                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-3367

T HELMA L OPEZ F IGUERAS, et al.,
                                                      Petitioners,
                               v.

E RIC H. H OLDER, JR., Attorney General
of the United States,
                                                     Respondent.


                   Petition for Review of an Order
               of the Board of Immigration Appeals.
     Nos. A99-346-275, A99-346-276, A99-346-277 & A99-346-278


     A RGUED F EBRUARY 26, 2009—D ECIDED JULY 27, 2009




  Before B AUER, K ANNE, and SYKES, Circuit Judges.
  S YKES, Circuit Judge. Thelma Figueras, a native and
citizen of the Philippines, entered the United States in
2002 with her husband and two children. All four over-
stayed their visitors’ visas. In 2006 Figueras filed an
application to adjust her status to that of a lawful perma-
nent resident based on her employment as a registered
nurse. The Department of Homeland Security denied her
application and initiated removal proceedings. Figueras
2                                               No. 08-3367

tried to renew her application during the removal pro-
ceedings, but the immigration judge (“IJ”) held that she
had abandoned her application because she failed to
submit the required documents 14 days before her hear-
ing. In fact, Figueras’s attorney had filed a motion
for a continuance a month before the scheduled hearing
in order to obtain the documents establishing Figueras’s
eligibility to adjust status. The IJ, mistakenly believing
that the motion had been filed by an attorney who had
not entered an appearance in the case, disregarded the
motion. Rather, at the scheduled hearing on the merits, the
IJ declared the adjustment application abandoned and
ordered the petitioners removed.
  On appeal the Board of Immigration Appeals (“BIA”)
assumed that the IJ had abused his discretion in
declining to rule on the motion for the continuance.
However, it held that the error was harmless because
Figueras was ineligible for adjustment of status. In so
holding, the BIA failed to consider the additional
evidence of Figueras’s eligibility to adjust status that she
submitted on appeal—evidence that the IJ’s error had
effectively excluded from the record. Figueras petitioned
this court for review, arguing that the BIA violated her
right to a reasonable opportunity to present evidence of
her eligibility. We agree. Under 8 U.S.C. § 1229a(b)(4),
Figueras had a right to a reasonable opportunity to
present her evidence of eligibility for adjustment of
status. The BIA violated this right by refusing to either
remand the case to allow the IJ to consider her additional
evidence or ruling on the merits of her claim as a matter
of law. Accordingly, we grant the petition for review and
remand for further proceedings.
No. 08-3367                                               3

                      I. Background
  After overstaying her visitor’s visa by more than three
years, Thelma Figueras filed an application with the
Department of Homeland Security (“DHS”) in 2006 to
adjust her status based on her employment as a
registered nurse. See 8 U.S.C. § 1255(a). She named her
husband, Danilo Figueras, and two children as derivative
beneficiaries of her application. DHS denied Figueras’s
application in 2007 for three reasons: (1) she failed to
submit her nursing credentials in time; (2) she was ineligi-
ble for adjustment of status because she had overstayed
her visa, see 8 U.S.C. § 1255(c); and (3) she could not
escape the consequences of her illegal status by invoking
8 U.S.C. § 1255(i) because she was not the beneficiary of
a visa petition filed before April 30, 2001.1 DHS
then initiated removal proceedings against each of the
petitioners.
   At the removal hearing before the IJ, the Figuerases’
attorney requested additional time to explore any re-
maining avenues of relief. Specifically, he noted that the
petitioners may be eligible for adjustment of status
through Danilo Figueras, who was listed on an I-130 form
filed by his grandfather on behalf of his father and ap-
proved in 1977.2 The IJ granted the Figuerases a three-


1
  Her employer did not file a visa petition on her behalf
until March 2006.
2
  The record appears to show that Aquilino Figueras, Mr.
Figueras’s grandfather, is a naturalized U.S. citizen. After
                                              (continued...)
4                                                  No. 08-3367

month continuance and set the merits hearing for August
22, 2007. He required the petitioners to submit their
adjustment applications, any supporting documents, and
their merits brief by August 8, 2007. On July 20 the
Figuerases filed a motion for a continuance, requesting
more time to collect the necessary documents. The IJ did
not rule on the motion because he mistakenly thought it
had been filed by an attorney who had not made an
appearance in the case. Accordingly, by the time of
the merits hearing, the Figuerases had not produced
their adjustment applications or any supporting docu-
mentation. The IJ held that they had abandoned their
applications and ordered them removed.
  On appeal, the BIA affirmed the IJ’s order of removal,
but on different grounds. It assumed without deciding
that the IJ had abused his discretion in declining to rule
on the Figuerases’ motion for a continuance. However,



2
  (...continued)
becoming a citizen, Aquilino filed an I-130 form (a petition for
an alien relative) on behalf of Lauro Figueras, his married son
who still lived in the Philippines. The I-130 also listed Danilo
Figueras, Lauro’s minor and then-unmarried son, as a benefi-
ciary. The petition was approved in 1977. Lauro immigrated to
the United States and soon thereafter became a lawful perma-
nent resident. Danilo remained in the Philippines and married
Thelma before coming to the United States in 2002 on a
visitor’s visa. Thelma Figueras argues that she is eligible for
adjustment of status through her husband’s “grandfathered”
status, but does not further explain how her husband’s
status might confer eligibility on her and her children.
No. 08-3367                                              5

the BIA held that the error was harmless because
Thelma Figueras, the principal applicant, had overstayed
her visa and was thus ineligible to adjust her status. See
8 U.S.C. § 1255(c) (aliens who fail to maintain a continu-
ously lawful status in the United States are not eligible
for adjustment of status). Furthermore, the BIA con-
cluded she did not qualify for adjustment under 8 U.S.C.
§ 1255(i), which waives any period of illegal stay in the
United States if a visa petition was filed on behalf of the
petitioner on or before April 30, 2001, because her em-
ployer did not file a visa petition on her behalf until
2006. The Board noted Figueras’s argument that she
might be eligible to adjust status through her husband’s
alleged grandfathered status but refused to consider
her evidence on this point because it had not been sub-
mitted originally to the IJ. The BIA then dismissed the
appeal, and Figueras petitioned for review.


                     II. Discussion
  Figueras first challenges the IJ’s refusal to rule on her
motion for a continuance, arguing that the refusal consti-
tuted an abuse of discretion. The focus of this argument,
however, is misplaced. The BIA subsequently issued an
independent decision that assumed error on the IJ’s
part and went on to decide the merits of Figueras’s ap-
plication. When the BIA issues an independent opinion
that does not merely adopt or supplement the opinion
6                                                     No. 08-3367

of the IJ, we review the BIA’s superceding opinion only.3
Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007).
  Next, Figueras argues that the BIA violated her due-
process right to a fair hearing by refusing to consider
her additional evidence on appeal. We have repeatedly
stated, however, that statutory claims should come
before constitutional claims. Aliens have a statutory right
to a reasonable opportunity to present evidence in their
favor, 8 U.S.C. § 1229a(b)(4), and proceedings which
comply with statutory and regulatory requirements also
satisfy due process. Rehman v. Gonzales, 441 F.3d 506, 508
(7th Cir. 2006). “We have cautioned against ‘leading with


3
   We have previously held that continuance decisions fall
within the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B)(ii). Iqbal
Ali v. Gonzales, 502 F.3d 659, 663-64 (7th Cir. 2007). Figueras
briefly argues that her case comes under the rule laid out in
Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004). Subhan stands
for the proposition that we can review the denial of a continu-
ance motion when that denial effectively nullifies the alien’s
statutory opportunity to adjust status. This jurisdictional issue
simply is not implicated here. As we have noted, rather than
affirm the IJ’s decision to deny the continuance, the BIA as-
sumed this denial was error and addressed the merits of
Figueras’s application, albeit without addressing her addi-
tional evidence. Subhan does not apply in this situation. See,
e.g., Garcia-Casiano v. Mukasey, 258 F. App’x. 30, 32 (7th Cir.
2007) (holding that a case does not fall within the Subhan
exception if the BIA acknowledges error by the IJ and decides
the case on different grounds). That is, we have the merits—not
the propriety of a continuance decision—before us on this
petition for review.
No. 08-3367                                               7

an open-ended due process argument’ and advised that
‘[a]liens should stick with claims based on the statutes and
regulations unless they believe that one of these rules
violated the Constitution or that lacunae in the rules have
been filled with defective procedures.’ ” Pronsivakulchai
v. Gonzales, 461 F.3d 903, 907 (7th Cir. 2006) (quoting
Rehman, 441 F.3d at 509). The proper inquiry—and the
one we undertake here—is whether the BIA violated
Figueras’s statutory right to a reasonable opportunity
to present evidence in her removal proceeding. See 8 U.S.C.
§ 1229a(b)(4).
  The question whether the BIA violated this statutory
right is a question of law that we have jurisdiction to
review. 8 U.S.C. § 1252(a)(2)(D). Here, the BIA dismissed
Figueras’s appeal instead of either remanding the case to
the IJ to consider her additional evidence of eligibility or
ruling on her alternative theory as a matter of law. The
BIA justified its dismissal by stating that Figueras did not
present this evidence to the IJ and that the applicable
regulations bar the BIA from considering new evidence
on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv).
  It is true that the relevant regulations prohibit the
BIA from engaging in fact-finding on appeal, but they
also give the Board authority to remand a case to the IJ if
additional fact-finding is necessary. Id. Here, the BIA
began its analysis by assuming that the IJ had abused
his discretion by refusing to consider Figueras’s motion
for a continuance. Figueras needed the extra time to
gather evidence of the alternative ground for her
eligibility to adjust status. Having assumed that the IJ
8                                               No. 08-3367

had wrongfully refused to give Figueras more time to
collect this documentation, the BIA could not then fault
Figueras for failing to submit all her evidence to the IJ
in the first place. Rather than simply dismissing the
appeal, the BIA should have either remanded the case to
allow the IJ to consider the additional evidence or ad-
dressed her alternative ground for eligibility as a matter
of law.
  The government argues that remand was inappro-
priate because Figueras never filed a motion to remand or
reopen the proceedings before the IJ. See 8 C.F.R.
§ 1003.1(d)(3)(iv) (a party requesting additional fact-
finding “must file a motion for remand”) (emphasis
added). As we have noted, however, the BIA also has the
authority to remand a case sua sponte if further fact-
finding is necessary. Id. (“If further factfinding is needed
in a particular case, the Board may remand the pro-
ceeding to the immigration judge . . . .”). The proper
remedy for the assumed error was to remand the case
to permit Figueras to present her evidence to the IJ in
the first instance. Alternatively, the BIA could have
addressed, as a matter of law, Figueras’s adjustment
application under her proposed alternative theory of
eligibility that hinged on Danilo Figueras’s status. The
BIA’s failure to do either was erroneous.
  The government also argues that Figueras forfeited her
argument concerning her eligibility to adjust through
Danilo Figueras by failing to develop it sufficiently. It is
true that Figueras gave this argument rather cursory
treatment in the proceedings before the BIA, as well as
No. 08-3367                                                   9

before this court. She has not fully explained how she is
eligible based on her husband’s “grandfathered” benefi-
ciary status. However, the BIA dismissed Figueras’s
appeal not because she had failed to develop this argu-
ment on appeal but because she had not produced evi-
dence to support it before the IJ.4 That she did not do so
was attributable to the IJ’s error in disregarding her
motion for a continuance and deeming her adjustment
application abandoned. Accordingly, we think the
decision to accept or reject Figueras’s alternative theory
that she and her family are eligible for adjustment of
status should be made by the agency in the first instance,
on an appropriate record.
  In addition to showing error, however, Figueras must
also show prejudice. Rehman, 441 F.3d at 509. As our
discussion thus far makes clear, Figueras was obviously
hindered by the BIA’s refusal to either remand the case
to allow the IJ to consider her additional evidence of
eligibility or rule on her alternative theory as a matter



4
   The BIA noted Figueras’s limited development of her alterna-
tive argument but did not decide the appeal on this basis.
Rather, at the end of its opinion, the BIA wrote: “Moreover, the
respondents implicitly argue, without any citation to supporting
legal authority, that a lead applicant for adjustment of status,
who is otherwise ineligible for adjustment . . . may become
eligible . . . because a derivative applicant for adjustment of
status is allegedly the derivative beneficiary of an adjustment
application filed on his father’s behalf.” (Emphasis added.)
The BIA then dismissed the appeal without further discussion
or analysis of the issue.
10                                              No. 08-3367

of law. As it stands, it is unclear whether Figueras’s
additional evidence would establish to the agency’s
satisfaction that she is eligible for adjustment of status.
However, once the BIA assumed error on the part of the
IJ in disregarding the motion for a continuance, Figueras
was entitled to have either the IJ or the BIA assess her
alternative theory of eligibility on the merits. If the IJ
had received and considered her additional evidence, he
may have found her eligible for adjustment of status, and
the rest of the family along with her. See Boyanivskyy v.
Gonzales, 450 F.3d 286, 294 (7th Cir. 2006). Likewise, if the
BIA had considered her proffered alternative basis for
eligibility, it may have held that she had a viable theory
and remanded to the IJ for further fact-finding. True,
the BIA might have determined that the additional evi-
dence was insufficient, as a matter of law, to render
Figueras eligible for adjustment of status. Either way,
Figueras was entitled to have either the IJ or the BIA
rule on the merits of her alternative theory of adjustment
eligibility.
  Accordingly, we G RANT the petition for review,
V ACATE the BIA’s decision, and R EMAND for further
proceedings.




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