Aguilar Osores v. Ashcroft ( 2005 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1859
VÍCTOR AGUILAR-OSORES,
Petitioner,
v.
ALBERTO GONZÁLEZ,* ATTORNEY GENERAL,
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Stephen A. Lagana, with whom Lagana & Associates was on brief,
for petitioner.
Jamie M. Dowd, Attorney, Office of Immigration Litigation,
Civil Division, with whom Peter D. Keisler, Assistant Attorney
General, and David V. Bernal, Assistant Director, were on brief,
for respondent.
April 7, 2005
*
Alberto Gonzáles was sworn in as United States Attorney General
on February 3, 2005. We have therefore substituted Attorney
General Gonzáles for John Ashcroft as the respondent. See Fed. R.
Civ. P. 25()(1); Fed. R. App. P. 43(c)(2).
TORRUELLA, Circuit Judge. Petitioner Víctor Aguilar-
Osores appeals a decision of the Board of Immigration Appeals
("BIA") affirming an Immigration Judge's denial of his motion to
reopen removal proceedings. We affirm.
I. Background
Aguilar-Osores, a native and citizen of Peru, entered the
United States at Miami, Florida, on October 4, 1996, as a
nonimmigrant with authorization to remain in the United States
until January 3, 1997. On June 4, 2001, the Immigration and
Naturalization Service ("INS")1 issued a Notice to Appear, charging
Aguilar-Osores with removability under § 237(a)(1)(B) of the
Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(1)(B),
for overstaying his visa.
In written pleadings on November 20, 2002, Aguilar-
Osores, through his counsel John Loscocco ("Loscocco"), admitted
the factual allegations against him, conceded removability, and
requested relief in the form of voluntary departure. The
Immigration Judge granted Aguilar-Osores's request for voluntary
departure until March 20, 2003. Aguilar-Osores failed to depart by
that date, and on August 27, 2003, the Department of Homeland
Security arrested him.
1
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
("BICE"). For simplicity, we refer to the agency throughout this
opinion as the INS.
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On November 25, 2003, Aguilar-Osores, through new
counsel, filed a motion to reopen2 before the Immigration Judge on
the basis of ineffective assistance of counsel. On December 22,
2003, Aguilar-Osores filed a memorandum of law in support of his
motion to reopen. Aguilar-Osores contended in the memorandum that
the filing deadline for a motion to reopen should not apply to his
case because of Loscocco's ineffective assistance.
Aguilar-Osores stated that, after he received the Notice
to Appear, he met with Loscocco for a consultation. According to
Aguilar-Osores, he specifically asked Loscocco whether threats made
against his life as a result of his work in the anti-terrorist unit
of the Peruvian Police Department made him eligible to apply for
asylum or some other form of relief. Loscocco told him that it was
too late to apply for any type of relief except voluntary departure
because Aguilar-Osores had been in the country for over one year,3
and also suggested that Aguilar-Osores apply to the Diversity Visa
Lottery Program. Loscocco then allegedly told Aguilar-Osores to
attend a November 14, 2001 hearing at the Immigration Court,
2
Aguilar-Osores also filed a motion for an emergency stay of
deportation. Since the instant appeal involves only the motion to
reopen, we do not discuss any of the facts or proceedings related
to Aguilar-Osores's motion for an emergency stay of deportation.
3
Subject to certain exceptions, an alien must file an application
for asylum "within one year after the date of the alien's arrival
in the United States." 8 U.S.C. § 1158(a)(2)(B). There is no such
deadline for applications for withholding of removal. See 8 C.F.R.
§ 1208.4(a).
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request a continuance to seek legal representation, and return to
Loscocco's office. According to Aguilar-Osores, Loscocco indicated
that he would then ask for a second continuance as Aguilar-Osores's
legal representative. Aguilar-Osores stated that he did what
Loscocco told him to do. He also stated that he met with Loscocco
after the November 14, 2001 hearing, and again asked about the
possibility of applying for asylum. Loscocco again told Aguilar-
Osores that it was too late to apply for asylum. Loscocco appeared
with Aguilar-Osores at the November 20, 2002 hearing, where
Aguilar-Osores admitted the charges against him and requested
voluntary departure. After the hearing, Loscocco took a $500.00
cash payment from Aguilar-Osores and gave him a sticky note as a
receipt. Loscocco also mailed Aguilar-Osores a letter reminding
him that he had to depart the United States by March 20, 2003.
In accordance with the requirements set forth in Matter
of Lozada, 19 I & N Dec. 637, 639 (BIA 1988),4 Aguilar-Osores
attached to his December 22, 2003 memorandum in support of
4
In order to screen frivolous ineffective assistance of counsel
claims, the BIA requires that a motion to reopen based on
ineffective assistance of counsel be accompanied by the following:
(1) an affidavit from the alien detailing the agreement between the
alien and the attorney; (2) evidence that the alien has informed
his attorney of the ineffective assistance allegations and has
given the attorney an opportunity to respond; (3) evidence that the
alien has filed a complaint with the appropriate disciplinary body
regarding the attorney's alleged conduct or a satisfactory
explanation for not filing such a complaint. See Matter of Lozada,
19 I & N Dec. at 639; Asaba v. Ashcroft, 377 F.3d 9, 11 (1st Cir.
2004).
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reopening a signed affidavit and a copy of an ineffective
assistance of counsel complaint addressed to the Massachusetts
Office of Bar Counsel. On January 5, 2004, Aguilar-Osores filed a
motion to supplement his motion to reopen in order to apply for
asylum based on changed circumstances in Peru.
On February 9, 2004, Aguilar-Osores filed a copy of
Loscocco's response to the Office of the Bar Counsel addressing
Aguilar-Osores's allegations. In this response, Loscocco stated
that, although he met with Aguilar-Osores on September 5, 2001,
Aguilar-Osores did not retain him as counsel until the day of his
removal hearing on November 22, 2002, when he paid Loscocco
$500.00. Loscocco denied telling Aguilar-Osores to request a
continuance at his November 14, 2001 hearing to seek legal
representation. Loscocco also denied telling Aguilar-Osores that,
as Aguilar-Osores's legal representative, he would seek a second
continuance. According to Loscocco, he discussed the possibility
of applying for asylum with Aguilar-Osores, but Aguilar-Osores did
not claim to fear persecution, stating instead that he had come to
the United States for economic reasons. Aguilar-Osores did not
mention any threats against him, and stated that he was willing to
return to Peru but hoped to stay in the United States for as long
as possible in order to make money.5 Loscocco explained that
5
According to Loscocco, Aguilar-Osores also claimed to have
visited the United States in 1994, but returned to Peru.
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Aguilar-Osores was likely ineligible for asylum because (1)
Aguilar-Osores had not applied for it within one year of his
arrival in the United States, (2) the two exceptions to the one-
year deadline likely did not apply, and (3) Aguilar-Osores had
returned to Peru in 1994 after an earlier visit to the United
States. He also explained that any claim for withholding of
removal would not be likely to succeed since Aguilar-Osores would
have to satisfy a higher burden of proof than for asylum.
Loscocco stated that he and Aguilar-Osores also discussed
seeking permanent resident status through an alien labor
certification, but that Aguilar-Osores's illegal stay in the United
States barred that possibility. Loscocco also prepared Diversity
Visa Lottery applications for Aguilar-Osores and his wife in the
fall of 2002. Finally, Loscocco stated that, after the
November 20, 2002 hearing, Aguilar-Osores did not respond to his
calls and letter regarding his departure date, and that Aguilar-
Osores never raised the issue of asylum or withholding of removal
after the initial consultation. On February 24, 2004, the
Immigration Judge denied Aguilar-Osores's motion to reopen.
Aguilar-Osores timely appealed to the BIA, which affirmed the
Immigration Judge's decision on June 15, 2004. This appeal
followed.
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II. Discussion
Aguilar-Osores raises three claims: (1) that equitable
tolling should be applied to his motion to reopen because of
ineffective assistance of counsel claim, (2) that the BIA abused
its discretion in denying the motion to reopen so that he could
apply for asylum, and (3) that Aguilar-Osores was denied due
process because he was deprived of the opportunity to seek asylum
and withholding of removal before the Immigration Judge. We deal
with each in turn.
"The abuse of discretion standard governs judicial review
of the denial of a motion to reopen, regardless of the substantive
claim involved." Jupiter v. Ashcroft, 396 F.3d 487, 490 (1st Cir.
2005). We will find an abuse of discretion when "the BIA
misinterprets the law, or acts either arbitrarily or capriciously."
Canaveral Toban v. Ashcroft, 385 F.3d 40, 45 (1st Cir. 2004)
(internal quotation marks and citation omitted).
A. Ineffective Assistance of Counsel and Equitable Tolling
A motion to reopen before the Immigration Court "must be
filed within 90 days of the date of entry of a final administrative
order of removal, deportation, or exclusion, or on or before
September 30, 1996, whichever is later." 8 C.F.R. § 1003.23(b)(1).
The Immigration Judge entered the order for voluntary departure on
November 20, 2002. Aguilar-Osores filed his motion to reopen on
November 25, 2003, well past the ninety-day deadline set forth in
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8 C.F.R. § 1003.23(b)(1).6 Aguilar-Osores does not dispute this
fact, but instead argues that equitable tolling should be applied
to his case. We need not reach this issue, however, because even
if Aguilar-Osores's motion to reopen had been timely, he failed to
establish ineffective assistance of counsel.
An alien claiming ineffective assistance of counsel must
generally demonstrate prejudice, see Canaveral Toban, 385 F.3d at
46,7 which Aguilar-Osores has failed to do in the instant case.
The Immigration Judge, after evaluating Aguilar-Osores's
allegations and the response by Loscocco, stated that "this Court
does not find a valid ineffective assistance of counsel claim."
The Immigration Judge concluded that Loscocco "offered the
respondent [Aguilar-Osores] a comprehensive consultation disclosing
all the potential consequences of filing any form of relief." The
Immigration Judge also found that Aguilar-Osores had come to the
United States to earn money, that Loscocco provided him with
comprehensive and careful advice, and that it was Aguilar-Osores's
"uncoerced decision" to pursue voluntary departure. In other
words, the Immigration Judge found that Aguilar-Osores made a fully
6
Aguilar-Osores's brief appears to argue from the premise that he
had 180 days to file motion to reopen. However, the 180-day time
limit only applies where an order of removal or deportation has
been entered in absentia. See 8 C.F.R. § 1003.23(b)(4)(ii)-(iii).
Aguilar-Osores was present at his hearing on November 20, 2002, and
the ninety-day time limit therefore applies.
7
The requirement to demonstrate prejudices applies "except in the
extreme case." Canaveral Toban, 385 F.3d at 46.
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informed choice to pursue only voluntary departure, given the low
chances for success on an asylum claim and that Aguilar-Osores had
come to the United States for economic reasons.
The BIA affirmed this finding, noting that Aguilar-Osores
"did not establish a prima facie case for reopening as his former
counsel did not provide ineffective assistance." After carefully
reviewing the record, we do not believe that the BIA abused its
discretion in making this finding. We therefore find that Aguilar-
Osores has not shown prejudice and affirm the BIA's decision
regarding ineffective assistance of counsel.
B. Application for Asylum
The ninety-day limit to file a motion to reopen does not
apply "if the basis of the motion is to apply for asylum . . . and
is based on changed country conditions arising in the country of
nationality . . . if such evidence is material and was not
available and could not have been discovered or presented at the
previous proceeding." 8 C.F.R. § 1003.23(b)(4)(i). Aguilar-Osores
argues that the BIA abused its discretion in finding that he failed
to meet the standards set forth in 8 C.F.R. § 1003.23(b)(4)(i). We
disagree.
Aguilar-Osores argues that he presented evidence of the
resurgence of the Shining Path guerilla organization in Peru during
2002 and 2003. Since Aguilar-Osores worked for the anti-terrorist
unit as a policeman in Peru and was involved in thwarting several
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Shining Path operations, he argues that the Shining Path's
resurgence would put him in danger should he return to Peru. As
the BIA noted, the alleged resurgence of the Shining Path began at
least seven months prior to Aguilar-Osores's November 22, 2002
hearing. Accordingly, this evidence was either available or could
have been discovered or presented at the November 22, 2002 hearing.
Aguilar-Osores attempts to circumvent this problem by arguing that
this would have been impossible due to the alleged ineffective
assistance of counsel. However, as we have already noted above,
Loscocco did not provide ineffective assistance. We therefore
agree with the BIA that evidence of the Shining Path's resurgence
was available and could have been presented at Aguilar-Osores's
November 22, 2002 hearing, and find no abuse of discretion in the
BIA's decision regarding Aguilar-Osores's failure to meet the
requirements of 8 C.F.R. § 1003.23(b)(4)(i).
C. Due Process
Finally, Aguilar-Osores argues denial of due process
because, as a result of ineffective assistance of counsel, he was
deprived of the opportunity to seek asylum and withholding of
removal before the Immigration Judge.8 However, since Aguilar-
8
Aguilar-Osores failed to raise this claim before the Immigration
Judge and BIA. We could therefore find that he has waived this
claim. See Mendes v. INS, 197 F.3d 6, 12 (1st Cir. 1999).
However, we bypass the waiver issue because the claim is obviously
meritless.
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Osores has failed to prove ineffective assistance of counsel, see
supra Part II(A), we find no due process violation.
III. Conclusion
For the reasons stated above, the BIA's order is
affirmed.
Affirmed.
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