907 F.3d 112
1st Cir.2018Background
- Kuffour, a Ghanaian national, unlawfully entered the U.S. in 1997 and was charged with removability in 2009.
- At his 2014 removal hearing his counsel withdrew and he proceeded pro se; the IJ denied cancellation of removal (hardship to U.S.-citizen daughter) and voluntary departure.
- Kuffour appealed to the BIA only on voluntary departure and administrative closure; the BIA affirmed and declined administrative closure.
- Kuffour later moved to reopen based on ineffective assistance by two prior attorneys, alleging prejudice but submitting no evidentiary proof of eligibility for cancellation with that motion; the BIA denied reopening for lack of evidence and failure to meet procedural Lozada requirements.
- Instead of petitioning the court from the denial of reopening, Kuffour filed a motion to reconsider the BIA denial; the BIA denied reconsideration because he merely rehashed prior arguments and failed to identify specific legal or factual errors in the original decision.
- The First Circuit reviewed the BIA's denial of reconsideration for abuse of discretion and denied Kuffour’s petition for review.
Issues
| Issue | Kuffour's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion by denying the motion to reconsider | BIA erred in finding he failed to show eligibility for cancellation or meet ineffective-assistance procedural rules; BIA overlooked errors in its prior decision | BIA properly denied reconsideration because Kuffour merely reasserted previously rejected claims and failed to identify specific errors or present new record-based arguments | No abuse of discretion; denial affirmed |
| Whether new documents submitted with reconsideration could cure prior failure to show eligibility | New documents show eligibility and prejudice from counsel's ineffectiveness | New evidence cannot be considered on reconsideration (must be in a motion to reopen) and Kuffour did not identify prior-errors in the original record | BIA correctly refused to consider new evidence on a motion to reconsider |
| Whether procedural Lozada requirements were satisfied for an ineffective-assistance claim | Argued BIA misstated facts/law about procedural compliance | BIA correctly found procedural requirements not met and this alone justified denial of reopening | Court need not reach procedural issue because reconsideration denial proper on other grounds |
| Whether the court should review the original denial of the motion to reopen | Kuffour seeks relief based on original denial | Government notes court lacks jurisdiction because no petition for review of original denial was filed | Court did not review original reopening denial; limited to abuse-of-discretion review of reconsideration denial |
Key Cases Cited
- Muyubisnay-Cungachi v. Holder, 734 F.3d 66 (1st Cir. 2013) (standard of review for BIA motions to reconsider)
- Punzalan v. Holder, 575 F.3d 107 (1st Cir. 2009) (procedural Lozada requirements for ineffective-assistance claims)
- Liu v. Mukasey, 553 F.3d 37 (1st Cir. 2009) (motions to reconsider must identify specific errors and not rehash prior arguments)
- Abdullah v. Gonzales, 461 F.3d 92 (1st Cir. 2006) (abuse-of-discretion standard quoted)
- Martinez-Lopez v. Holder, 704 F.3d 169 (1st Cir. 2013) (motion to reconsider intended to cure errors in prior BIA decision)