Bead v. Holder, Jr.
2013 U.S. App. LEXIS 420
| 1st Cir. | 2013Background
- Bead is a Liberian national who entered the U.S. without inspection and filed for asylum, withholding of removal, and CAT protection in 2003.
- An IJ ordered removal in 2007 for abandonment of his asylum application due to Bead’s failure to provide biometric/biographical information to DHS; Bead did not appeal.
- Bead moved to reopen in 2010 alleging ineffective assistance of prior counsel, claiming failure to submit biometric data and to notify him of the removal order.
- The IJ denied the motion to reopen as untimely under 8 C.F.R. § 1003.23(b)(1); the IJ also considered whether equitable tolling could apply.
- The BIA affirmed, holding Bead failed to show due diligence under equitable tolling and that the motion to reopen was untimely, even if tolling applied.
- Bead petitions for review; arguments about Lozada, good-cause exceptions, and due-process were not properly before the court due to exhaustion and scope limitations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the motion to reopen under §1003.23(b)(1). | Bead contends tolling or exceptions should render timely. | DHS/BIA held untimely under the default 90-day rule. | Untimely under §1003.23(b)(1). |
| Whether equitable tolling applies in immigration proceedings. | Bead argues exceptional circumstances warrant tolling. | Diligence shown is lacking; tolling not warranted. | Equitable tolling not demonstrated; BIA proper to deny. |
| Exhaustion of certain arguments (Lozada, good-cause, due process). | Bead raised these arguments on appeal. | Arguments not properly developed before the BIA; review barred. | Arguments not before the court due to exhaustion. |
| Jurisdiction to review the IJ's February 2007 dismissal. | Bead seeks review of dismissal. | No jurisdiction since Bead did not appeal to the BIA. | No jurisdiction to review that order. |
Key Cases Cited
- Kucana v. Holder, 130 S. Ct. 827 (2010) (broad discretionary standard for motions to reopen; review is for abuse of discretion)
- Dada v. Mukasey, 554 U.S. 1 (2008) (moots the standard for safeguarding dispositions in immigration proceedings)
- INS v. Doherty, 502 U.S. 314 (1992) (abuse-of-discretion review of BIA decisions on reopening)
- Nascimento v. Mukasey, 549 F.3d 12 (1st Cir. 2008) (equitable tolling in immigration context; diligence and extraordinary circumstances)
- Neves v. Holder, 613 F.3d 30 (1st Cir. 2010) (test for equitable tolling: diligence and extraordinary circumstance)
- Pace v. DiGuglielmo, 544 U.S. 408 (2005) (standard for equitable tolling—diligence and extraordinary circumstance)
- Jobe v. INS, 238 F.3d 96 (1st Cir. 2001) (burden on petitioner to show entitlement to tolling; gaps must be filled)
- Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) ( Lozada rule about counsel's ineffective assistance and related procedures)
- Lozada-related Escobar-Grijalva v. INS, 206 F.3d 1331 (9th Cir.) (interpretations of Lozada's applicability (as discussed in context))