Petar Yusev v. Jeff Sessions
851 F.3d 763
| 7th Cir. | 2017Background
- Petar and Katerina Yusev, Bulgarian citizens of Macedonian minority origin, entered the U.S. on one-year nonimmigrant visas in 2005 and overstayed; they applied for asylum, withholding, and CAT relief in 2007 (after the one-year deadline).
- They alleged membership in the United Macedonian Organization Ilinden and claimed past police assaults, ongoing police searches, and systemic discrimination against Macedonians in Bulgaria.
- An IJ denied all relief in 2013 for untimely asylum (no changed/extraordinary circumstances) and on the merits for withholding/CAT; the BIA affirmed that decision (Yusev I) and denied reconsideration.
- The Yusevs later filed a BIA motion to reopen (Sept. 1, 2015) based on ineffective assistance by prior counsel (Vrbanoff), arguing equitable tolling; the BIA found the motion untimely and that counsel ineffectiveness did not excuse delay, and denied reconsideration.
- The Seventh Circuit reviews BIA denials of reopening/reconsideration for abuse of discretion and denied the petitions for review, finding no abuse.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of motion to reopen | Motion filed within 90 days of June 17, 2015 BIA action (reinstating voluntary departure); therefore timely | 90-day period runs from April 7, 2015 final order affirming IJ; June 17 action was limited and did not reset the clock | Motion to reopen untimely; April 7, 2015 is the controlling final order |
| Equitable tolling based on ineffective assistance of counsel | Vrbanoff’s failures (omitting additional country/evidence and arguments) justify tolling and excuse late filing | Yusevs lacked due diligence and failed to show prejudice from missing evidence/arguments | No equitable tolling: plaintiffs were not sufficiently diligent and did not show prejudice that likely affected the outcome |
| Motion to reconsider standard | BIA should have granted reconsideration because original denial overlooked counsel-ineffectiveness evidence | Motion reiterated prior arguments and presented no new law/facts the BIA overlooked | Denial of motion to reconsider not an abuse of discretion; motion added nothing new |
| Request for three-member BIA panel | Single-member decision deprived them of proper procedure | Regulations permit referral but do not require three-member panel; no abuse of discretion | No abuse of discretion in single-member disposition; argument previously rejected |
Key Cases Cited
- Reyes-Cornejo v. Holder, 734 F.3d 636 (7th Cir. 2013) (standard for abuse-of-discretion review of BIA denials)
- El-Gazawy v. Holder, 690 F.3d 852 (7th Cir. 2012) (ineffective-assistance-of-counsel may support equitable tolling; due-diligence and prejudice requirements)
- Sarmiento v. Holder, 680 F.3d 799 (7th Cir. 2012) (motion-to-reopen 90-day period measured from the specific final order being challenged)
- Almutairi v. Holder, 722 F.3d 996 (7th Cir. 2013) (BIA order resolving everything except voluntary departure can be final)
- Yuan Gao v. Mukasey, 519 F.3d 376 (7th Cir. 2008) (recognizing equitable tolling in immigration context)
- Alimi v. Gonzales, 489 F.3d 829 (7th Cir. 2007) (prejudice standard for ineffective-assistance claims)
- Ward v. Holder, 632 F.3d 395 (7th Cir. 2011) (BIA discretion over three-member panel referrals)