United States Court of Appeals For the First Circuit

No. 20-1425

ERVIN ROLANDO QUIROA-MOTTA,

Petitioner,

v.

MERRICK B. GARLAND*, United States Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Howard, Chief Judge, Boudin and Kayatta, Circuit Judges.

Hans J. Bremer and Bremer Law & Associates, LLC on brief for petitioner. Jeffrey Bossert Clark, Acting Assistant Attorney General, U.S. Department of Justice, Civil Division, Shelley R. Goad, Assistant Director, U.S. Department of Justice, Office of Immigration Litigation, and Jennifer A. Singer, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, on brief for respondent.

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Merrick B. Garland has been substituted as the respondent. April 6, 2021 BOUDIN, Circuit Judge. A citizen of Guatemala, Ervin

Rolando Quiroa-Motta entered the United States without permission

in 1992. In 2005, Mr. Quiroa-Motta was issued a Notice to Appear

before an Immigration Judge ("IJ") and applied for cancellation of

his removal under 8 U.S.C. § 1229b(b)(1). The IJ denied his

application, and the Board of Immigration Appeals ("BIA")

affirmed. Mr. Quiroa-Motta was removed to Guatemala in June 2008

but reentered the United States that December.

Nearly eleven years later, Mr. Quiroa-Motta filed a

motion to reopen the BIA decision based on ineffective assistance

of counsel, arguing that his prior counsel failed to provide the

documents necessary to support his original application. The BIA,

noting that the motion was time-barred and that Mr. Quiroa-Motta

had not shown that equitable tolling was appropriate, denied the

motion. He appeals, and this court reviews the BIA's decision

"solely for abuse of discretion." Bbale v. Lynch,

(1st Cir. 2016).

In general, a "motion to reopen shall be filed within 90

days of the date of entry of a final administrative order of

removal." 8 U.S.C. § 1229a(c)(7)(C)(i); see also

(c)(2). Mr. Quiroa-Motta concedes that he filed his motion

almost eleven years too late but argues he did not know his counsel

ineffectively represented him before the IJ and the BIA until he

talked to a different lawyer years after his return to the United

- 3 - States. See Lozada v. INS,

(1st Cir. 1988).

Therefore, he claims, the statutory deadline should be equitably

tolled to ensure that he receives due process.

To succeed, Mr. Quiroa-Motta would have to show "(1)

that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way" of filing by the

deadline. Neves v. Holder,

(1st Cir. 2010) (per

curiam) (quoting Pace v. DiGuglielmo,

(2005)).1

Equitable tolling is a rare remedy, and the burden is on Mr.

Quiroa-Motta to show that he "diligently pursued his rights for

the entire period he seeks tolled, not merely once he discover[ed]

the underlying circumstances warranting tolling."

Mr. Quiroa-Motta's motion to reopen did not include any

evidence that he diligently pursued his claims between the BIA's

dismissal of his application in February 2008 and when he hired

his current attorney. Even if this court credits his argument

that he could not investigate his prior counsel's assistance while

he remained in Guatemala, a contention that he raises for the first

time on appeal, Mr. Quiroa-Motta does not adequately explain his

lack of diligence in the decade after he returned to the United

States. See, e.g., Medina v. Whitaker,

(1st

1 Although this court has not conclusively determined that motions to reopen are subject to equitable tolling, see Tay-Chan v. Barr,

(1st Cir. 2019), this court assumes without deciding that it is an available remedy.

- 4 - Cir. 2019). As in Tay-Chan v. Barr, in which this court assumed

that the petitioner had received ineffective assistance of counsel

before the agency, the petitioner's "protracted period of

inactivity . . . still supports the BIA's conclusion that [he] did

not show due diligence."

(1st Cir. 2019); see

also Molina v. Barr,

, 30-31 (1st Cir. 2020).

Finally, Mr. Quiroa-Motta argues, and the government

agrees, that the BIA erred when it found that his motion was barred

by

(a)(5). That statute prohibits motions to reopen

after a prior order of removal has been reinstated, and the

Attorney General did not issue a reinstatement order here.

However, the BIA's rejection of Mr. Quiroa-Motta's equitable

tolling claim was an independently sufficient basis for denying

his motion, rendering any error harmless. See Bebri v. Mukasey,

(1st Cir. 2008).

Denied.

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