Garcia v. Lynch

May 9, 2016
15-1633P
Reporters:
,
Before:
Torruella, Selya, Thompson

SELYA, Circuit Judge.

Immigration cases—like old soldiers—seеm never to die. They may fade away for a spell, but they often return in slightly altered postures. So it is here.

The petitioner, José García, is a native and citizen of the Dominican Reрublic. He seeks judicial review of rulings rejecting serial attempts to revisit a final order of removal entered in 2009. Though creative, his arguments are unavailing and, in the end, we dismiss his petition in part and deny it in part.

We briefly rehearse the essential facts and travel of the case. By virtue of his 1996 marriage to a United States citizen, the petitioner became a conditional lawful permanent resident. See 8 U.S.C. § 1186a(a)(1). In 1998, the couple filed an I-751 joint petition to remove the conditions of the petitioner‘s residency. See id. § 1186a(c)(3). United States Citizenship and Immigration Services (USCIS) dеnied the petition, citing marriage fraud. See id. § 1186a(b)(1). After numerous procedural detours, the petitioner‘s conditional permanent residency status was terminated, and federal authorities institutеd removal proceedings against him. See id. §§ 1227(a)(1)(D)(i), 1229(a).

On May 20, 2009, an Immigration Judge (IJ) entered an order of removal in ‍​​‌‌​​‌‌‌‌​​​​​‌‌​​​​​​​​‌​‌‌​​‌‌​​​​​​​‌​​​‌​‌​‍absentia after the petitioner failed to appear for a scheduled hеaring. See id. § 1229a(b)(5). Through his attorney, the petitioner promptly moved to reopen the proceeding, claiming that his arrival at the hearing had been delayed by traffic conditions. The IJ deniеd this motion, concluding that there had been no showing of “exceptional circumstances beyond [the] alien‘s control.” See id. § 1229a(b)(5)(C)(i).

The petitioner appealed the denial of his motion to reopen to the Board of Immigration Appeals (BIA). In short order, however, the petitioner executed an about-face: he withdrew his appeal and requested reinstatement of the removal order, professing a desire to return to his homeland. The BIA obliged and, on July 10, 2009, the petitioner was removed and remitted to the Dominican Republic.

Sometime in December of 2012, the petitioner reentered the United States illegally. He was soon apprehended and charged criminally with unlawful reentry. See 8 U.S.C. § 1326(a).

On August 28, 2013, the petitioner again moved to reopen, alleging that he had received ineffective assistance of counsel during the 2009 removal proceedings. The petitioner initially contended that his counsel had never filed a motion to reopen. When it came to light, though, that the petitioner‘s counsel had indeed filed such a motion eight days after the IJ‘s in absentia removal ordеr, the petitioner switched gears and argued that the filed motion to reopen was “terribly flawed” as it had not included a sworn statement from the petitioner himself.

The IJ denied this secоnd motion to reopen on multiple grounds. Two of those grounds are relevant here. First, the IJ ruled that the motion was time and number barred.1 See 8 C.F.R. § 1003.23(b)(1). Second, the IJ ruled that the petitioner‘s ineffective assistance of counsel claim was faulty because it did not comply with any of the requirements enumerated in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).2 On March 12, 2015, the BIA affirmed the denial of the second motion to reopen, adding that the petitioner had not demonstrated prima facie eligibility for any conservable relief from removal.

The petitioner moved for reconsideration of the BIA‘s decision. See 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b). On May 15, 2015, the BIA denied reconsideration. This petition ‍​​‌‌​​‌‌‌‌​​​​​‌‌​​​​​​​​‌​‌‌​​‌‌​​​​​​​‌​​​‌​‌​‍for judicial review was filed on May 26, 2015. See 8 U.S.C. § 1252(b).

Because this case comes to us as a procedural motley, we begin by clarifying the scope of our review. Congress has imposed statutorily prescribed time limits on parties seeking judicial review of final agency orders in immigration cases. See id. § 1252(b)(1); Hurtado v. Lynch, 810 F.3d 91, 93 (1st Cir.2016). Generally, compliance with these time limits is mandatory and jurisdictional. See Onwuamaegbu v. Gonzales, 470 F.3d 405, 406 (1st Cir.2006); Zhang v. INS, 348 F.3d 289, 292 (1st Cir.2003). Here, the petitioner characterizes his petition for review as a challenge to both the denial of his second motion to reopen and the denial of his motion to reconsider. The catch, however, is that he never filed a timely petition for judicial review of the BIA‘s denial of his second motion to reopen; that is, he never filed such a petition within thirty days of that denial.3 See 8 U.S.C. § 1252(b)(1). It follows inexorably that we lack jurisdiction to review that portion of the petitioner‘s challenge. See Hurtado, 810 F.3d at 93.

This leaves us with jurisdiction to review only the BIA‘s May 15, 2015 denial of the petitioner‘s motion for reconsideration. We review the denial of a motion to reconsider solely for abuse оf discretion. See Martinez-Lopez v. Holder, 704 F.3d 169, 171 (1st Cir.2013). Under this deferential approach, no abuse of discretion will ordinarily be found unless the “denial was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.” Id. at 172 (quoting Zhang, 348 F.3d at 293).

In this instance, the BIA denied the petitioner‘s motion to reconsider for two principal reasons. First, it reasonеd that the petitioner‘s ineffective assistance of counsel claim failed because the petitioner had not complied with the Lozada requirements. Second, it pointed out thаt the motion to reconsider identified neither any error of law or fact in the underlying decision nor any argument that the BIA overlooked in reaching that decision. See 8 C.F.R. § 1003.2(b)(1); In re O-S-G-, 24 I. & N. Dec. 56, 58 (BIA 2006).

Before us, the petitioner suggests that the BIA abused its discretion ‍​​‌‌​​‌‌‌‌​​​​​‌‌​​​​​​​​‌​‌‌​​‌‌​​​​​​​‌​​​‌​‌​‍not only by requiring strict adherence to the demands of Lozada but also by failing to equitably toll the time and number restrictions on motions to reopen. Neither suggestion carries the day.

The first of these suggestions is simply unpersuasive. The petitioner does not dispute that he neglected to comply with the Lozada requirements. Rather, he posits that the inеffective assistance of his counsel is “plain on the face of the administrative record,” Escobar-Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir.2000), thus entitling him to an exception to the Lozada requirements. We have, however, explicitly disavowed any “plain on the facе of the administrative record” exception in favor of a case-by-case assessment of whether the BIA‘s application of Lozada was arbitrary. See Zeng v. Gonzales, 436 F.3d 26, 31 (1st Cir.2006).

Contrary to the petitioner‘s importunings, our decision in Saakian v. INS, 252 F.3d 21, 26-27 (1st Cir.2001), does not endorse a different rule. Fairly read, Saakian stands for nothing more than the commonplace proposition that the BIA cannot arbitrarily apply the Lozada requirements. See Tai v. Gonzales, 423 F.3d 1, 5-6 (1st Cir.2005); Asaba v. Ashcroft, 377 F.3d 9, 11 (1st Cir.2004). That ends this aspect of the matter: since the petitioner‘s theory of legal error is foreclosed by circuit precedent, the BIA perforce did not abuse its discretion in denying the motion for reconsideration on this ground.4

The petitioner‘s remaining argument—that the BIA abused its discretion by failing to treat his otherwise time and number barred second motion to reopen as if it were a timeous first attempt under the doctrine of equitable tolling—is a nonstarter. Passing the question of whether equitable tolling is available at all in this context, see Omar v. Lynch, 814 F.3d 565, 568-69, 569 n. 1 (1st Cir.2016) (leaving question open); Muyubisnay-Cungachi v. Holder, 734 F.3d 66, 72 (1st Cir.2013) (same), it is black-letter law that “arguments not raised before the BIA are waived due to a failure to exhaust administrative remedies.” Shah v. Holder, 758 F.3d 32, 37 (1st Cir.2014) (quoting Molina de Massenet v. Gonzales, 485 F.3d 661, 664 (1st Cir.2007)). That rule applies four-square in this case: the petitioner did not make his equitable tolling argument before the BIA. Instead, the argument makes its debut in his ‍​​‌‌​​‌‌‌‌​​​​​‌‌​​​​​​​​‌​‌‌​​‌‌​​​​​​​‌​​​‌​‌​‍briefing to this court. His failure to advance the argument below means it is unexhausted and, thus, that cannot be considered in this judicial review proceeding. See id.; see also DaCosta v. Gonzales, 449 F.3d 45, 49-50 (1st Cir.2006) (refusing to consider equitable tolling argument not raised before the BIA).

We need go no further. For the reasons elucidated above, we dismiss the petition for judicial review in part for want of jurisdiction and otherwise deny it.

So Ordered.

Notes

1

Motions to reopen are generаlly subject to both temporal and numeric restrictions. See Meng Hua Wan v. Holder, 776 F.3d 52, 56 (1st Cir.2015); see also 8 C.F.R. § 1003.23(b)(1). “A party ordinarily may file only one motion to reopen, and that motion must be filed within 90 days of the date of entry of the final administrative order.” Meng Hua Wan, 776 F.3d at 56. The deadline for filing a motion to reopen in absentia orders of removal broadens to 180 days if the alien can demonstrate that the failure to appear was the result of exceptional circumstances. See 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1); Xue Su Wang v. Holder, 750 F.3d 87, 89-90 (1st Cir.2014).

2

Under Lozada, a valid motion to reopen based on ineffective assistance of counsel must be supported by:

(1) an affidavit explaining the petitioner‘s agreement with counsel regarding legal representation; (2) evidence that counsel has been informed of the allegations of ineffective assistanсe and has had an opportunity to respond; and (3) if it is asserted that counsel‘s handling of the case involved a violation of ethical or legal responsibilities, a complaint against the attorney filed with disciplinary authorities or, in the alternative, an explanation for why such a complaint has not been filed.

Taveras-Duran v. Holder, 767 F.3d 120, 123 n. 2 (1st Cir.2014) (quoting Punzalan v. Holder, 575 F.3d 107, 109 n. 1 (1st Cir.2009)); see Lozada, 19 I & N Dec. at 639.

3

The BIA‘s March 12, 2015 order was a final order, and thе subsequent filing of a motion to reconsider does not toll the running of the period within which an aggrieved party may seek judicial review. See Saka v. Holder, 741 F.3d 244, 248-49 (1st Cir.2013). To that extent, then, we dismiss the ‍​​‌‌​​‌‌‌‌​​​​​‌‌​​​​​​​​‌​‌‌​​‌‌​​​​​​​‌​​​‌​‌​‍petition for want of jurisdiction.

4

We add that nothing in the record so much as hints that the BIA abused its discretion in insisting upon the applicability of the Lozada requirements here. In all events, we have consistently upheld BIA orders denying motions to reopen when—as in this case—the Lozada requirements have been flouted. See, e.g., Taveras-Duran v. Holder, 767 F.3d 120, 123-24 (1st Cir.2014); Zeng, 436 F.3d at 31-32.

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