Panova-Bohannan v. Gonzales , 157 F. App'x 706 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 9, 2005
Charles R. Fulbruge III
Clerk
No. 04-60540
Summary Calendar
ANGELIKA PANOVA-BOHANNAN,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A77-802-997
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Angelika Panova-Bohannan, a native and citizen of Uzbekistan,
has petitioned this Court for review of the order of the Board of
Immigration Appeals denying her untimely motion to reopen removal
proceedings. The motion was filed on January 29, 2004, more than
one year after the expiration of the ninety-day limitation period,1
*
Pursuant to the 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1
8 U.S.C. § 1229a(c)(7)(C)(i) states, in pertinent part:
...the motion to reopen shall be filed within 90 days of
the date of entry of a final administrative order of
removal.
The BIA issued its final decision on October 17, 2002.
and Panova does not show that any other limitation period applies.
Therefore, Panova failed to exhaust her administrative remedies,
and this Court has no jurisdiction to review the BIA’s denial of
Panova’s untimely motion to reopen her case because there is no
“meaningful standard against which to review” the decision not to
reopen.2
However, jurisdiction over the BIA’s denial of a timely motion
to reopen removal proceedings is proper.3 Panova contends that her
motion to reopen should be deemed timely under the doctrine of
equitable tolling, due to the exceptional circumstance created by
the ineffective assistance of her former counsel.4 We review the
BIA's decisions regarding a timely motion to reopen removal
proceedings for an abuse of discretion.5 Assuming, without
deciding, the applicability of equitable tolling to the limitation
2
See Enriquez-Alvarado v. Aschcroft, 371 F.3d 246, 249 (5th Cir. 2004)
(quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)). “A denial of an untimely
motion to reopen has the same legal effect as a failure to exercise sua sponte
authority to reopen a case.” Id. at n. 3.
3
Id. at 249.
4
Although equitable tolling is a "discretionary doctrine that turns on
the facts and circumstances of a particular case," we ordinarily "draw on general
principles to guide when equitable tolling is appropriate." Fierro v. Cockrell,
294 F.3d 674 (5th Cir. 2002) (quoting Fisher v. Johnson, 174 F.3d 710, 713 (5th
Cir. 1999)). Equitable tolling is not invoked by “garden variety claim of
excusable neglect.” Irwin v. Dep’t of Veteran Affairs, 498 U.S. 89, 96 (1990),
cited in, Rashidi v. American President Lines, 96 F.3d 124 (5th Cir. 1996).
Thus, equitable tolling will be warranted only in "rare and exceptional
circumstances." U.S. v. English, 400 F.3d 273, 275 (5th Cir. 2005).
5
Efe v. Ashcroft, 293 F.3d 899, 904 (5th Cir. 2002). A district court’s
decision to invoke equitable tolling, as applied in habeas cases, is also
reviewed for abuse of discretion. Molo v. Johnson, 207 F.3d 773, 775 (5th Cir.
2000).
period at issue in this case,6 we conclude that Panova would not be
entitled to relief. The application of equitable tolling requires
due diligence during the interstitial period after the passing of
the deadline,7 and we cannot conclude that the BIA abused its
discretion both in finding that Panova had failed to act with due
diligence to protect her rights and, consequently, in denying her
motion to reopen the removal proceedings.
Even if the doctrine of equitable tolling were applied in this
instance, Panova’s argument fails on the substantive inquiry into
due diligence. Panova filed her motion to reopen, by new counsel,
469 days after the final administrative order. Panova contends,
however, that she did not have a cognizable exceptional
circumstance that would warrant equitable tolling and reopening the
removal proceeding until after this Court decided her first appeal,
brought by former counsel on September 11, 2003.8 Agreeing that
6
There is discord among the circuits, as to equitable tolling of
statutory deadlines for ineffective assistance of counsel in immigration cases.
Compare Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000) (holding “that the filing
deadline for motions to reopen may be equitably tolled,” but petitioner did not
exercise due diligence in pursuing his claim), Borges v. Gonzales, 402 F.3d 398,
406 (3d Cir. 2005) (holding that the 180-day limitation for reopening in absentia
order of removal could be tolled due to counsel’s fraud), Lopez v. INS, 184 F.3d
1097, 1100 (9th Cir. 1999) (finding that the 180-day filing deadline provided in
8 U.S.C. § 1229a(b)(5)(c)(i) is subject to equitable tolling), and Riley v. INS,
310 F.3d 1253, 1258 (10th Cir. 2002) with Anin v. Reno, 188 F.3d 1273, 1278 (11th
Cir. 1999) (finding that the 180-day statute of limitations provided in 8 U.S.C.§
1229a(b)(5)(c)(i)is jurisdictional and mandatory) and Torres v. INS, 144 F.3d
472, 475 (7th Cir. 1998) (stating that “the judge-made doctrines of...and tolling
are not applied to deadlines for taking appeals...”).
7
See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984)
(requiring diligence for invocation of equitable tolling).
8
In Panova’s first appeal, she asserted that the IJ erred in denying her
motion to terminate the removal proceedings in order to allow her to apply for
an adjustment of status. This Court denied her petition for review, stating that
the IJ did not have the authority to terminate the removal proceedings on the
the deadline was not tolled due to the pendency of the appeal,
Panova argues that she acted diligently from the time that she
became aware of the alleged exceptional circumstances until the
time that she filed the motion to reopen–a span of 140 days.9
Therefore, she argues that equitable tolling is appropriate, as she
exercised due diligence once the alleged ineffective assistance of
counsel became apparent.
In response to this argument, the BIA, even considering the
lesser four-month filing delay, still concluded that Panova “did
not adequately explain why it took more than 4 months after the
court dismissed her case to file the pending motion.”10 The record
does not demonstrate that the BIA abused its discretion in denying
Panova’s motion to reopen the removal proceedings, for lack of due
diligence.
The petition for review is DENIED.
requested grounds. 74 Fed. Appx. 424 (5th Cir. 2003).
9
Panova’s equitable tolling claim is premised on allegations of
ineffective assistance of counsel. Ineffective assistance of counsel can lead
to a due process violation in a removal proceeding. Goonswan v. Ashcroft, 252
F.3d 383, 385 n.2 (5th Cir. 2001). Such an assertion requires a showing of
prejudice. Strickland v. Washington, 466 U.S. 668 (1984); see also Alexander
v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985) (stating that conclusory
allegations of prejudice present no cognizable claim of ineffective assistance
of counsel). Panova asserts that her prior attorney did not file a motion to
reopen, neglected to file a status adjustment, an I-485 form, which would have
demonstrated that she was remarried to a U.S. citizen and entitled to permanent
resident status, and also failed to file a cancellation of removal based on the
physical abuse allegedly suffered at the hands of her former husband (8 U.S.C.
§1229b(b)(2)). We need not decide whether such omissions were prejudicial and,
therefore, do not decide whether such omissions constitute the exceptional
circumstances of equitable tolling.
10
Panova asserts common difficulties of litigation: that she had
difficulty procuring her file from her former attorney, that she needed time to
retain new counsel, and that the new attorney needed time to fulfill the
requirements–enumerated in Matter of Lozada–for alleging ineffective assistance
of counsel. 19 I. & N. Dec. 637 (B.I.A. 1988).