657 F.3d 745
8th Cir.2011Background
- Valencia, a Philippines citizen, entered on a nonimmigrant visa and alleges trafficking abuse by a Kuwaiti employer.
- Removal proceedings began August 2002 for overstay and lack of work authorization; Valencia retained attorney Cox who sought voluntary departure.
- IJ granted removal and voluntary departure in December 2002; Valencia failed to depart by April 2003 when the order became final.
- After final removal, Cox prepared a T visa application in 2003, filed in 2003, which was denied in 2004 for lack of trafficking eligibility.
- Valencia later married a U.S. citizen, obtained an approved I-130 in 2007, and filed a 2009 motion to reopen based on ineffective assistance of counsel.
- BIA denied the motion as untimely and not exceptional; Valencia petitioned for review claiming exceptional circumstances due to Cox’s ineffectiveness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of motion to reopen based on ineffective assistance | Valencia argues Cox's ineffectiveness warrants reopening | BIA properly treated as untimely; no tolling shown | Denied; motion untimely and not tolled validly |
| Equitable tolling for Lozada-based claims | Due diligence and tolling should excuse lateness | Equitable tolling rare; not shown due diligence | Denied; no due diligence shown by Valencia |
| Prejudice under Lozada standard | Cox's negligence prejudiced her rights to adjust status | Prejudice not shown; claim focused on later eligibility | Denied; no prejudice shown |
| BIA sua sponte reopen discretion | BIA could reopen sua sponte in exceptional circumstances | Regulation commits to agency discretion; no exceptional circumstances | Denied; court lacks jurisdiction to review sua sponte reopening and no exceptional case shown |
| Vagueness of BIA reopening authority challenge | Regulation permitting sua sponte reopen is vague | Claim not pursued on appeal; declined to address | Declined to address; not reviewed |
Key Cases Cited
- Guled v. Mukasey, 515 F.3d 872 (8th Cir. 2008) (abuse of discretion standard for BIA decisions)
- Ortega-Marroquin v. Holder, 640 F.3d 814 (8th Cir. 2011) (equitable tolling in late motions to reopen)
- Pafe v. Holder, 615 F.3d 967 (8th Cir. 2010) (limited use of equitable tolling for ineffective-assistance motions)
- Habchy v. Gonzales, 471 F.3d 858 (8th Cir. 2006) (tolling not available for rights sleeping over six years)
- Lozada, 19 I. & N. Dec. 637, 19 I. & N. Dec. 637 (BIA 1988) ( Lozada requirements for ineffective-assistance motions to reopen)
- In re J-J-, 21 I. & N. Dec. 976, 21 I. & N. Dec. 976 (BIA 1997) (exceptional situations for sua sponte reopening)
- Tamenut v. Mukasey, 521 F.3d 1000 (8th Cir. 2008) (jurisdictional limits on review of BIA sua sponte reopen)
- Ochoa v. Holder, 604 F.3d 546 (8th Cir. 2010) (application of Lozada standard in ineffective-assistance motions)