Tatiana Urievna Deryabina v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 25, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 11-10077; 11-14209
Non-Argument Calendar
________________________
Agency No. A094-783-253
TATIANA URIEVNA DERYABINA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 25, 2012)
Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:

-- 1 of 4 --

Tatiana Urievna Deryabina, a native and citizen of Russia, petitions for
review of the decisions of the Board of Immigration Appeals to treat as abandoned
Deryabina’s application for asylum under the Immigration and Nationality Act,
8 U.S.C. § 1158, and to deny Deryabina’s motion to reopen, id. § 1229a(c)(7).
The Board agreed with the finding of the immigration judge that Deryabina
abandoned her application for asylum by failing to file her fingerprint notice. We
deny Deryabina’s petitions.
Immigration judges may dismiss applications for relief from removal if
applicants fail to comply with requirements to submit biometrical information. 8
C.F.R. §§ 1003.47(c), 1208.10. Under Section 1003.47(c), the “[f]ailure to file
necessary documentation and comply with the requirements to provide biometrics
. . . in conformity with the applicable regulations, the instructions to the
applications, the biometrics notice, and instructions provided by [the Department
of Homeland Security], within the time allowed . . . constitutes abandonment of
the application.” Section 1003.47(c) directs that “the immigration judge may enter
an appropriate order dismissing the application,” but the provision permits the
judge to reinstate the application if “the applicant demonstrates that [the] failure
[to file the notice] was the result of good cause.” Id.; see id. § 1208.10 (“Failure
to comply with processing requirements for biometrics . . . within the time allowed
2

-- 2 of 4 --

will result in dismissal of the application, unless the applicant demonstrates that
such failure was the result of good cause.”); see also id. § 1208.14(a) (“In no case
shall an immigration judge grant asylum without compliance with the
requirements of [section] 1003.47 concerning identity, law enforcement, or
security investigations or examinations.”).
Substantial evidence supports the decision of the Board that Deryabina
abandoned her application for asylum. During the initial removal hearing, the
immigration judge instructed Deryabina to “get your fingerprints done for this
application by the date on [the] notice” provided by the Department. The
immigration judge stressed that it was “very, very important to get the fingerprints
done,” and the immigration judge warned Deryabina that, “[i]f you do not get your
fingerprints done, the application is abandoned.” Deryabina failed to file the
fingerprint notice and, when she appeared before the immigration judge more than
a year later, she argued that she had “no recollection of getting the actual notice.”
The immigration judge reviewed the audio recording of the initial removal hearing
and found that the Department had provided Deryabina a fingerprint notice.
Deryabina did not challenge that finding. The Board was entitled to find that
Deryabina had failed to provide good cause to excuse her noncompliance, see
Juarez v. Holder, 599 F.3d 560, 565 (7th Cir. 2010), and to affirm the denial of
3

-- 3 of 4 --

Deryabina’s related request for a continuance, see 8 C.F.R. § 1003.29 (an
immigration judge “may grant a motion for continuance for good cause shown”).
Deryabina argues, for the first time on appeal, that the immigration judge
was biased against her, but we lack jurisdiction to consider that argument.
“[A]bsent a cognizable excuse or exception, ‘we lack jurisdiction to consider
claims that have not been raised before the [Board].’” Amaya-Artunduaga v. U.S.
Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (quoting Sundar v. INS, 328
F.3d 1320, 1323 (11th Cir. 2003)).
The Board also did not abuse its discretion when it later denied Deryabina’s
motion to reopen. Deryabina argues that her attorney acted ineffectively by failing
to remind her about the fingerprint notice, but counsel’s representation was not
“‘deficient to the point that it impinged on the fundamental fairness’” of
Deryabina’s removal proceedings. Ali v. U.S. Att’y Gen., 643 F.3d 1324, 1329
(11th Cir. 2011) (quoting Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th
Cir. 1999)). The Department provided Deryabina a fingerprint notice, and she
knew that she had to file it.
We DENY Deryabina’s petitions.
4

-- 4 of 4 --