Lilia Silva v. Jefferson Sessions
699 F. App'x 609
9th Cir.2017Background
- Silva, a Mexican citizen and former LPR, sought to reopen a 1994 deportation order in 2011 and requested DHS records via FOIA; BIA denied her motion to reopen and motions to compel records.
- Silva’s motion to reopen was filed 17 years after the final deportation order; timeliness was undisputedly lacking.
- Silva argued equitable tolling based on ineffective assistance of two prior attorneys and reliance on an immigration officer who allegedly returned her green card and said deportation was waived.
- Silva contended due process violations based on an IJ’s 1993 bond-hearing comment about low chances of § 212(c) relief and on incomplete A-file production after FOIA requests.
- The BIA (and this panel) found Silva failed to show prejudice from counsel or IJ statements, failed to show entitlement to equitable estoppel, and failed to exhaust administrative FOIA remedies or demonstrate prejudice from any missing A-file documents.
Issues
| Issue | Silva's Argument | Government's Argument | Held |
|---|---|---|---|
| Equitable tolling for untimely motion to reopen due to ineffective assistance of counsel | Prior counsel’s errors prevented timely filing and Silva exercised due diligence | Silva cannot show counsel’s ineffectiveness caused prejudice or prevented timely action | Denied — Silva failed to show prejudice from counsel’s conduct |
| Due process based on IJ’s 1993 statement about § 212(c) prospects | IJ’s remark was misleading and violated due process, warranting relief/tolling | Even if improper, Silva was not prejudiced and later continued to seek § 212(c) before withdrawing | Denied — no prejudice shown; Silva withdrew only after full advisals |
| Equitable estoppel/reliance on DHS officer who returned green card | Officer Martinez’s actions induced Silva to remain and forego remedies for 17 years | Any equities do not excuse failure to make a prima facie showing of eligibility or reliance causing injury | Denied — Silva did not show reliance caused her injury or new evidence undermining her 1994 withdrawal |
| FOIA/A-file disclosure and exhaustion of remedies; due process to compel records | Silva lacked full A-file; due process requires court to compel disclosure | Silva failed to administratively appeal FOIA denials and shows no prejudice from missing records | Denied — administrative remedies not exhausted and no demonstrated prejudice |
Key Cases Cited
- Bonilla v. Lynch, 840 F.3d 575 (9th Cir. 2016) (equitable tolling and ineffective-assistance standards for motions to reopen)
- Oshodi v. Holder, 729 F.3d 883 (9th Cir. 2013) (due process review standard in removal proceedings)
- Singh v. Holder, 658 F.3d 879 (9th Cir. 2011) (elements to trigger equitable tolling for ineffective counsel)
- Salazar-Gonzalez v. Lynch, 798 F.3d 917 (9th Cir. 2015) (prejudice requirement for ineffective-assistance claims)
- Correa-Rivera v. Holder, 706 F.3d 1128 (9th Cir. 2013) (prejudice requirement reaffirmed)
- United States v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014) (Due Process Clause protections for individuals in the U.S.)
- Dent v. Holder, 627 F.3d 365 (9th Cir. 2010) (discussing due process and access to A-file materials)
- Young Sun Shin v. Mukasey, 547 F.3d 1019 (9th Cir. 2008) (motion-to-reopen requires prima facie eligibility showing)
- Nijhawan v. Holder, 557 U.S. 29 (Sup. Ct.) (aggravated felony and deportability principles)
- Lopez v. Gonzales, 549 U.S. 47 (Sup. Ct.) (definition of drug trafficking crime under INA and § 924(c))
- Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989) (standards for equitable estoppel and required showing of reliance)