Pineda v. Whitaker
Opinion
We recently wrote that "[m]otions to reopen-especially untimely motions to reopen-are disfavored in immigration cases. Consequently, an alien who seeks to reopen removal proceedings out of time ordinarily faces a steep uphill climb."
Sihotang
v.
Sessions
,
The petitioner, Geovanny Pineda, is a native and citizen of El Salvador. He entered the United States illegally in 1999. In 2001, he applied for temporary protected status (TPS) and employment authorization. 1 His TPS application was received (but not acted upon immediately) and his application for employment authorization was granted. On April 10, 2003, the petitioner's TPS application was denied. He unsuccessfully moved for reconsideration, but nonetheless remained in the United States.
*839
We fast-forward to May of 2010, at which time the Department of Homeland Security (DHS) initiated removal proceedings against the petitioner. The DHS charged that the petitioner was removable as "[a]n alien present in the United States without being admitted or paroled."
On June 29, 2011, the petitioner failed to make the anticipated filings. His attorney sought a further continuance, telling the IJ that he had not been able to assemble the completed applications within the prescribed interval. The IJ denied a further continuance, found the petitioner's applications for withholding of removal and CAT protection to be abandoned, and ordered the petitioner removed to El Salvador. In his bench decision, the IJ observed that the ten-month continuance he had given the petitioner was "quite sufficient" and that the petitioner had been explicitly warned about the consequences of non-compliance with that deadline.
The petitioner, acting pro se, filed a notice of appeal on July 28, 2011. He asserted that he did "not speak English" and insisted that he had not been made aware of the filing deadline. Rather, he had "relied on [his] lawyer to tell [him] what [he] needed to do to apply for asylum." Thereafter, the petitioner secured the services of a second attorney, who filed a brief in support of his appeal. In that brief, the petitioner argued that the IJ had abused his discretion in deeming the petitioner's requests for withholding of removal and CAT protection abandoned. His argument posited that applications for withholding of removal and CAT protection were requests for "mandatory" protection and, thus, a single procedural misstep was not enough to justify their summary denial.
On December 28, 2012, the BIA affirmed the order of removal. In so doing, it upheld the IJ's determination that the petitioner had abandoned his requests for withholding of removal and CAT protection. The BIA noted, inter alia, that an application for relief that is not filed within the time limits set by the IJ is deemed waived.
See
*840
The petitioner did not seek judicial review of the BIA's removal order, and the matter lay fallow for roughly four and one-half years. At that point, the petitioner-through yet a third attorney-filed a motion beseeching the BIA to vacate the 2012 removal order and reopen the removal proceedings. Along with his motion to reopen, the petitioner proffered applications for asylum, withholding of removal, and CAT protection. The motion was untimely,
see
Motions to reopen removal proceedings run at cross-purposes with "the compelling public interests in finality and the expeditious processing of proceedings."
Guerrero-Santana
v.
Gonzales
,
Some special constraints apply to motions to reopen removal proceedings. In particular, such motions are "limited both numerically and temporally."
Meng Hua Wan
v.
Holder
,
We start with a word of caution: "whether equitable tolling can suspend the time limits applicable to motions to reopen" is an open question in the First Circuit.
Xue Su Wang
v.
Holder
,
This arguendo assumption does not benefit the petitioner because his case presents no fertile soil for equitable tolling. "The equitable tolling doctrine extends statutory deadlines in extraordinary circumstances for parties who were prevented from complying with them through no fault or lack of diligence of their own."
Neves
,
In the case at hand, the BIA found equitable tolling to be beyond the petitioner's reach because he had not exercised due diligence during the lengthy period that elapsed between the BIA's affirmance of the IJ's removal order and the date on which the petitioner moved to reopen the removal proceedings. The petitioner faults the BIA's reasoning, arguing that he diligently pursued his rights by hiring multiple attorneys and attending hearings. Relatedly, he argues that he was unable to assert an ineffective assistance of counsel claim between the date of the BIA's 2012 order of removal and the filing of his 2017 motion to reopen because he did not know that his first attorney had been disbarred. These arguments miss the mark: they do not adequately explain why the petitioner waited four and one-half years before making any effort to reopen the removal proceedings, notwithstanding that the BIA had informed him in its 2012 decision of the elements that he needed to assert his ineffective assistance of counsel claim. Forewarned should be forearmed,
see
Kassel
v.
Gannett Co.
,
The petitioner demurs, pointing out that he hired three separate lawyers during the course of his removal proceedings. But merely hiring lawyers does not create a safe harbor especially where, as here, none of the petitioner's lawyers was on deck during the critical period. His first attorney represented him before the IJ; his
*842
second attorney represented him during his appeal of the IJ's removal order to the BIA; and his third attorney filed the untimely motion to reopen and the instant petition for judicial review. That chronology leaves an obvious gap between 2012 and 2017. Yet the petitioner has offered no plausible explanation for the lengthy period of inactivity between the work done by his second attorney (ending in 2012) and the engagement of his third attorney (beginning in or around 2017). This period of inactivity, which occurred after the BIA informed him of the prerequisites for an ineffective assistance of counsel claim, solidly supports the BIA's finding that the petitioner failed to pursue his immigration case with due diligence.
See
Guerrero-Santana
,
Nor does the fact that the petitioner learned only recently that his first attorney had been disbarred tip the decisional calculus. For one thing, the petitioner's first attorney was disbarred two months before the BIA's 2012 order of removal was entered. Were the petitioner to have employed due diligence, he could have verified the status of his first attorney at the time the BIA dismissed his appeal.
For another thing-and perhaps more importantly-the BIA's 2012 decision carefully delineated the requirements for an ineffective assistance of counsel claim, and there is no requirement that the client show the offending attorney has been disbarred.
See
supra
note 2. Yet the petitioner sat on his hands as the years went by and, for aught that appears, did not lift a finger for over four years to assemble the ingredients of an ineffective assistance claim. We have said before-and today reaffirm-that "[t]he [equitable tolling] doctrine is not available as a means of rescuing a party who has failed to exercise due diligence."
Guerrero-Santana
,
That ends this aspect of the matter. The BIA's discretionary decision about whether to grant an untimely motion to reopen is entitled to great respect.
See
Beltre-Veloz
v.
Mukasey
,
This leaves the petitioner's claim that the BIA violated his due process rights by preventing him from presenting his case on the merits. This claim stumbles at the threshold: the petitioner did not raise it in his motion to reopen and, therefore, we lack jurisdiction to adjudicate it. We explain briefly.
In the immigration context, it is a condition precedent to judicial review of any given claim that the petitioner "has exhausted all administrative remedies available to [him] as of right."
In this case, the record makes manifest that the petitioner's due process claim is debuting in this court; the petitioner simply did not raise this claim, or anything
*843
like it, in his motion to reopen. Nor was the claim raised at any time before the BIA. Consequently, we lack jurisdiction to entertain the petitioner's due process claim.
See
García
v.
Lynch
,
We need go no further. For the reasons elucidated above, the petition for judicial review is denied .
TPS affords aliens protection from removal from the United States upon a determination by the Attorney General that the conditions in the alien's homeland prevent his or her safe return.
See
8 U.S.C. § 1254a. The Attorney General designated El Salvador (the petitioner's homeland) for the TPS program in 2001 after a series of earthquakes struck the country that year.
See
Villanueva
v.
Holder
,
The BIA's decision in
Lozada
is widely recognized as a leading case with respect to claims of ineffective assistance of counsel in the immigration context.
See
,
e.g.
,
García
v.
Lynch
,
(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 assistance 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.
García
,
The petitioner also sought a stay of removal. In an unpublished order, we concluded that the petitioner had not satisfied the requirements for a stay because he had failed to show either a likelihood of success on the merits or irreparable injury.
See
Nken
v.
Holder
,
The petitioner's claim of ineffective assistance is directed solely at his first attorney. He does not suggest that his second attorney, who represented him in the original proceedings before the BIA, performed ineffectively.
Reference
- Full Case Name
- Geovanny PINEDA, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.
- Cited By
- 17 cases
- Status
- Published