismissed her appeal a nd denied the motion to remand. The B oard held that the I J h ad properly deemed Tag g ar’s a pplications a b a n doned a nd waived. F urther, the B oard held that Tag g ar was not elig ibleT A G G A R V

. H O L D E R 5

for the waiver of removability that she soug ht. Tag g ar seeks review of the B oard’s decision.

I I

.

W e have not articulated the standard of review applicable
to a n I J ’s decision to deem applications waived for failing to adhere to deadlines imposed under 8 C.F .R. § 1003.31, which allows the I J to “set and ex t e n d t i m e limits for the filing o f applications and related documents and responses thereto, if
any ,” and provides that “[ i] f an application or document is not filed w i t h in the time set by the I mmig ration J udg e, the opportunity to f

ile that applica t i on or document shall be deemed waived.” W e h old the standard is abuse o f discret i on. F irst, that is the leg al standard f or reviewing whether an I J should have g ranted a motion f or continuance. Vargas-Hernandez v. Gonzales
, 497 F .3d 919, 923 (9th Cir. 2007). Second, it is also the standard for reviewing a district court’s dismissal of an action f or f ailure to f

ile timely in compliance with its orders. Ferdik v. B o n z e l e t , 9 63 F .2d 1258, 1260 (9th Cir. 1992). Third, abuse of discretion is the standard a num b e r o f our sister circuits use to r eview decisions that an immig ration application was abandoned as untimely

. Dedji v. Mukasey
, 525 F.3d 187, 191–92 ( 2d Cir. 2008); Kueviakoe v. U.S. Att’y Gen.
, 567 F .3d 1301, 1306 n.3 (11t h Cir. 2009); Arellano-Hernandez v. Holder
, 564 F .3d 906, 91 1 ( 8th Cir. 2009); Moreta v. Holder
, 723 F .3d 31, 33–34 (1st Cir. 2013); cf. Hassan v. Gonzales
, 403 F

. 3d 429, 436 (6th Cir. 2005).

W e r e v i e w the B o ard’s denial of motions to remand for abuse of discretion. Vargas-Hernandez , 497 F .3d at 923.T A G G A R V

. H O L D E R 6

I I I

.

Neither the I J no r t he B oard abused their d iscretion in holding that Tag g ar had waived her application for relief a nd
pro t e c t i o n. Tag g ar d id not file her application for relief b y May 2 5, 2007, w hich was the ex tended due da t e f or her applications set by

the I J

.

T ag g ar now a

r g ues that the I J abused its discr e t i o n because the May 2 5 d e adline applied only to Tag g ar’s application for withholding of removal, not an a p p lication under the Convention Ag ainst To r t u r e

. This is incorrect. Tag g ar’s attorney told the I J that “[ t] he sole, the applications that she wil l b e pursuing are applications pursuant to 241(b)(3)(B ), as well as Convention ag ainst Torture.” The I J
set the deadli n e for the “applications” as April 24, 2007. 1 Tag g ar’s attorney did not mention any o ther appl i c a tions o r motions.

Tag g ar wro n gly a

rg u es that the deadline g overned only “withholding ,” which r efers to relie f u nder the I mmig r ation and Nationality Act. H er attorney specifically mentioned that the Convention Ag a inst Torture c laim would be g overned b y the same deadline, and prote c tion under the Convention Ag ainst Torture is also referred to a s “withholding o f removal.” 8 C.F .R. § 1 2 0 8 .16 (entitled “W ithholding o f removal under section 241(b)(3)(B ) of the Ac t a nd withholding of removal under the Conve n t ion Ag ainst Torture”). I ndee d
, w hen Tag g ar’s attorney requested continuances f

rom the deadline, he request ed a “72-Hour Enlarg ement of Time to F ile Application s f o r Relief” (emphasis added), not solely for a sing le application under the

1 T h e im m ig ratio n j u d g e erro n eo u sly w ro t e th e d ate w as A

pril 2 4
, 2 0 0 6

.T A G G A R V

. H O L D E R 7

I mmig r a tion and Nationality Act. N either the I J nor the B oard abused their discretion in concluding that Tag g a r h ad f a i l e d to file her applications within the deadlines set b y t h e immig ration judg e. Her a pplicat ion for a waiver o f i nadmissibility was also filed after May 25, 2007, so the I J did not abuse its discretion in holding she abandone d t h at application.

Tag g ar separately arg ues that no d eadline can lawfully be imposed on applications for relief under the Convention Ag ainst T orture. This is i n c o r r e ct. See 8 C.F .R. § 1208.16 (an alien must file an “application” under the Convention); 8 C.F .R. § 1 0 03.31(c) (“[ i] f an application or document is not filed within the t i m e set by the I mmig ration J udg e, the opportunity to f

ile that applicati o n or document shall be deemed waived”).

I V.

The B oard concluded that Ta ggar abandoned her application for a waiver of inadmissibility

. The B o a r d additionally held that Tag g a r was inelig ible for such a waiver. Those ruling s were not erroneous.

Some inadmissible aliens are elig ible for waivers of their removal by the Attorney G eneral, who has discretion to waive the r emoval “ of aliens w ithin the United States on the g r ound that they were inadmissible at the time of admission as a liens described in section 1182(a ) ( 6 )( C )( i )

. ” 8 U .S.C. § 1 227(a)(1)(H). An alien is inadmissible under section 1182(a)(6)(C)(i), and thus e lig ible for the waiver, if she attempts to procure a visa o r other leg a l documentation b y fraud or willfully misrep r esenting a material fact. Id. § 1182(a)(6)(C)(i). The waiver e x tends to aliens who a reT A G G A R V

. H O L D E R 8

inadmissible on such a g round i f t h e y meet a number o f other conditions. The waiver “shall also operate to waive removal b ased o n the g rounds o f inadmissibility d irectly resulting from such fraud o r misrepresentation.” Id. § 1227(a)(1)(H)(hang ing parag raph).

Tag g ar is n ot an inadmissible alien elig ible for the waiver. I n its supplemental filing
, the g overnment charg ed her a s removable under 8 U.S.C. § 1227(a)(3)(B )(iii) (making a liens convicted of certain c rimes deportable), based on her criminal conviction. As our sister circuit has held, that charg e, under

a different parag raph o f section 1227(a), is not waivable b y section 1 227(a)(1)(H)

. Gourche v. Holder
, 663 F .3d 882, 886–87 ( 7th Cir. 2011) ( “it is clear that the phrase ‘this
parag raph’ in subparag r a p h (H)’s waiver provision refers only to parag raph (1) of subsection ( a ) ” not “g rounds for removal under parag r aph (3) of 8 U. S

. C

. § 1227(a)”); see also Vasquez v. Holder
, 602 F .3d 100 3
, 1 0 1 1–12 (9th Cir. 2010) (“F irst, § [ 1227(a)(1)(H)] provides that ‘the provisions of this parag raph relating to the removal of aliens within the United States o n the g round that they were inadmissible at the time of admission as aliens desc r i b ed in the fraud provision
may be waived.’ ‘This parag

r aph’ refers to § [ 1227(a)(1)] ”) (emphasis in orig i nal, alterations omitted). Moreover, Tag g ar

was not deportable under § 1227(a)(1), the subparag raph that
sets out g rounds for inadmissibility

. Rather
, T a g g ar was determined to b e deportable u nder § 1 227(a)(3)(B )(iii), whi ch
pr o v i d e s for deportability based o n a c onviction under 15 U.S.C. § 1 546 for f

ailure to reg ister and fa l sification o f documents. Tag g ar is thus being deported because s he was convicted of falsifying doc uments, and not because she was inadmissible a t entry

. Accord i n gl y , § 1227(a)(1)(H)’s h a ng ing parag raph is n ot a p plicable to her case, a s it only allows the A ttorney General to w aive g r ounds o fT A G G A R V

. H O L D E R 9

inadmissibility which are a direct resu l t of acts of fraud a nd misrepresentation specified in 8 U.S.C. § 1182(a)(5)(A) and (7)(A). See § 1227(a)(1)(H)(i)(I I ). One of Tag g ar’s g rounds f o r removability cannot be waived by the discretio n a r y decision of the Attorney G e n e r a l

. Therefore, the B oard did
not err in determining that Tag g ar w as inelig ible for a w aiver of inadmissibility

.

P etition DENIED.