Husni El-Gazawy v. Eric Holder, Jr.
690 F.3d 852
| 7th Cir. | 2012Background
- El-Gazawy, a Jordanian citizen, overstayed entry and failed NSEERS registration, leading to a DHS Notice to Appear in 2006 seeking removal.
- He admitted removability in 2007 while pursuing cancellation of removal (8 U.S.C. § 1229b) and voluntary departure (8 U.S.C. § 1229c).
- A new IJ in 2009 set a staggered schedule; he was warned that failure to file fingerprints timely could abandon cancellation, and he eventually did not timely file required documents.
- The IJ deemed the cancellation application abandoned due to the late filing, granted voluntary departure, and advised of appeal rights; DHS did not receive timely filings before the hearing.
- The BIA dismissed El-Gazawy’s appeal in 2010 for waiver/abandonment, and denied relief for lack of prima facie eligibility and for failure to post a $500 bond for voluntary departure.
- El-Gazawy sought relief via First and Second Motions to Reconsider and a Lozada-based motion to reopen; the BIA denied all motions, including a late-filed Second Motion to Reconsider in 2011.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Second Motion to Reconsider is reviewable | El-Gazawy asserts exhaustion and reviewability of the Second Motion to Reconsider. | Board contends the issue was not properly exhausted and the motion was not reviewable. | Issue not reviewable; exhaustion not satisfied; court defers to BIA. |
| Whether the Motion to Reopen was timely | El-Gazawy argues the motion is timely or equitably tolled due to ineffective assistance. | Board held the motion untimely under 8 U.S.C. § 1229a(c)(7)(C)(i). | Motion to reopen untimely; final order date governs 90-day deadline. |
| Whether equitable tolling applies for ineffective assistance claims | Lozada-based due diligence and tolling should extend the deadline. | No due diligence shown; ineffective assistance not proven to prejudice outcome. | Equitable tolling denied; no prejudice shown. |
| Whether El-Gazawy demonstrated prejudice to obtain cancellation of removal | Ineffective assistance prevented presentation of evidence to show exceptional hardship. | No specific evidence of what would have been presented; hardship not shown. | No prejudice shown; standard not met. |
Key Cases Cited
- Stone v. INS, 514 U.S. 386 (U.S. 1995) (finality of removal not affected by motion to reconsider)
- Muratoski v. Holder, 622 F.3d 824 (7th Cir. 2010) (motion to reconsider does not toll review)
- Rehman v. Gonzales, 441 F.3d 506 (7th Cir. 2006) (no tolling of review for reconsideration)
- Asere v. Gonzales, 439 F.3d 378 (7th Cir. 2006) (administrative remedies exhaustion considerations)
- Sarmiento v. Holder, 680 F.3d 799 (7th Cir. 2012) (final order date governs 90-day reopening period)
- Lozada, 19 I. & N. Dec. 637 (BIA 1988) (ineffective assistance standards for Lozada claim)
- Johnson v. Gonzales, 478 F.3d 795 (7th Cir. 2007) (due diligence standard for equitable tolling)
- Patel v. Gonzales, 442 F.3d 1011 (7th Cir. 2006) (equitable tolling considerations in immigration relief)
- Raphael v. Mukasey, 533 F.3d 521 (7th Cir. 2008) (prejudice requires showing potential impact on outcome)
- Hamid v. Gonzales, 417 F.3d 642 (7th Cir. 2005) (prejudice analysis in due process context)
- Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) (ineffective assistance standard and disclosure requirements)