Juan Perez-Pablo v. U.S. Attorney General
684 F. App'x 877
| 11th Cir. | 2017Background
- Five petitioners (Perez-Pablo and family members) were ordered removed in absentia after failing to appear at a September 14, 2004 removal hearing; they do not dispute receipt of notice or the order.
- Petitioners moved to reopen the in absentia removal on September 25, 2015 (over 11 years later), asserting a 2004 hurricane prevented appearance and their counsel instructed them to avoid the case; they submitted affidavits and an article about the hurricane.
- The Immigration Judge (IJ) denied the motion to reopen and declined to equitably toll the 180-day statutory filing deadline; the Board of Immigration Appeals (BIA) affirmed, finding lack of due diligence dispositive.
- Petitioners argued the BIA abused its discretion by (1) refusing to reopen despite extraordinary circumstances (hurricane) and (2) declining to equitably toll because they had pursued their rights diligently and suffered ineffective assistance of counsel.
- The BIA relied on petitioners’ own sworn statements that, after consulting counsel in late September 2004, they avoided contacting the immigration court or other counsel until 2014 out of fear of deportation; the BIA concluded they lacked diligence required for equitable tolling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion by denying motion to reopen an in absentia removal | Petitioners: hurricane and counsel instructions prevented attendance; affidavits show extraordinary circumstances | Government: petitioners received notice and did not timely move; motion untimely and merits insufficient without tolling | Denied—BIA did not abuse discretion; motion untimely and equitable tolling not established |
| Whether equitable tolling of the 180-day deadline is warranted | Petitioners: pursued rights diligently after hurricane and were impaired by attorney misconduct and storm wreckage | Government: petitioners failed to pursue their rights diligently for years (no efforts until 2014) | Denied—petitioners failed to show diligence required for equitable tolling |
| Whether IJ/BIA erred in applying Matter of Lozada for ineffective-assistance claim | Petitioners: IJ’s summary Lozada finding was erroneous; ineffective assistance excused delay | Government: BIA did not rely on Lozada finding and treated diligence as dispositive | Not reached—BIA resolved case on diligence; no need to decide Lozada issue |
| Standard of review and scope of appellate review | Petitioners: (implied) BIA acted arbitrarily in weighing evidence of extraordinary circumstances | Government: appellate review limited to abuse-of-discretion; BIA and IJ findings are reviewed and entitled to deference | Affirmed—appellate court reviews for abuse of discretion and found none |
Key Cases Cited
- Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341 (11th Cir. 2009) (standards for reviewing BIA and IJ decisions when BIA issues its own decision)
- Jiang v. U.S. Att’y Gen., 568 F.3d 1252 (11th Cir. 2009) (motion to reopen for in absentia removal reviewed for abuse of discretion; extraordinary-circumstances requirement)
- Zhang v. U.S. Att’y Gen., 572 F.3d 1316 (11th Cir. 2009) (motions to reopen in removal proceedings are particularly disfavored)
- Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357 (11th Cir. 2013) (en banc) (180-day deadline is a claim-processing rule subject to equitable tolling; elements for tolling: diligence and extraordinary circumstance)
- Gonzalez v. U.S. Att’y Gen., 820 F.3d 399 (11th Cir. 2016) (court will not review issues the BIA declined to address)
- Ruiz-Turcios v. U.S. Att’y Gen., 717 F.3d 847 (11th Cir. 2013) (equitable tolling must be satisfied before reaching the merits of an ineffective-assistance claim)