Husni El-Gazawy v. Eric Holder, Jr. , 690 F.3d 852 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3582
H USNI M OH’D A LI E L-G AZAWY,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
On Petition for Review of a Final Order of
the Board of Immigration Appeals.
A099 025 945
A RGUED JUNE 1, 2012—D ECIDED A UGUST 16, 2012
Before F LAUM, R OVNER and W ILLIAMS, Circuit Judges.
R OVNER , Circuit Judge. Husni Moh’d Ali El-Gazawy
petitions for review of a decision of the Board of Immi-
gration Appeals (“BIA” or “Board”). As is often the
case in immigration matters, El-Gazawy’s path to this
court is a long and winding road. After straightening
out the twists and turns, we conclude that the petition
must be denied.
2 No. 11-3582
I.
El-Gazawy is a native and citizen of Jordan who
entered the United States in June 1990 as a non-immi-
grant visitor. He overstayed his visa and then failed to
appear for special registration by April 25, 2003, as re-
quired by the National Security Entry-Exit Registration
System (“NSEERS”) program. On August 10, 2006, the
Department of Homeland Security (“DHS”) served El-
Gazawy with a Notice to Appear, alleging that he was
removable from the United States because (1) he over-
stayed his visa, in violation of 8 U.S.C. §§ 1227(a)(1)(B);
and (2) he failed to comply with the NSEERS require-
ments, in violation of 8 U.S.C. §§ 1227(a)(3)(A) and 1305,
and 8 C.F.R. § 264.1(f)(4). At his first hearing before an
Immigration Judge (“IJ”) on October 26, 2006, El-Gazawy
was represented by a lawyer named Omar Abuzir. In
order to allow the recently retained attorney to prepare,
the case was continued to April 26, 2007. At that
hearing, El-Gazawy, through his lawyer, admitted to
the charges alleged in the Notice to Appear and con-
ceded removability. He also informed the IJ that he
would be seeking relief in the form of cancellation of
removal for non-permanent residents under 8 U.S.C.
§ 1229b(b), and, in the alternative, voluntary departure
under 8 U.S.C. § 1229c. The IJ allowed ninety days for El-
Gazawy to file the necessary paperwork for cancellation
of removal and voluntary departure, setting July 25,
2007 as the deadline. The IJ then set a hearing date of
April 30, 2008, and advised El-Gazawy that the conse-
quences of failing to file his fingerprints in a timely
fashion could result in denial of the requested relief.
No. 11-3582 3
On July 28, 2008, El-Gazawy, still represented by Abuzir,
appeared before a new IJ and requested a hearing date.
The record does not explain why the original schedule
was abandoned, 1 but the IJ set a new hearing date of
October 9, 2009, with a “call up date” two weeks before
that, on September 22, 2009, the last date to file all
relevant documents. That schedule allowed El-Gazawy
approximately fourteen months to complete and file the
necessary paperwork. The IJ asked counsel if he would
assist his client in obtaining and filing fingerprints in
the next 120 days, by November 25, 2008. Counsel
assented and the IJ warned counsel and El-Gazawy that
the failure to file the fingerprints timely could result in
a finding that the request for cancellation of removal
had been abandoned.
September 22, 2009 came and went with the IJ not
receiving any filing from El-Gazawy or his lawyer.2 On the
afternoon of Friday, October 2, El-Gazawy’s lawyer
1
The Oral Decision of the Immigration Judge, October 7, 2009,
R. at 319-24, reveals that the case originally was assigned to
Judge O. John Brahos. When Judge Brahos retired, the
matter was reassigned to Judge Carlos Cuevas. The reassign-
ment likely contributed to the schedule changes.
2
Although the IJ and the government’s attorney had not
received any filings, El-Gazawy includes in the record a
receipt demonstrating that he submitted his application for
cancellation of removal to the DHS on September 14, 2009,
within the deadline set by the IJ. R. at 26. We found no indica-
tion in the record that any of the supporting documentation
was submitted before the deadline set by the IJ.
4 No. 11-3582
submitted the documents to the court along with a
motion for leave to file the documents instanter. On
Wednesday, October 7, 2009, El-Gazawy appeared for
his hearing, still represented by Abuzir. As the hearing
began, Abuzir handed the IJ a file-stamped copy of the
papers he had filed on Friday, five days earlier. This
was the first time the IJ saw the papers; counsel for
DHS had not yet received a copy of the filing. Noting
that the government had no opportunity to review the
documents before the hearing, the IJ asked counsel why
he had not filed the papers earlier. Abuzir responded
that he had “just received” documents supporting the
application prior to filing them.3 He contended that the
late filing did not prejudice counsel for DHS because
this was a “straight-out cancellation.” Counsel explained
he had been waiting for birth certificates, a lawful perma-
nent resident card for El-Gazawy’s wife (he had married
in August), and evidence relating to El-Gazawy’s ten
years of physical presence in the United States.
The IJ noted that he had not received any indication
by September 22 that El-Gazawy wished to proceed with
3
In his motion for leave to file the documents instanter, Abuzir
contended that he inadvertently had not marked the deadline
for the filing of documents in his calendar, and became aware
on October 1, when preparing for the hearing, that he had
not filed the documents. Thus, his oral explanation for the
late filing—that he had been waiting for and had only just
received the documents—conflicted with his written reason for
the late filing—that he had inadvertently failed to mark the
deadline on his calendar.
No. 11-3582 5
his claim, that his docket was full, and that the absence
of any timely filing generally signaled that the alien
was abandoning the claim or that there had been a break-
down in the relationship between the alien and his
counsel. The IJ noted that approximately fourteen
months had passed since the July 2008 hearing where
the filing deadline had been set. The IJ cited regulations
at 8 C.F.R. § 1003.47(c) that provided that a failure to
file necessary documentation or comply with the dead-
line set by the IJ constitutes abandonment of the claim
unless good cause is shown for the failure. Counsel
noted that he was not requesting a continuance and that
he was prepared to go forward with presenting his sole
witness, El-Gazawy, to demonstrate the extreme and
unusual hardship that would befall his wife and three
U.S. citizen children if he were to be deported. The IJ
concluded that no good cause had been demonstrated
for the delay in filing the documents and he therefore
deemed the claim for cancellation abandoned. The IJ
granted voluntary departure, and after verifying that El-
Gazawy spoke English, the IJ directly addressed him,
detailing his appeal rights and the consequences of
failing to depart voluntarily from the United States
during the relevant time period. The IJ then returned to
Abuzir the copy of the documents that Abuzir handed
him at the beginning of the hearing, because Abuzir
told the IJ they were his only copy and because the IJ
did not wish to prejudice the government on appeal by
including in the record documents that DHS counsel
had not received.
6 No. 11-3582
On October 26, 2009, El-Gazawy, through Abuzir,
timely appealed the IJ’s oral decision to the BIA. In
his appeal, he contended that the IJ erred when he
deemed the application for cancellation of removal aban-
doned, and that the IJ abused his discretion in refusing
to find good cause for the delay in filing the documents.
On August 20, 2010, the BIA dismissed the appeal,
noting that an IJ has broad discretion to conduct and
control proceedings, and could properly dismiss as
waived any applications or supporting papers not filed
within the time limits established by the IJ. See 8 C.F.R.
§ 1003.31(c). The Board also commented that El-Gazawy
had failed to submit any evidence during the pendency
of the appeal that would establish prima facie eligibility
for cancellation of removal. Finally, the Board declined
to reinstate El-Gazawy’s voluntary departure period
because El-Gazawy had submitted no proof that he
had paid the requisite $500 bond.
On September 20, 2010, still represented by attorney
Abuzir, El-Gazawy filed a Motion to Reconsider and
Remand (hereafter “First Motion to Reconsider”) with
the BIA. In this motion, he asserted that the BIA made
two errors of fact in its August 20, 2010 decision. First,
he contended that the BIA erred in its finding that the
filing due date of September 22, 2009 was not in dis-
pute. To the contrary, he maintained that the IJ’s instruc-
tions regarding the cut-off date for filing documents
were unclear, and no clear due date had been set for the
application. He conceded that the IJ warned El-Gazawy
that his application would be deemed abandoned if
No. 11-3582 7
he failed to supply his fingerprints by November 25,
2008, but he asserted that he complied with that dead-
line. In contrast, no similar warning was given for
failing to timely file the application itself. As for the
second factual error asserted, El-Gazawy challenged the
BIA’s finding that he had failed to submit evidence of
his prima facie eligibility for cancellation of removal. He
submitted the application and supporting documents
on October 2, 2009, and they were file-stamped and
made part of the record on that date.
On April 6, 2011, before the BIA ruled on this First
Motion to Reconsider, El-Gazawy secured a new lawyer
and filed a document titled “Respondent’s Supple-
mental Motion to Reconsider, Reopen and Remand
Based on Matter of Lozada” (hereafter “Motion to Reopen”).
In the Motion to Reopen, El-Gazawy’s new counsel
argued that the original lawyer’s failure to timely
file the application for cancellation of removal con-
stituted ineffective assistance of counsel. This ineffective
assistance prejudiced El-Gazawy because he was not
able to establish his eligibility for cancellation of re-
moval. New counsel also contended that both El-
Gazawy and the new counsel exercised due diligence in
filing the Motion to Reopen and that equitable tolling
should therefore apply to extend the usual ninety-day
time limit for filing motions to reopen. In support of the
argument for equitable tolling, El-Gazawy submitted
an affidavit stating that Abuzir failed to file his applica-
tion within the time set by the IJ, that on October 7,
2009, the IJ deemed therefore his application aban-
doned, and that he subsequently hired a new lawyer
8 No. 11-3582
to remedy the ineffective assistance of his previous coun-
sel. El-Gazawy also averred that he had “given notice”
to his prior attorney and had filed a claim with the
Illinois Attorney Registration and Disciplinary Commis-
sion (“ARDC”).
On May 11, 2011, the BIA denied both the First Motion
to Reconsider and the Motion to Reopen. The BIA noted
first that the Motion to Reopen was untimely. The
final order had been entered by the Board on August 20,
2010, and the Motion to Reopen was not filed until April 6,
2011, well past the ninety-day time limit for filing
motions to reopen. The Board concluded that El-
Gazawy’s Motion to Reopen did not qualify for
equitable tolling because he failed to demonstrate due
diligence in filing the motion. More than seven months
passed between the final order and the filing of the
Motion to Reopen, and yet El-Gazawy provided no evi-
dence regarding the steps he took to protect his rights
during those seven months. The BIA also found that El-
Gazawy did not comply with the requirements of Matter
of Lozada, 19 I. & N. Dec. 637 (BIA 1988), because he did
not inform his prior counsel of his intention to file the
Motion to Reopen, and he did not provide his former
counsel with an adequate opportunity to respond. The
BIA noted that El-Gazawy filed his complaint with the
ARDC on April 5, 2011, and filed the Motion to Reopen
one day later, on April 6, 2011. The BIA also determined
that El-Gazawy had not established prejudice for his
ineffective assistance of counsel claim because he had
not articulated how his wife and children would suffer
exceptional and extremely unusual hardship upon his
No. 11-3582 9
removal from the United States. Finally, the BIA denied
the First Motion to Reconsider because El-Gazawy
simply raised arguments that had already been rejected
and because his claims of factual error were not sup-
ported by the record.
El-Gazawy’s new counsel then filed a timely “Respon-
dent’s Motion to Reconsider” (hereafter “Second Motion
to Reconsider”) on June 9, 2011. This time, he argued
that the BIA erred in four ways. First, he contended that
his Motion to Reopen was timely, or in the alternative,
qualified for equitable tolling. Second, he claimed that
he exercised due diligence in filing the Motion to
Reopen considering the time it took to find new counsel,
obtain the file from prior counsel, research the issues,
and decide with the client an appropriate legal strategy.
Third, El-Gazawy asserted that he was prejudiced
because he was not able to establish his eligibility for
cancellation of removal. And fourth, he argued that a
claimant need not demonstrate that he would win his
case in order to establish prejudice, but rather need
only show that he was not afforded an opportunity
to present his case because of his counsel’s ineffective
assistance.
The BIA denied the Second Motion to Reconsider on
October 20, 2011, rejecting again the arguments that
were duplicative of claims made in earlier motions. The
BIA also rejected the new claim that the Motion to
Reopen was timely because it was somehow “boot-
strapped” to the earlier-filed First Motion to Reconsider,
a claim lacking in any legal support. El-Gazawy now
petitions for our review.
10 No. 11-3582
II.
In his petition for review, El-Gazawy contends that
the BIA misconstrued the standards for analyzing a
motion to reconsider, erroneously requiring him to
raise new facts or new legal arguments. He also argues
that the BIA erred in finding the Motion to Reopen un-
timely because it was filed while prior counsel’s
timely First Motion to Reconsider was pending. In the
alternative, he maintains that the time for filing the
Motion to Reopen should have been equitably tolled due
to the ineffective assistance provided by his first lawyer.
A.
Because the filing of a motion to reconsider does not
toll the time in which to seek review of the denial of a
motion to reopen or dismissal of the underlying appeal,
the only matter before us is the BIA’s October 20,
2011 denial of El-Gazawy’s Second Motion to Recon-
sider. Stone v. INS, 514 U.S. 386, 405 (1995) (the finality
of a removal order is not affected by the subsequent
filing of a motion to reconsider); Muratoski v. Holder,
622 F.3d 824, 829-30 (7th Cir. 2010) (a motion to recon-
sider does not toll the time to seek judicial review);
Rehman v. Gonzales, 441 F.3d 506, 508 (7th Cir. 2006) (a
motion asking the BIA to reconsider its decision does not
toll the time to seek judicial review). Under the same
authority, we may not review the Board’s May 11, 2011
decision denying both the Motion to Reopen and the
First Motion to Reconsider. Asere v. Gonzales, 439 F.3d
378, 380 (7th Cir. 2006) (the thirty-day limit is jurisdic-
No. 11-3582 11
tional and therefore may not be excused). We review
the Board’s denial of El-Gazawy’s Second Motion to
Reconsider for abuse of discretion. Muratoski, 622 F.3d
830; Hernandez-Baena v. Gonzales, 417 F.3d 720, 724
(7th Cir. 2005); Ali v. Ashcroft, 395 F.3d 722, 731 (7th
Cir. 2005).
B.
We begin with El-Gazawy’s argument that the BIA
erred in finding the Motion to Reopen untimely because
it was filed while prior counsel’s timely First Motion
to Reconsider was pending. El-Gazawy bases this argu-
ment on the regulations governing the BIA, which provide:
A motion to reopen a decision rendered by an Im-
migration Judge or Service officer that is pending
when an appeal is filed, or that is filed while an
appeal is pending before the Board, may be deemed
a motion to remand for further proceedings before
the Immigration Judge or the Service officer from
whose decision the appeal was taken. Such motion
may be consolidated with, and considered by the
Board in connection with, the appeal to the Board.
8 C.F.R. § 1003.2(c)(4). The government responds first
that El-Gazawy failed to exhaust this argument before
the BIA, and that we should therefore decline to review
it. See 8 U.S.C. § 1252(d)(1) (the “court may review a final
order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of
right”); Ghaffar v. Mukasey, 551 F.3d 651, 655 (7th Cir.
12 No. 11-3582
2008) (“[a]n alien ordered removed from this country is
required to exhaust the administrative remedies
available to him before seeking judicial review of the
removal order”). But see Arobelidze v. Holder, 653 F.3d
513, 517 (7th Cir. 2011) (although the obligation to
exhaust usually forecloses a petitioner from raising an
issue in federal court that was not raised before the im-
migration tribunal, there are a number of exceptions to
this non-jurisdictional rule).
El-Gazawy concedes that he failed to cite this specific
provision of the regulations in his arguments before the
BIA, but contends that he nonetheless adequately pre-
served the issue in his Second Motion to Reconsider. In
the “Issues presented” section of the Second Motion, El-
Gazawy stated that the “supplemental motion based on
ineffective assistance of counsel was timely. In the alter-
native, the motion qualifies for equitable tolling.” In the
“Analysis” section of the Second Motion, we find
the entirety of the timeliness argument under the
heading “Motion was Timely”:
27. As supplemental motion, was bootstrapped to
filing of Sept. 2010. No new time addition.
R. at 17, 21. The BIA characterized this as an argument
“without citation or supporting authority . . . that the
untimely motion to reopen was ‘bootstrapped’ to
the prior motion to reconsider.” BIA October 20,
2011 Order at 1. To the absence of citation or sup-
porting authority, we add that the argument also lacked
grammatical structure, consisting only of two sentence
fragments. The BIA rejected this largely unformed argu-
No. 11-3582 13
ment because the “inclusion of the term ‘supplemental’
in the title of a motion [cannot] convert an untimely
motion into a timely motion.” BIA October 20, 2011
Order at 1. Although the BIA recognized that El-
Gazawy was attempting to link the Motion to Reopen to
the timely-filed First Motion to Reconsider, the BIA was
not on notice that El-Gazawy was invoking 8 C.F.R.
§ 1003.2(c)(4) to do so. El-Gazawy contends that his
failure to cite the particular regulation is not determina-
tive because the BIA should be familiar with its own
regulations. Although it is true that an agency should
be familiar with its own regulations, a petitioner still
must present an argument based on those regulations
with enough clarity to put the agency on notice of the
issue being decided. The exhaustion requirement “gives
the Board an opportunity to apply its specialized knowl-
edge and experience to the matter, it provides the peti-
tioner with the relief requested in the first instance, and
it provides us with reasoning to review.” Arobelidze, 653
F.3d at 517. If the BIA had addressed this issue on its
own, all of these concerns would have been satisfied,
and we could treat the issue as exhausted and there-
fore reviewable. But the argument that El-Gazawy pre-
sented was simply too thin for the BIA to recognize it
in the form the petitioner now urges us to consider.
Because the issue that El-Gazawy now raises was not
presented in a recognizable manner before the BIA, and
because the BIA did not rule on this argument, we con-
clude that El-Gazawy failed to exhaust his administra-
tive remedies.
14 No. 11-3582
C.
In any case, there is no error in the BIA’s conclusion
that the Motion to Reopen was untimely. A motion to
reopen must be filed no later than ninety days after the
date of entry of a final administrative order of removal.
8 U.S.C. § 1229a(c)(7)(C)(i); Sarmiento v. Holder, 680 F.3d
799, 801 (7th Cir. 2012). The BIA has interpreted the date
of final administrative order of removal as being the
date that the BIA dismissed the appeal of an IJ’s
removal order, and not the date on which the BIA ruled
on a motion to reconsider. Sarmiento, 680 F.3d at 802
(quoting 8 C.F.R. § 1003.2(c)(2)) (the Board’s regulation
corresponding to § 1229a(c)(7)(C)(i) explains that a
motion to reopen “must be filed no later than 90 days
after the date on which the final administrative deci-
sion was rendered in the proceeding sought to be re-
opened”). “To conclude otherwise would allow aliens
to receive extra time to move to reopen their cases by
the simple expedient of filing frivolous motions to recon-
sider.” Sarmiento, 680 F.3d at 802. In this case, the final
administrative decision was August 20, 2010, when the
Board dismissed the appeal of the IJ’s removal order.
The Motion to Reopen was not filed until April 6, 2011,
well after the ninety-day deadline.
El-Gazawy contends that his situation is distin-
guishable from Sarmiento because he argued before the
BIA, and continues to maintain in his petition in this
court, that he qualifies for equitable tolling due to the
ineffective assistance of his first lawyer. See Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988). The BIA rejected
No. 11-3582 15
this claim (twice) because El-Gazawy failed to demon-
strate that he exercised due diligence in seeking relief
and also failed to show that he suffered prejudice as
a result of his lawyer’s deficient performance.
In order to succeed on a claim for equitable tolling, a
petitioner must demonstrate due diligence. Johnson v.
Gonzales, 478 F.3d 795, 799 (7th Cir. 2007); Patel v. Gonzales,
442 F.3d 1011, 1016 (7th Cir. 2006). In assessing due dili-
gence in the context of ineffective assistance of counsel,
the claimant must demonstrate that he could not reason-
ably have been expected to file earlier. Johnson, 478 F.3d
at 799; Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir.
2005). See also Patel, 442 F.3d at 1016 (equitable tolling
requires a court to consider whether a reasonable person
in the claimant’s position would have been aware of the
possibility that he had suffered an injury). In support of
his claim of due diligence, El-Gazawy attached an
affidavit to his Motion to Reopen (“Affidavit”). In the
April 5, 2011 Affidavit, El-Gazawy simply asserted that
(1) he hired Abuzir; (2) that Abuzir failed to meet the
IJ’s September 22, 2009 deadline for filing his applica-
tion for cancellation of removal and supporting documen-
tation; (3) that the IJ deemed his application abandoned
and ordered him removed on October 7, 2009; (4) that he
“subsequently” hired new lawyers to help him remedy
the ineffectiveness of his prior counsel; and (5) that he
had given notice to his prior attorney and filed a claim
against the attorney with the ARDC. El-Gazawy did not
state when he discovered that his lawyer was not per-
forming competently or what steps he took in the
interim to protect his interests. He offers no evidence
16 No. 11-3582
regarding what happened between the IJ’s order of re-
moval on October 7, 2009, and the April 6, 2011 filing of the
Motion to Reopen. In light of his failure to offer any
support for his claim that he acted diligently to preserve
his rights during that time, we cannot say that the
BIA abused its discretion in finding that El-Gazawy
failed to meet the standard for due diligence.
Finally, even if El-Gazawy had exercised due
diligence, he has never demonstrated that Abuzir’s
actions prejudiced him. El-Gazawy takes the position
that he has adequately demonstrated prejudice by
showing that he was denied his day in court, that he
was denied an opportunity to present his evidence in
support of his application for cancellation of removal.
But to this day, El-Gazawy has not proffered or
described any of the evidence that he was prevented
from presenting. In order to qualify for cancellation of
removal, he was required to demonstrate that his wife
and children would have suffered “exceptional and
extremely unusual hardship.” See 8 U.S.C. § 1229b(b)(1)(D)
(“The Attorney General may cancel removal of, and
adjust to the status of an alien lawfully admitted for
permanent residence, an alien who is inadmissible or
deportable from the United States if the alien . . . estab-
lishes that removal would result in exceptional and
extremely unusual hardship to the alien’s spouse, parent,
or child, who is a citizen of the United States or an
alien lawfully admitted for permanent residence”). With-
out any evidence that he could have succeeded on the
merits, his attorney’s incompetence did not prejudice
him. See Rapheal v. Mukasey, 533 F.3d 521, 533 (7th Cir.
No. 11-3582 17
2008) (prejudice means that the lack of a fair hearing
actually had the potential for affecting the outcome of
the proceedings); Hamid v. Gonzales, 417 F.3d 642, 646-47
(7th Cir. 2005) (applicant’s failure to allege excluded
testimony that would potentially affect outcome of
hearing was fatal to due process claim). Because El-
Gazawy has never articulated what evidence he would
have presented to show that his removal would have
caused exceptional and extremely unusual hardship for
his wife and children, we cannot conclude that the
BIA abused its discretion in denying his Second Motion
to Reconsider.
III.
We have reviewed El-Gazawy’s remaining argu-
ments and find no merit in them. For the reasons stated
above, El-Gazawy’s petition for review is
D ENIED.
8-16-12