Medina v. Whitaker , 913 F.3d 263 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1138
JOSE ALBERTO MEDINA,
Petitioner,
v.
MATTHEW G. WHITAKER,
ACTING ATTORNEY GENERAL,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Stahl, and Kayatta,
Circuit Judges.
Randy Olen on brief for petitioner.
Virginia L. Gordon, Trial Attorney, Civil Division, U.S.
Department of Justice, Joseph H. Hunt, Assistant Attorney General,
Civil Division, and Leslie McKay, Senior Litigation Counsel,
Office of Immigration Litigation, on brief for respondent.
January 22, 2019
* Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney
General Matthew G. Whitaker has been substituted for former
Attorney General Jefferson B. Sessions, III as the respondent.
STAHL, Circuit Judge. Petitioner Jose Alberto Medina
("Medina"), a native and citizen of Guatemala, appeals an order of
the Board of Immigration Appeals ("BIA") denying his motion to
reopen his immigration proceedings as untimely. Medina concedes
that the motion, which was filed nearly five years after the BIA
ordered his removal, fell outside the 90-day limitations period
set forth by statute and regulation. See 8 U.S.C. §
1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, he asks this
court to find that the BIA abused its discretion in rejecting his
equitable tolling argument which was meant to render his motion
timely. For the following reasons, we deny the petition.
I. Factual and Procedural Background
Medina entered the United States near San Ysidro,
California, on February 5, 1993. In the summer of 1993, he filed
an application for asylum with the Immigration and Naturalization
Service ("INS").1
On May 23, 2007,2 INS began removal proceedings against
Medina. In his written pleadings, Medina stated that he was
seeking asylum, withholding of removal, and relief under the
1
"The INS's enforcement functions have since been transferred
to the Department of Homeland Security (DHS) . . . ." Chedid v.
Holder, 573 F.3d 33, 34 n.1 (1st Cir. 2009).
2The record does not explain why no action was taken for
fourteen years until April 10, 2007, when Medina was interviewed
by an INS agent.
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Convention Against Torture ("CAT"). In the alternative, he sought
voluntary departure. He appeared with his first counsel, Lidia
Sanchez ("Sanchez"), before an Immigration Judge ("IJ") at a
hearing on October 10, 2007.3 At the hearing, counsel stated that
Medina sought asylum and withholding of removal, and in the
alternative, cancellation of removal, but expressly disavowed any
claim for relief under the CAT. The IJ then continued the hearing
to July 7, 2008.
Because of multiple continuances, the hearing did not
resume until June 16, 2011. On that date, Sanchez represented
that Medina conceded removability but still sought cancellation of
removal or, in the alternative, voluntary departure. Counsel
further stated that Medina wished to withdraw his applications for
asylum and withholding of removal. The IJ asked counsel to affirm
that Medina understood that his withdrawal of those applications
would be with prejudice, and she affirmed that he did so
understand. Thereafter, Medina provided oral testimony, the
content of which is not relevant for resolving this appeal. No
other witnesses testified at the hearing.
3
The hearing was initially scheduled for October 3, 2007.
However, the IJ postponed it one week because the parties had
waited an hour-and-a-half for his counsel to arrive, and the "[IJ]
ha[d] too many cases on [that day] to wait for [Medina's]
attorney."
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On October 6, 2011, the IJ denied Medina's application
for cancellation of removal but granted a 60-day voluntary
departure period. In short, the IJ found that Medina had failed
to corroborate his credible testimony and failed to demonstrate
that his removal would cause "exceptional and extremely unusual
hardship," as required to obtain cancellation of removal, for him
and his family, including two daughters who were U.S. citizens.
On November 4, 2011, with the assistance of a new
attorney, Medina filed a notice of appeal with the BIA. In a brief
dated March 7, 2012, Medina raised several claims, arguing that he
was unprepared for his prior hearing, that the IJ failed to provide
him an opportunity to show that corroborating evidence could not
be reasonably obtained, and that his first counsel's decision to
withdraw his asylum claim was "suspect."
The BIA dismissed the appeal on October 23, 2012, finding
that Medina failed to meet his burden of "demonstrat[ing]
eligibility for cancellation of removal." Because the 60-day
period for voluntary departure provided by the IJ had passed, the
BIA ordered Medina removed from the United States. Despite the
removal order, however, it appears that Medina neither left the
United States nor sought judicial review of the removal order.
On August 21, 2017, with the assistance of his third
(and current) counsel, Medina filed a motion to reopen his removal
proceedings with the BIA. In his brief, he alleged that Sanchez
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rendered ineffective assistance when she withdrew his applications
for asylum, withholding of removal, and protection under the CAT.
He theorized that this was because she had been unprepared to
"prosecute" his claims. He further represented that he had
complied with the requirements of Matter of Lozada, 19 I&N Dec.
637 (BIA 1988) for filing a motion to motion to reopen.4 On that
basis, Medina sought to reopen his removal proceedings, or
alternatively, equitably toll the 90-day limitations period for
filing a motion to reopen. In response, Sanchez submitted an
affidavit refuting Medina's allegations.
On January 26, 2018, the BIA denied the motion to reopen
as untimely. See 8 C.F.R. § 1003.2(c)(2). It noted that Medina
had waited for nearly five years after the BIA originally ordered
him removed before filing the motion. In addition, the BIA stated
4 "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 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 v. Lynch, 821 F.3d 178, 180 n.2 (1st Cir. 2016).
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that Medina had not demonstrated that he "pursued his ineffective
assistance of counsel claim with the requisite due diligence[,]"
and thus the 90-day limitations period for filing such a motion
would not be equitably tolled. The BIA further declined to
exercise its discretionary authority to reopen Medina's
proceedings sua sponte. This petition for judicial review
followed.5
II. Analysis
"Because a motion to reopen removal proceedings is a
disfavored tool, given the threat it poses to finality, the BIA
has a fair amount of latitude to grant or deny the motion and our
review is for abuse of discretion only." Mazariegos v. Lynch, 790
F.3d 280, 285 (1st Cir. 2015) (citing Perez v. Holder, 740 F.3d
57, 61 (1st Cir. 2014)). To prevail, the petitioner must show
that the "BIA committed an error of law or exercised its judgment
in an arbitrary, capricious, or irrational way." Id. (quoting
Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007)) (internal
quotation marks omitted).
A motion to reopen "shall be filed within 90 days of the
date of entry of a final administrative order of removal." 8
5 In his brief, Medina does not seek review of the BIA's
October 23, 2012 order dismissing his appeal of the IJ's decision.
Nor does he challenge the BIA's decision not to reopen his
proceedings sua sponte. Accordingly, our review is limited to the
BIA's January 26, 2018 denial of Medina's request for equitable
tolling. See Ouk v. Keisler, 505 F.3d 63, 66 n.3 (1st Cir. 2007).
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U.S.C. § 1229a(c)(7)(C)(i); see also 8 C.F.R § 1003.2(c)(2). The
question of whether equitable tolling applies to motions to reopen
remains "an open question in the First Circuit." Pineda v.
Whitaker, 908 F.3d 836, 841 (1st Cir. 2018) (citing Xue Su Wang v.
Holder, 750 F.3d 87, 90 (1st Cir. 2014)).
We need not resolve that question today, however,
because "even assuming equitable tolling were available, we could
only reach the merits . . . if the Board abused its discretion in
finding that [petitioner] had not exercised the 'due diligence'
required by our case law." Chedid v. Holder, 573 F.3d 33, 37 (1st
Cir. 2009); see also Pineda, 908 F.3d at 841. We have also held
that "even if equitable tolling were available . . . the doctrine
should be 'sparingly invoked[.]'" Chedid, 573 F.3d at 37 (quoting
Jobe v. INS, 238 F.3d 96, 100 (1st Cir. 2001) (en banc)).
"For equitable tolling to apply, a party must establish
'(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way.'" Xue Su Wang,
750 F.3d at 90 (quoting Neves v. Holder, 613 F.3d 30, 36 (1st Cir.
2010) (per curiam)). Furthermore, the party "must have diligently
pursued his rights for the entire period he seeks tolled, not
merely once he discovers the underlying circumstance warranting
tolling." Neves, 613 F.3d at 36.
Here, Medina provided the BIA no evidence that he
continuously pursued his rights. The administrative record only
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shows that Medina filed an affidavit dated March 8, 2016, stating
"[f]or the past 3 years, I have stayed in touch with my attorneys."
This hardly constitutes the "specific details" we have required.6
Id. at 37.
In addition, his affidavit only covers the period
between March 2013 and March 2016. This leaves another 21 months
unaccounted for, including the period from October 2012, when the
BIA dismissed his appeal, to March 2013, and the period from March
2016 to August 2017, when Medina filed the motion to reopen. See
Jobe, 238 F.3d at 100 n.8 (noting that petitioner must fill in any
gaps in the timeline). Therefore, the BIA cannot be said to have
abused its discretion in declining to apply equitable tolling.
Pineda, 908 F.3d at 842.
In his brief, Medina also suggests that he was unaware
of his ineffective assistance of counsel claim until his present
counsel reviewed his case. However, that contention does not
6 Medina also relies on two out-of-circuit cases in support
of his equitable tolling argument. This reliance is misplaced.
In Avagyan v. Holder, the Ninth Circuit held that the petitioner
had diligently pursued relief when she filed a motion to reopen
within 90 days of learning of her prior counsel's incorrect advice.
646 F.3d 672, 682 (9th Cir. 2011). Similarly, in Gordillo v.
Holder, the Sixth Circuit held that the petitioners had diligently
pursued relief because they had given up their claims only after
being repeatedly told by multiple lawyers that they did not have
any rights. 640 F.3d 700, 705 (6th Cir. 2011). By contrast, in
this case Medina fails to explain his five-year delay before filing
the motion to reopen, let alone provide the "specific details"
required by this circuit. See Neves, 613 F.3d at 37.
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comport with the record. For example, there is evidence that
Medina was on notice of a potential ineffective assistance of
counsel claim from as early as March 2012, five years before filing
the motion to reopen. At that time, his then-counsel wrote in a
brief to the BIA that "the withdrawal of the asylum application is
suspect in that [first counsel] indicated [initially] that she was
proceeding on the [asylum] application and then, without
consultation . . . withdr[e]w the [asylum] application with
prejudice." And, by Medina's own admission, the latest he became
aware of the potential claim was March 8, 2016, when he signed the
affidavit claiming that Sanchez's assistance was defective. But,
Medina fails to explain why he took no action seeking relief until
August 2017, fifteen months later.
Thus, even assuming equitable tolling could apply to
motions to reopen, Medina fails to show that he acted with the
diligence required to obtain such relief. Accordingly, the BIA
did not abuse its discretion in denying his motion to reopen.
III. Conclusion
For the foregoing reasons, the petition for review is
DENIED.
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