Manguriu v. Garland

86 F.4th 491

Joel Njoroge MANGURIU, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 22-1220

United States Court of Appeals, First Circuit

November 16, 2023

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Bernal Peter Ojeda on brief for petitioner.

Brian Boynton, Assistant Attorney General, Shelley R. Goad, Assistant Director, and Tim Ramnitz, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.

Before Gelpí, Lynch, and Thompson, Circuit Judges.

THOMPSON, Circuit Judge.

Petitioner Joel Njoroge Manguriu, a Kenyan national, asks this court to review the decisions of an immigration judge and the Board of Immigration Appeals regarding whether U.S. Citizenship and Immigration Services properly served him with the notice of its intent to revoke his visa petition (underpinning his request for adjustment of status) and the official revocation that followed. In Manguriu's telling, the notice of intent to revoke his visa petition was legally insufficient because notice was not served directly upon him, rather it went out only to an individual he says is a "former" attorney. The government submits, inter alia, that service upon the attorney of record in the visa petition proceedings was proper based on the applicable regulations and relevant policies.

For reasons we'll soon explain, we must dismiss the petition for review.

Background

Manguriu's path through our country's immigration system has been long and winding. When Manguriu's file first came before this court, "[t]he relevant facts [were] easily assembled." Manguriu v. Lynch, 794 F.3d 119, 120 (1st Cir. 2015) (hereinafter "Manguriu I"). Given the passage of time, the various proceedings that played out in the interim, and the issue raised now on appeal, we havemore background to lay out this time around. While we need not detail the totality of Manguriu's dense history before various immigration agencies and entities in order to inform and explain today's outcome, it is necessary to provide a somewhat comprehensive setup to appreciate the full picture of Manguriu's situation. (A heads-up to the reader -- make a flow chart.) We do so next, drawing the relevant facts from the administrative record. See Dor v. Garland, 46 F.4th 38, 42 (1st Cir. 2022).

Pre-Remand Proceedings

Manguriu entered the U.S. back in 1999 on a student visa, which he overstayed. He married a U.S. citizen in 2005 and she later filed an I-130 visa petition (seeking to classify Manguriu as a spouse of a U.S. citizen) in July of 2006. Based on that petition, Manguriu applied for adjustment of status.¹ But U.S. Citizenship and Immigration Services (USCIS)² denied the I-130 petition based on marriage fraud, and that threw a wrench into Manguriu's pursuit of adjustment of status. When the Department of Homeland Security (DHS) got removal proceedings underway in 2009, Manguriu sought relief from removal under the Violence Against Women Act (VAWA), 8 U.S.C. § 1154(a)(1)(A)(iii), claiming he was the spouse of an abusive U.S. citizen and filing, through his attorney, Richard Cabelus, an I-360 visa petition with USCIS to that effect in January 2010.

USCIS approved Manguriu's I-360 petition in December 2010, and Manguriu then used that approved petition to ask an immigration judge (IJ) to adjust his status. Making an adverse credibility finding and citing other reasons not relevant here, the IJ denied Manguriu's adjustment-of-status petition and ordered him removed in March 2012. Manguriu appealed, but the Board of Immigration Appeals (BIA) agreed with the IJ's decision and dismissed Manguriu's appeal in February 2014. Undeterred, Manguriu filed the Manguriu I petition for review, arguing that the agency committed legal error in denying his adjustment-of-status claim. 794 F.3d at 121.

That brings us to the part of Manguriu's procedural history that is at the root of his arguments before us now. In the wake of his petition to this court in which he challenged the BIA's affirmance of the IJ's decision denying his requested adjustment of status -- but before the Manguriu I panel rendered any decision on it -- USCIS sent out an April 24, 2014 notice of its intent to revoke its December 2010 approval of Manguriu's I-360 petition on the basis of his questionable credibility (laying out its own reasoning on this issue and also citing the IJ's opinion), which included an invitation to submit evidence that would rebut the cited grounds for revocation. The April 24 USCIS notice was sent by mail solely to the address for Cabelus, the attorney who filed Manguriu's I-360 back in January 2010. Specifically, it was addressed to "Joel Njoroge Manguriu, C/O Richard Cabelus Esq, 340 Main Street Suite 712, Worcester MA 01608." USCIS got no response. On June 20, 2014, USCIS revoked its approval of the visa petition.

Since then, Manguriu has maintained he didn't receive any notice whatsoever of USCIS's intent to revoke -- Cabelus was not his attorney at the time the notice went out, he says, and no notice was sent to him personally. He argued as much in the reply brief he filed in Manguriu I, urging (in response to the government's argument that there was no valid visa petition upon which Manguriu could adjust status) that he lacked proper notice of USCIS's intent to revoke. Id. at 121, 122. In view of that argument, the Manguriu I court, taking judicial notice of USCIS's revocation decision, id. at 121, and the "tenebrous" record surrounding the issue, opted for a remand, id. at 122 ("The petitioner's claim that the revocation is ineffective for want of proper notice is sufficient (though barely) to raise a factual question requiring remand."). It did so with instructions that the agency "make due inquiry and determine, among other things, whether the revocation of the VAWA [(I-360)] petition was lawfully accomplished and, if so, whether the BIA decision that is the subject of this petition for judicial review is now moot." Id.³

Post-Remand Proceedings

Faced with this court's mandate, the BIA remanded to an IJ for further fact-finding on the notice question. At a January 2016 hearing, the IJ administratively closed (sua sponte) the proceedings to allow then-pro se Manguriu time to get a lawyer who could then help him undertake further action on his I-360 self-petition before USCIS -- and the IJ instructed Manguriu to move to re-calendar the proceedings once he got a response from USCIS.⁴

Time -- and various continuances and other wranglings -- marched on.⁵ In March 2018, a counseled Manguriu appeared before the IJ. At that hearing, noting the case's "rather unusual posture" and mindful of this court's mandate and the BIA's remand to her, the IJ, at the government's request, queried whether she had jurisdiction to delve into whether Manguriu had received proper notice, the point being that she had no authority over USCIS and, if she found insufficient notice, she would be powerless to order USCIS to reopen the I-360 proceedings. Purportedly to sidestep this dilemma and pursuant to this court's order, the parties agreed that the IJ should engage in fact-finding to consider the notice-sufficiency question, and they asked her to hold a hearing for that purpose.

Manguriu and his counsel appeared before the IJ in August 2018 for that evidentiary and merits hearing. The IJ got things started by setting the stage: USCIS served the 2014 notice and revocation decision on Cabelus, but did Cabelus still represent Manguriu in his I-360 proceedings at the time of service, or had he obtained new counsel? The government represented that Cabelus never withdrew from representing Manguriu in his I-360 proceedings, and no other counsel had ever entered an appearance in these proceedings -- certainly Manguriu had other counsel, such as attorney Jamie Jasso in Manguriu I, but when it came to representation before USCIS, Cabelus was the only attorney of record.

For his part, Manguriu testified he hired the Cambridge Lawyers Group to help him with his I-360 before USCIS and his adjustment of status, working with Cabelus and another attorney in that office, Oneyma Kamalu. After the BIA's 2014 decision, Manguriu testified, he had no contact with Cabelus or Kamalu; Jasso represented him in his Manguriu I petition for review, and Jasso never received notice of USCIS's notice of intent to revoke and revocation decision. Manguriu stated that, had he received notice, he would have responded. When the government asked when Cabelus and Kamalu stopped representing him, Manguriu answered that they stopped representing him after the BIA's February 2014 decision. When the government pressed Manguriu as to whether he'd asked Cabelus and Kamalu to withdraw, he said no; when the government queried whether (to his knowledge) either of those attorneys had filed a request to withdraw, Manguriu said he didn't "have any . . . knowledge of that."

The IJ wrestled with what she'd heard: "[n]otice to counsel is notice to [Manguriu]"; "that [counsel] didn't notify [Manguriu] isn't the [g]overnment's fault"; "[b]ut [Manguriu] didn't have an opportunity to participate because his lawyers didn't tell him about the proceedings . . . I don't know what happened there"; "I mean there is a claim perhaps for ineffective assistance," "[b]ut . . . is that the practical solution?"; and "[a]s a legal matter, . . . notice went to [Manguriu] through counsel. It was proper. . . . [T]here's nothing I can do." The IJ asked, "[W]here does that leave us?"

The government staked out the position that the record and Manguriu's testimony supported the conclusion that Cabelus was Manguriu's counsel of record before USCIS at the time of the notice of intent to revoke and the revocation decision and, therefore, USCIS properly served these documents on Cabelus. The government noted that failure by counsel to inform Manguriu of USCIS's notice and decision might amount to an ineffective assistance of counsel claim, but it had no...