Lujan-Jimenez v. Lynch
643 F. App'x 737
10th Cir.2016Background
- Alejandro Lujan-Jimenez, a Mexican national, conceded removability after two unlawful entries and applied for adjustment of status, waiver, and cancellation of removal; IJ denied relief and granted voluntary departure.
- The BIA affirmed the IJ; Lujan’s first petition for review to this court was dismissed as untimely.
- Ninety days after the BIA’s removal order, Lujan filed a "motion to reopen or, in the alternative, motion to reissue," claiming legal error and ineffective assistance of counsel (counsel filed a late petition for review).
- The BIA denied the motion without substantive explanation, treating the legal-error portion as an untimely motion to reconsider and summarily denying the reissue request.
- Lujan petitioned this court challenging the BIA’s denial of his motion to reopen/reissue; the court has jurisdiction under 8 U.S.C. § 1252.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA abused discretion in treating Lujan’s legal-error claim as an untimely motion to reconsider | Lujan: the claim relied on intervening Supreme Court/AG precedent and should be treated as a motion to reopen | Gov: substance challenged the BIA’s legal ruling, so it was a motion to reconsider and untimely | Held: No abuse — BIA reasonably characterized it as a motion to reconsider and correctly found it untimely |
| Whether Lujan was required to present new evidence to support a motion to reopen based on ineffective assistance of counsel | Lujan: ineffective assistance need not always be accompanied by new evidence under 8 C.F.R. §1003.2(c)(1) and Osei | Gov: Osei is distinguishable; new evidence/Lozada requirements apply depending on context | Held: Court rejects blanket rule Lujan asserts; Osei distinguishable and BIA’s differing treatment justified |
| Whether BIA abused discretion by summarily denying request to reissue removal order for ineffective assistance of counsel without explanation | Lujan: he complied with Lozada and suffered prejudice because counsel’s untimely filing foreclosed appellate review; BIA failed to analyze claim | Gov: BIA has broad discretion; relief not warranted and prejudice lacking; circuits differ on reissuance remedy | Held: BIA abused its discretion by issuing a conclusory denial of reissuance without explanation; remanded for reasoned analysis |
| Whether appellate court should adjudicate merits of underlying removal order now | Lujan: merits showing prejudice from counsel’s error | Gov: jurisdiction limited to review of BIA’s denial of motion; merits not before court | Held: Court declines to address merits of underlying removal order; review confined to BIA’s denial of motion |
Key Cases Cited
- Maatougui v. Holder, 738 F.3d 1230 (10th Cir.) (motions to reopen reviewed for abuse of discretion)
- Kucana v. Holder, 558 U.S. 233 (2010) (BIA has broad discretion over motions to reopen)
- Rodas-Orellana v. Holder, 780 F.3d 982 (10th Cir.) (distinguishing motions to reopen vs. reconsider)
- Osei v. INS, 305 F.3d 1205 (10th Cir.) (procedural requirements for ineffective assistance-based motions to reopen)
- Mickeviciute v. INS, 327 F.3d 1159 (10th Cir.) (agency must explain its reasoning; courts cannot supply post-hoc rationalizations)
- Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042 (9th Cir.) (attorney’s failure to file timely appeal may constitute ineffective assistance)
- Hernandez-Velasquez v. Holder, 611 F.3d 1073 (9th Cir.) (review of denial to reissue is for abuse of discretion)
- Chen v. U.S. Att’y Gen., 502 F.3d 73 (2d Cir.) (same)
- Tobeth-Tangang v. Gonzales, 440 F.3d 537 (1st Cir.) (same)