Ignacio Abarca-Martinez v. Jefferson Sessions III

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued April 24, 2018 Decided May 24, 2018 Before WILLIAM J. BAUER, Circuit Judge FRANK H. EASTERBROOK, Circuit Judge MICHAEL S. KANNE, Circuit Judge No. 17-3097 IGNACIO ABARCA-MARTINEZ, Petition for Review of an Order of the Petitioner, Board of Immigration Appeals. v. No. A200-777-811 JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent. ORDER Ignacio Abarca-Martinez, a 44 year-old Mexican citizen, petitions for review of the denial of his motion to reopen proceedings on his application for cancellation of removal—an application that the Immigration Judge deemed abandoned after his attorney failed to submit his application or fingerprints on time. Abarca-Martinez moved to reopen five years later based on ineffective assistance of counsel, but the IJ denied the motion as untimely, and the Board of Immigration Appeals affirmed. Abarca-Martinez argues that the Board erred by not excusing the untimeliness. We deny the petition because Abarca-Martinez has not displayed due diligence. No. 17-3097 Page 2 Ignacio Abarca-Martinez entered the United States without authorization in 1994. He is married to a Mexican citizen, and they have four U.S.-citizen daughters. In 2010, Abarca-Martinez came to the attention of the immigration authorities and was charged as deportable for being present in the United States without being admitted or paroled, 8 U.S.C. § 1182(a)(6)(A)(i). He contacted Alicia Navarette, who advertises “immigration services” but is not an attorney. Navarette, however, introduced Abarca-Martinez to attorney Sarah Schmeiser. Abarca-Martinez retained Schmeiser, but since she did not speak Spanish, Abarca-Martinez communicated with her through Navarette, who attended all of their meetings and responded to Abarca-Martinez’s phone calls. At his hearing before Immigration Judge Cuevas in 2011, Schmeiser said that she intended to apply for cancellation of removal on Abarca-Martinez’s behalf. The IJ set a scheduling order and required Abarca-Martinez to attend a biometrics appointment to have his fingerprints taken and to submit his application before the next hearing. Schmeiser, through Navarette, assured Abarca-Martinez that she would set up his fingerprinting appointment. Abarca-Martinez said in an affidavit that he “follow[ed] up,” and Navarette assured him that Schmeiser was handling everything. The second hearing, which took place in April 2012, culminated in the rejection of his application for cancellation of removal. There is no transcript available, but the parties agree that Schmeiser filed the application late, waiting until the hearing to submit it. The IJ rejected the filing as late and said that he considered the application abandoned because Abarca-Martinez did not complete his fingerprinting before the hearing. Even though Schmeiser admitted fault for the untimely filing and the failure to complete the necessary biometric checks, IJ Cuevas did not excuse the lateness. He deemed the application abandoned, ordered Abarca-Martinez removed, and said that he could appeal. Abarca-Martinez says that he did not understand what happened at the hearing because Schmeiser’s admission of error was not translated into Spanish. After the hearing, he spoke ...

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