567 F. App'x 219
5th Cir.2014Background
- Glenda K. Gotora, a Zimbabwean national, was ordered removed in 2008 after admitting the allegations in her Notice to Appear.
- She filed three motions to reopen (2009, 2009, 2012) seeking asylum, withholding of removal, and CAT protection; earlier motions were denied as untimely/number-barred.
- Her third motion argued equitable tolling/exception to time-and-number bars based on prior counsel’s ineffective assistance and submitted country-condition reports showing ongoing political violence against MDC members.
- The BIA denied the third motion as time- and number-barred, finding procedural defects in her ineffective-assistance claim and no material change in country conditions.
- Gotora appealed; the Fifth Circuit reviews BIA denials of motions to reopen for abuse of discretion and factual findings for substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA erred by refusing equitable tolling/consideration of ineffective assistance of counsel | Gotora: prior counsel’s ineffective assistance excuses time/number limits and warrants reopening (sua sponte) | BIA: motion is time/number barred; procedural Lozada requirements not met; sua sponte reopening is discretionary | Dismissed for lack of jurisdiction to review BIA’s refusal to reopen sua sponte; even if reviewable, BIA did not err on Lozada compliance |
| Whether evidence showed a material change in country conditions since 2008 | Gotora: country reports and news evidence demonstrate escalation/continuation of political violence against MDC members since 2008 | BIA: reports show ongoing repression but no material change between 2008 merits hearing and 2012 motion | Denied — substantial evidence supports BIA conclusion that Gotora failed to show a material change and thus no exception to time/number bars |
| Whether the court has jurisdiction post-Kucana to review BIA’s refusal to reopen sua sponte | Gotora: Kucana allows review of BIA’s denial to reopen sua sponte | Government/BIA: Kucana did not decide reviewability of sua sponte reopenings; Fifth Circuit precedent precludes review | Court: Kucana does not alter Fifth Circuit precedent; lacks jurisdiction to review sua sponte reopening refusal |
| Whether Gotora should be given merits hearing despite procedural bars | Gotora: evidence of persecution and risk to U.S.-citizen child warrant reopening | BIA: procedural bars apply; discretion to reopen not exercised | Court: BIA did not abuse discretion in denial; notes BIA retains discretion to reopen sua sponte and may consider merits if it chooses |
Key Cases Cited
- Panjwani v. Gonzales, 401 F.3d 626 (5th Cir.) (standard of review for BIA motions to reopen)
- Ramos-Bonilla v. Mukasey, 543 F.3d 216 (5th Cir.) (equitable-tolling ineffective-assistance claim construed as request for sua sponte reopening; unreviewability)
- Joseph v. Holder, 720 F.3d 228 (5th Cir.) (applying Ramos-Bonilla on jurisdiction over sua sponte reopening)
- Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375 (5th Cir.) (panel cannot overturn prior panel precedent absent intervening change in law)
- Kucana v. Holder, 558 U.S. 233 (2010) (left open the question whether courts may review BIA’s sua sponte reopening decisions)
- Hernandez-Ortez v. Holder, 741 F.3d 644 (5th Cir.) (material-change standard for country-condition motions to reopen)
- Rodriguez-Manzano v. Holder, 666 F.3d 948 (5th Cir.) (continuing-conditions evidence that does not show material change is insufficient)
- Lara v. Trominski, 216 F.3d 487 (5th Cir.) (Lozada procedural requirements for ineffective-assistance claims)