Garcia v. Lynch, 821 F.3d 178

José García, a Dominican national, became a conditional LPR by marriage in 1996; USCIS denied an I-751 in 1998 for suspected marriage fraud and his conditional status was terminated.
An IJ entered an in‑absentia removal order on May 20, 2009 after García missed his hearing; a motion to reopen was filed by counsel but later denied by the IJ for lack of exceptional circumstances.
García appealed to the BIA but then withdrew the appeal and requested reinstatement of the removal order; he was removed to the Dominican Republic on July 10, 2009.
García illegally reentered the U.S. in 2012 and was criminally charged; in August 2013 he filed a second motion to reopen alleging ineffective assistance of counsel (IAC).
The IJ denied the second motion as time and number barred and for failure to meet Lozada requirements; the BIA affirmed and found García failed to show prima facie eligibility for relief. A subsequent motion to reconsider was denied on May 15, 2015 and García sought review of that denial.
The First Circuit held it lacked jurisdiction to review the earlier (March 12, 2015) denial of the motion to reopen because García did not timely petition for review, and otherwise denied relief on the reconsideration denial.

Issue	García's Argument	Lynch's Argument	Held
Jurisdiction/timeliness of review of denial of 2nd motion to reopen	The court should review the denial of the second motion to reopen	Petition for review was untimely as García did not file within 30 days of BIA decision	Dismissed for lack of jurisdiction as to the March 12, 2015 denial (untimely review)
Validity of BIA's insistence on Lozada compliance for IAC claim	Lozada should not apply because IAC is plain on the face of the record, excusing formal Lozada compliance	BIA properly required Lozada compliance and did not abuse discretion	BIA did not abuse discretion; Lozada requirements must be met and no plain‑record exception applies in this circuit
Equitable tolling and treating second motion as first	Equitable tolling should excuse time/number bars and let the court treat second motion as timely first motion	Equitable tolling argument was not raised before the BIA and is thus unexhausted	Argument is unexhausted and waived; court refuses to consider it
Abuse of discretion in denial of reconsideration	BIA erred in denying reconsideration by requiring Lozada and ignoring equitable tolling	Denial was reasonable: García failed Lozada and raised no overlooked legal error; no abuse of discretion	Denial of motion to reconsider affirmed (no abuse of discretion)

Hurtado v. Lynch, 810 F.3d 91 (1st Cir.) (timely filing requirements for judicial review of BIA decisions)
Zeng v. Gonzales, 436 F.3d 26 (1st Cir.) (rejecting a facial‑record exception to Lozada requirements)
Saakian v. INS, 252 F.3d 21 (1st Cir.) (BIA must not apply Lozada arbitrarily)
Shah v. Holder, 758 F.3d 32 (1st Cir.) (administrative exhaustion bars arguments not raised before the BIA)
DaCosta v. Gonzales, 449 F.3d 45 (1st Cir.) (refusal to consider equitable tolling argument not presented to the BIA)
Martinez-Lopez v. Holder, 704 F.3d 169 (1st Cir.) (standard of review for denial of motions to reconsider)