Bustillo v. Gonzales , 236 F. App'x 640 ( 2007 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2015
RODNEY ALFRED BUSTILLO,
Petitioner,
v.
ALBERTO R. GONZÁLES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Rodney Alfred Bustillo on brief pro se.
Richard Zanfardino, Trial Attorney, U.S. Department of
Justice, Anthony W. Norwood, Senior Litigation Counsel, Office of
Immigration Litigation, and Peter D. Keisler, Assistant Attorney
General, Civil Division, on brief for respondent.
June 27, 2007
Per Curiam. Petitioner Rodney Bustillo seeks review of
an order of the Board of Immigration Appeals (BIA) denying his
motion to reopen an October 2004 order of deportation. Such a
ruling will be upheld unless petitioner can show an abuse of
discretion--i.e., "that the BIA committed an error of law or
exercised its judgment in an arbitrary, capricious, or irrational
way." Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007). As no
such showing has been made here, the petition for review will be
denied.
Motions to reopen before the BIA "are limited both
numerically (one to a customer) and temporally (a ninety-day
window)." Id. (citing 8 C.F.R. § 1003.2(c)(2)). The BIA
justifiably denied relief on both such grounds. Petitioner had
earlier filed at least two other motions to reopen; the instant
request was filed some fifteen months after the deadline; equitable
tolling, even if available in this context, would be barred by
petitioner's lack of due diligence; and no other exceptional
circumstances are present. The BIA also cited a third ground:
petitioner's ineffective-assistance-of-counsel claim did not comply
with the threshold procedural requirements prescribed by Matter of
Lozada, 19 I. & N. Dec. 637 (BIA), review denied, 857 F.2d 10 (1st
Cir. 1988). This rationale, too, was supportable. See, e.g., Zeng
v. Gonzales, 436 F.3d 26, 31 (1st Cir. 2006).
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In this court, petitioner does not address these
procedural matters directly but rather attacks the substance of the
original BIA decision. That challenge is not only misdirected (as
it ignores the BIA's reasons for denying reopening) but also
misplaced. Contrary to petitioner's suggestion, counsel's failure
to file a brief with the BIA does not amount to prejudice per se.
See Hernandez v. Reno, 238 F.3d 50, 57 (1st Cir. 2001). Instead,
petitioner must establish "a reasonable probability that the result
of the proceedings would have been different" had a brief been
submitted. Id. at 56-57 (internal quotation marks omitted). Such
a showing has not been made here. And such a probability is not
otherwise discernible--particularly since the Immigration Judge had
spelled out the principal arguments in petitioner's favor, and a
family member had filed a brief on his behalf.
The petition for review is denied.
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