Anguisaca v. Attorney General of the United States
Opinion of the Court
OPINION
Rosa Patricia Anguisaca petitions for review of a decision of the Board of Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.
Anguisaca, a native of Ecuador, entered the United States in 1992. In 2002, she was charged as removable as an alien who entered without a valid entry document. She applied for cancellation of removal and voluntary departure. In a decision dated March 20, 2007, the IJ found Anguisaca removable and denied her applications for cancellation of removal and voluntary departure. In a July 2008 decision, the BIA agreed with the IJ that Anguisaca had not demonstrated that her removal would cause exceptional and extremely unusual hardship to her United States citizen husband and children. Anguisaca did not file a petition for review of the BIA’s decision.
On June 1, 2009, Anguisaca filed a motion to reopen with the BIA. She argued
We have jurisdiction under 8 U.S.C. § 1252. We review the denial of a motion to reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). Under this standard, we will reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). The BIA’s factual determinations must be upheld if they are supported by substantial evidence. Liu v. Attorney General, 555 F.3d 145, 148 (3d Cir. 2009). Under the substantial evidence standard, the BIA’s findings can be rejected only if “any reasonable adjudicator would be compelled to conclude to the contrary.” Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).
An alien may file a motion to reopen with the BIA “within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i). We have held that the deadline for motions to reopen may be equitably tolled on the basis of ineffective assistance of counsel. See Mahmood v. Gonzales, 427 F.3d 248, 251 (3d Cir. 2005). In Mahmood, we concluded that the alien’s claims of ineffective assistance of counsel were sufficient to provide a basis for equitable tolling but that the alien had not acted with diligence. We noted that equitable tolling is an extraordinary remedy. Id. at 253.
Citing Mahmood, the BIA addressed whether Anguisaea was entitled to equitable tolling even though she had not alleged ineffective assistance of counsel. The BIA determined that Anguisaea was not entitled to equitable tolling because she had not acted with reasonable diligence upon learning of the BIA’s decision. It noted that Anguisaea learned of the BIA’s decision in January 2009 but did not file her motion to reopen until June 2009.
In her brief, Anguisaea states that she consulted with her current counsel at the end of January 2009. She contends that her counsel needed to receive and review the file before he could determine that neither Anguisaea nor her counsel received the briefing schedule or the BIA’s decision. She asserts that it was not until May 2009 that she was able to contact prior counsel to sign an affidavit stating that he had not received the briefing schedule or BIA’s decision.
Anguisaea also argues that her rights to due process were violated by the
For the above reasons, we will deny the petition for review.
. In her petition for review, Anguisaea stated that she learned of the BIA’s decision in late January 2009 but that it took two months to receive the record and until April 2nd to obtain an affidavit from prior counsel. The affidavit by counsel is dated April 2, 2009. A.R. at 48. She asserted that it took until May 2009 to get an affidavit from an expert witness regarding the conditions in Ecuador.
. We note that in her notice of appeal to the BIA from the IJ’s decision, Anguisaea argued that the IJ’s decision was legally and factually flawed but did not assert any allegations of bias or transcription errors. A.R. at 148.
Reference
- Full Case Name
- Rosa Patricia ANGUISACA v. ATTORNEY GENERAL OF the UNITED STATES
- Status
- Published