767 F.3d 120
1st Cir.2014Background
- Taveras-Duran, a Dominican citizen, entered the U.S. as a tourist on Feb 27, 2004.
- He married a U.S. citizen in 2004 and obtained conditional permanent residence; a joint petition to remove conditions filed July 27, 2007.
- USCIS concluded the marriage was sham and terminated his conditional resident status; he was served for removal proceedings on Dec 3, 2008.
- Taveras-Duran and his wife divorced in 2009; he applied in Nov 2009 for a good-faith waiver under INA §216(c).
- USCIS denied the waiver; IJ found no good-faith marriage and granted 30 days voluntary departure with a final warning of future ineligibility.
- BIA dismissed the appeal in May 2013, extended the voluntary-departure period to 30 days, and he did not depart; he later moved to reopen in Aug 2013.
- BIA denied the motion to reopen in Dec 2013 on grounds of Ineligibility under 8 U.S.C. §1229c(d) and Lozada noncompliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is movant statutorily ineligible under 8 U.S.C. §1229c(d)? | Taveras-Duran argues ineligibility arose only due to Board timing. | BIA asserts failure to depart triggers 10-year ineligibility regardless of timing. | Ineligible for relief under §1229c(d) due to failure to depart. |
| Does DaCosta retroactively nullify prior violation upon reopening? | None explicit; challenge to effect of reopening on previous departure violation. | Reopening cannot retroactively erase the violation after the deadline. | DaCosta authority supports that reopening cannot erase later illegality; ineligibility persists. |
| Was ineffective-assistance claim properly denied under Lozada? | Claim raised as additional reason to favor reopening. | Lozada requirements not satisfied; BIA acted within discretion. | BIA did not abuse discretion; Lozada requirements not met and evidence insufficient. |
| Standard of review for denial of motion to reopen? | Not advanced beyond statutory grounds. | Abuse-of-discretion review governs BIA's decision. | Court defers to BIA; no abuse of discretion shown. |
Key Cases Cited
- DaCosta v. Gonzales, 449 F.3d 45 (1st Cir. 2006) (reopening cannot retroactively nullify prior departure violation)
- Jupiter v. Ashcroft, 396 F.3d 487 (1st Cir. 2005) (statutory ineligibility under §1229c(d) for failure to depart)
- Lozada, 1988 I. & N. Dec. 637 (BIA) (procedural Lozada requirements for ineffective-assistance claims)
- Asaba v. Ashcroft, 377 F.3d 9 (1st Cir. 2004) (BIA discretion to deny motions to reopen when Lozada criteria not met)
- Beltre-Veloz v. Mukasey, 533 F.3d 7 (1st Cir. 2008) (abuse of discretion standard in reviewing motion to reopen)