509 F. App'x 505
6th Cir.2012Background
- Zein, a Lebanese citizen, entered the U.S. at San Ysidro in 2000 with others and was detained.
- The IJ charged Zein with falsely claiming U.S. citizenship and lacking valid entry documents; venue was later moved to Detroit after Zein admitted the charges.
- Zein pursued asylum and withholding of removal; the IJ found his testimony incredible and ordered removal to Lebanon in 2004.
- The BIA affirmed the removal order in 2005; Zein later filed a motion to reopen in 2011, more than five years after final decision.
- The motion to reopen alleged ineffective assistance of counsel by two attorneys and marriage to a U.S. citizen as grounds.
- The BIA denied the motion as untimely and for lack of Lozada-compliant proof; Zein appeals the denial only as to ineffectiveness of counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether equitable tolling excuses untimeliness | Zein contends ineffective counsel delayed filing. | BIA discretion supports denial; no due diligence shown. | No equitable tolling; untimely and lack of due diligence. |
| Whether Lozada compliance was required and met | Farhat's ineffectiveness supports reopening; Lozada not fully required for both attorneys. | Lozada compliance essential; failure forfeits ineffective-assistance claim. | Lozada compliance not met; claim against Farhat forfeited; no tolling based on Daman. |
| Whether Zein acted with due diligence after marriage ground | Marriage to a U.S. citizen triggers potential timely reopening. | Delay after marriage and later counsel undermines diligence. | Delay after marriage insufficient to show due diligence; no tolling. |
| Whether the BIA abused its discretion in denying reopening | Ineffective assistance warrants remand for reconsideration. | BIA properly denied as untimely and procedurally deficient under Lozada. | No abuse of discretion; petition denied. |
Key Cases Cited
- INS v. Doherty, 502 U.S. 314 (1992) (denotes general discouragement of motions to reopen)
- Mezo v. Holder, 615 F.3d 616 (6th Cir. 2010) (equitable tolling for ineffective assistance factors)
- Tapia-Martinez v. Gonzales, 482 F.3d 417 (6th Cir. 2007) (due diligence standard for tolling)
- Scorteanu v. INS, 339 F.3d 407 (6th Cir. 2003) (exceptional circumstances and tolling considerations)
- Barry v. Mukasey, 524 F.3d 721 (6th Cir. 2008) (diligence issues when delaying filing after counsel)