Suarez-Sanchez v. Lynch , 640 F. App'x 756 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 8, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JOSE SUAREZ-SANCHEZ,
Petitioner,
v. Nos. 14-9557, 14-9615, 15-9518
(Petitions for Review)
LORETTA E. LYNCH, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
_________________________________
Jose Suarez-Sanchez seeks review of three orders by the Bureau of
Immigration Appeals (BIA) denying his motions to reopen removal proceedings.1
We deny his petitions for review.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Mr. Suarez-Sanchez filed three motions to reopen and a separate petition to
review each order denying them. This generated three separate cases on appeal,
which we have consolidated for procedural purposes.
I. Background
Mr. Suarez-Sanchez is a native and citizen of Mexico who came to the United
States illegally and became the subject of removal proceedings in 2009. He conceded
removability, but, with the help of an attorney, applied for cancellation of removal on
grounds that it would cause exceptional hardship to two of his children. See
8 U.S.C. § 1229b(b). Alternatively, he requested permission to depart voluntarily.
See 8 U.S.C. § 1229c. Following a hearing, an Immigration Judge (IJ) denied
Mr. Suarez-Sanchez’s application for cancellation of removal, but granted his request
for voluntary departure. The BIA dismissed his appeal.
Mr. Suarez-Sanchez did not leave the country as directed. Instead, he hired a
new attorney who filed a motion to reopen removal proceedings after the voluntary
departure period had expired. The BIA denied the motion. Mr. Suarez-Sanchez filed
two subsequent motions to reopen, which the BIA also denied.
As noted above, Mr. Suarez-Sanchez filed a petition to review each order
denying his motions to reopen.
II. Relevant Law
An alien may file one motion to reopen removal proceedings within 90 days
after the final order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i).
We review the denial of a motion to reopen for abuse of discretion. See
Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013). “The BIA abuses its
discretion when its decision provides no rational explanation, inexplicably departs
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from established policies, is devoid of any reasoning, or contains only summary or
conclusory statements.” Id. (internal quotation marks and citation omitted).
III. First Motion to Reopen
The BIA denied Mr. Suarez-Sanchez’s first motion to reopen because he failed
to leave the country within the 60-day voluntary departure period, making him
ineligible for cancellation of removal, see 8 U.S.C. § 1229c(b)(2), (d)(1)(B), which is
the relief he sought in the first place. Mr. Suarez-Sanchez did not file a motion to
reconsider, see 8 U.S.C. § 1229a(c)(6) (allowing an alien to file a motion to
reconsider within 30 days after a final order), or challenge the BIA’s ruling in his
subsequent motions to reopen. See Mena-Flores v. Holder, 776 F.3d 1152, 1161
(10th Cir. 2015); Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007). Instead,
he filed a petition for review in this court, where he argues for the first time that the
BIA violated his statutory and due process right to file a motion to reopen within 90
days. But Mr. Suarez-Sanchez failed to exhaust this argument, and thereby deprived
us of jurisdiction to consider it.2 See 8 U.S.C. § 1252(d)(1) (providing, “[a] court
may review a final order of removal only if . . . the alien has exhausted all
administrative remedies available”).
2
The exhaustion requirement does not apply to constitutional claims the BIA
lacks authority to resolve. Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094 (10th Cir.
2008). But although Mr. Suarez-Sanchez frames his argument in terms of
constitutional due process, it is a claim of procedural error that the BIA could have
remedied. See id; Akinwunmi v. I.N.S., 194 F.3d 1340, 1341 (10th Cir. 1999) (per
curiam).
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IV. Second Motion to Reopen
In his second motion to reopen, Mr. Suarez-Sanchez requested a new hearing
on grounds that his former attorney was ineffective. The BIA denied the motion
because it was filed more than 90 days after the final order of removal, making it
untimely. See 8 C.F.R. § 1003.2(c)(2). Mr. Suarez-Sanchez argues the BIA should
have equitably tolled the time limit and granted his motion.
“[T]o receive the benefit of equitable tolling, an alien must demonstrate not
only that the alien’s constitutional right to due process has been violated by the
conduct of counsel, but that the alien has exercised due diligence in pursuing the case
during the period the alien seeks to toll.” Mahamat v. Gonzales, 430 F.3d 1281, 1283
(10th Cir. 2005) (ellipsis and internal quotation marks omitted).
The BIA concluded Mr. Suarez-Sanchez had not shown due diligence in
pursuing his ineffective assistance claim, and specifically noted that he offered no
explanation for his failure to raise the issue in his first motion to reopen. Indeed,
aside from the conclusory statement that he “exercised due diligence in this matter,”
AR at 140, Mr. Suarez-Sanchez’s motion fails to describe in any detail his efforts to
pursue this claim before the limitation period expired. And as the BIA also
recognized, Mr. Suarez-Sanchez did not allege that his former attorney’s actions
caused any delay. Because the BIA provided a rational explanation for declining to
equitably toll the filing deadline, we conclude it did not abuse its discretion. See
Maatougui, 738 F.3d at 1239.
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V. Third Motion to Reopen
Mr. Suarez-Sanchez filed a petition to review the BIA’s order denying his
third motion to reopen (which the BIA construed as a motion to reconsider), but his
opening brief does not specifically address it. Rather, he argues only that the BIA
erred by denying his first and second motions to reopen. We therefore conclude
Mr. Suarez-Sanchez has forfeited any claims related to the third. See Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (stating, “the omission of an issue in
an opening brief generally forfeits appellate consideration of that issue”).
VI. Conclusion
We deny Mr. Suarez-Sanchez’s petitions for review.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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