Romer v. Holder
2011 U.S. App. LEXIS 24571
| 1st Cir. | 2011Background
- Romer, a Ukrainian citizen married to a U.S. citizen, overstayed a visitor permit and faced removal.
- An IJ granted Romer voluntary departure by March 8, 2006; Romer sought to challenge that order via motions to reopen.
- Romer, with counsel Sirota, filed a timely first motion to reopen; the IJ denied it in January 2006 and mailed notice that Romer allegedly did not receive.
- Romer remained in the U.S. past his deadline, relying on counsel’s guidance that he could stay while the case resolved.
- Romer’s wife later hired Romanovsky, who filed a third motion to reopen asserting ineffective assistance of counsel and equitable tolling; Romer also argued the ten-year bar to adjustment should not apply because departure was not voluntary.
- The IJ denied the third motion, the BIA affirmed, and Romer challenged on appeal, contending tolling and misadvice should alter the outcome.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether equitable tolling can apply to time/number limits for motions to reopen | Romer argues tolling should apply to permit a second reopening. | Holder contends tolling may not apply to these limits; strict application favored. | Remanded to evaluate whether tolling is available. |
| Whether misadvice by counsel renders Romer’s failure to depart involuntary, avoiding the ten-year bar | Romer claims counsel misled him, rendering failure to depart nonvoluntary. | Holder argues voluntariness of departure is the controlling factor; misadvice contested. | Remanded to consider voluntariness and potential tolling impact. |
| Whether the IJ/BIA adequately analyzed tolling and voluntariness in denying the motions | IJ failed to engage with tolling and misadvice arguments, constituting abuse of discretion. | Board/agency decisions assumed standard review and did not sufficiently analyze | Abuse of discretion found; remand to properly address the arguments. |
Key Cases Cited
- Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000) (realities of equitable tolling in immigration proceedings)
- Neves v. Holder, 613 F.3d 30 (1st Cir. 2010) (review standard for BIA affirmations without opinion)
- Aponte v. Holder, 610 F.3d 1 (1st Cir. 2010) (abuse-of-discretion standard and need for adequate reasoning)
- Le Bin Zhu v. Holder, 622 F.3d 87 (1st Cir. 2010) (equitable tolling considerations in immigration context)
- Zhao v. INS, 452 F.3d 154 (2d Cir. 2006) (non-discretionary limits on motion to reopen and tolling)
- Singh v. Holder, 658 F.3d 879 (9th Cir. 2011) (tolling considerations for equitable relief)
- In re Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988) (ineffective-assistance of counsel standard)
- In re Zmijewska, 24 I. & N. Dec. 87 (B.I.A. 2007) (ten-year bar not subject to equity in certain contexts)