Pineda v. Whitaker, 908 F.3d 836

Geovanny Pineda, a Salvadoran national, entered the U.S. illegally in 1999, applied for TPS in 2001 (denied 2003), and remained in the U.S.
DHS instituted removal proceedings in May 2010; Pineda conceded removability and sought withholding/CAT relief; IJ granted a 10‑month continuance and warned that failure to file full applications would be deemed abandonment.
Pineda failed to file the applications by the June 29, 2011 deadline; IJ found the claims abandoned, denied further continuance, and ordered removal. Pineda appealed pro se and then with new counsel.
The BIA affirmed in December 2012, explaining waiver rules and outlining Lozada prerequisites for ineffective‑assistance claims; Pineda did not seek judicial review then.
About 4.5 years later (2017), Pineda moved to reopen with a new attorney, filing asylum/withholding/CAT forms and asserting equitable tolling based on ineffective assistance by his first attorney (who was later disbarred). The BIA denied the untimely motion for lack of diligence; Pineda petitioned for judicial review.
The First Circuit denied the petition, finding no abuse of discretion in the BIA’s refusal to equitably toll the filing deadline and holding Pineda’s due‑process claim unexhausted.

Issue	Pineda's Argument	Government's Argument	Held
Whether the untimely motion to reopen should be equitably tolled due to ineffective assistance of counsel	Equitable tolling is warranted because his first attorney was ineffective and later disbarred, and Pineda only learned of the disbarment recently	Pineda failed to exercise due diligence during the 4.5‑year gap after the BIA decision; he was warned of Lozada requirements and offered no timely steps to assert them	Denied: BIA did not abuse discretion; Pineda failed to show due diligence, so equitable tolling unavailable
Whether hiring multiple attorneys excuses the delay	Hiring three attorneys shows pursuit of rights and diligence	The sequence shows a gap: first attorney before IJ, second on BIA appeal, third only in 2017; hiring alone does not excuse inaction during the critical period	Denied: mere retention of counsel does not excuse unexplained multi‑year inactivity
Whether Pineda’s due‑process claim (denial of ability to present merits) can be considered by the court	BIA’s actions and counsel failures violated due process by preventing merits consideration	Government: claim was never raised before the BIA and thus administrative remedies were not exhausted	Denied for lack of jurisdiction: claim is unexhausted and may not be raised for the first time in federal court

Sihotang v. Sessions, 900 F.3d 46 (1st Cir. 2018) (motions to reopen, especially untimely ones, are disfavored)
Neves v. Holder, 613 F.3d 30 (1st Cir. 2010) (describing equitable tolling standards)
Xue Su Wang v. Holder, 750 F.3d 87 (1st Cir. 2014) (questioning availability of equitable tolling for motions to reopen)
Meng Hua Wan v. Holder, 776 F.3d 52 (1st Cir. 2015) (motions to reopen limited numerically and temporally; due‑diligence analysis)
Guerrero‑Santana v. Gonzales, 499 F.3d 90 (1st Cir. 2007) (equitable tolling unavailable to those who fail to exercise due diligence)
García v. Lynch, 821 F.3d 178 (1st Cir. 2016) (Lozada requirements for ineffective‑assistance claims and exhaustion principles)
Lopez v. Gonzalez, 549 U.S. 47 (2006) (jurisdictional note relevant to removal context)