897 F.3d 886
7th Cir.2018Background
- Sembhi, an Indian national, overstayed a visitor visa and was placed in removal proceedings; he conceded removability. An IJ scheduled a merits hearing for Oct. 10, 2001.
- Sembhi failed to appear on Oct. 10; counsel Burton appeared and informed the IJ that Sembhi had notice. IJ entered an in absentia removal order to India.
- More than 10 years later (2012) Sembhi moved to reopen and rescind the in absentia order, blaming prior counsel(s) for misinformation and ineffective assistance; IJ denied the motion for lack of exceptional circumstances and Lozada compliance.
- The BIA dismissed Sembhi’s appeal and then repeatedly denied multiple subsequent motions to reopen and to reconsider (totaling five motions to reopen and three to reconsider), finding Lozada requirements unmet and that no equitable tolling applied.
- The BIA’s July 25, 2017 order denied Sembhi’s third motion to reconsider and fifth motion to reopen; it found (1) no Lozada-compliant notice to former counsel (except Lenz‑Calvo, who never became retained counsel), and (2) no basis to equitably toll timing/number limits.
- The Seventh Circuit denied review, holding the BIA did not abuse its discretion because Sembhi failed to satisfy Lozada’s threshold requirements needed to invoke equitable tolling for late/serial motions.
Issues
| Issue | Sembhi's Argument | BIA/Government's Argument | Held |
|---|---|---|---|
| Whether confusion about the hearing date can be an "exceptional circumstance" excusing failure to appear | Confusion about the Oct. 10 date (thought it was Oct. 12) coupled with prior attendance and prospects for relief made it extraordinary | Mere mistake as to date is not an exceptional circumstance; record shows written and oral notice | BIA acted within discretion in treating date confusion as insufficient to rescind in absentia order |
| Whether ineffective assistance of prior counsel permits equitable tolling of time and numerical limits on motions to reopen | Prior counsel misadvised Sembhi about date, futility of reopening, and delay; counsel failures excuse late/serial filings | To invoke tolling, petitioner must meet Lozada’s procedural prerequisites (affidavit, notice to counsel, disciplinary complaint or explanation) | Petitioner failed to comply with Lozada; BIA properly declined to toll limits |
| Whether Sembhi complied with Lozada notice-and-affidavit requirements | Sembhi said he gave notice and filed disciplinary complaints; argues that suffices | Mere filing with ARDC does not prove counsel received notice; affidavits and briefs don’t show required notice to Burton/Carbide; Lenz‑Calvo was not retained | Court agrees with BIA: Lozada compliance lacking; BIA did not err in refusing to adjudicate ineffectiveness on merits |
| Whether the BIA abused its discretion in denying successive motions to reopen/reconsider | Repeated filings raise new facts (approved I-130, changed circumstances) and newly developed evidence of counsel misconduct | BIA reasonably concluded filings repeated prior arguments, lacked Lozada compliance, numerically/timely barred, and no basis for sua sponte reopening | No abuse of discretion; petition for review denied |
Key Cases Cited
- Singh v. INS, 295 F.3d 1037 (9th Cir. 2002) (date-confusion can in some circumstances qualify as extraordinary where attendance record and likely relief support claim)
- Valencia‑Fragoso v. INS, 321 F.3d 1204 (9th Cir. 2003) (distinguishing Singh where only possible relief was voluntary departure)
- INS v. Abudu, 485 U.S. 94 (1988) (standard of review for motions to reopen is abuse of discretion)
- Patel v. Gonzales, 496 F.3d 829 (7th Cir. 2007) (Lozada requirements are procedural prerequisites; representations in briefs do not substitute for evidence of compliance)
- Marinov v. Holder, 687 F.3d 365 (7th Cir. 2012) (filing disciplinary complaint does not necessarily satisfy Lozada notice requirement)
- Guzman‑Rivadeneira v. Lynch, 822 F.3d 978 (7th Cir. 2016) (Lozada notice requirement serves to screen frivolous claims and allow counsel to respond)
- Aparicio‑Brito v. Lynch, 824 F.3d 674 (7th Cir. 2016) (time and numerical limits on reopening can be equitably tolled for attorney ineffectiveness but Lozada compliance is required)