Pablo, Swedenborg v. Gonzales, Alberto R. , 187 F. App'x 650 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 19, 2005
Decided July 21, 2006
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 04-1070
SWEDENBORG PABLO and AMELIA Petition for Review
PABLO, of an Order of the
Petitioners, Board of Immigration Appeals
v. Nos. A72-114-957 and A72-114-958
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent.
ORDER
Swedenborg and Amelia Pablo petition for review of the Board of
Immigration Appeals’ order denying their motion to reopen as untimely. The Pablos
concede that their motion was filed more than 90 days after the Board’s final
decision, but they argue that their delay was justified because they did not receive
notice of the Board’s final decision. The Pablos also argue that they are not
statutorily barred from adjusting their status, because exceptional circumstances
excuse their failure to depart within the 30-day voluntary departure period. We
conclude that the Board acted within the bounds of its discretion, and we therefore
deny the petition for review.
No. 04-1070 Page 2
I
The Pablos, husband and wife, are Philippine nationals. Once placed in
immigration proceedings, they conceded removability, but they sought asylum and
withholding of removal based on Swedenborg’s fear of persecution by the police
because of his opposition to the Philippine government. He based this claim
primarily on one particular incident, when he was shot by the police at a rally he
had helped to organize to protest the eviction of indigent squatters from Pasay City.
He discovered afterwards, through a newspaper article, that the police were
searching for him, because they believed that he had instigated the violence. An
immigration judge denied the Pablos’ application for relief in August 1998, and they
appealed to the Board. While their appeal was pending, they moved in December
1999 from their home at 313 Stratford Circle, Streamwood, Illinois, to a new
residence at 1436 N. Greenmeadows Blvd., also in Streamwood. Neither the Pablos
nor their counsel at the time, Alexander Vrbanoff, informed the Board of this
change of address.
Evidently this was not Vrbanoff’s only dereliction of duty: the Supreme Court
of Illinois suspended him from practicing law in March 2001, and he filed a motion
with the Board asking permission to withdraw from all of his pending cases. Before
granting the motion, the Board required him to provide current addresses for all of
his clients with pending appeals. Vrbanoff incorrectly provided the Board with the
Pablos’ former address. So informed, the Board used the old address when, on
December 4, 2002, it mailed its decision to the Pablos affirming the IJ’s decision and
granting them voluntary departure within 30 days. The Pablos assert that they
never received the Board’s decision.
Vrbanoff was reinstated to practice in 2003, at which point he resumed his
representation of the Pablos. On March 27, 2003, believing that their appeal was
still pending before the Board, Vrbanoff moved the Board to remand the
proceedings so that they could adjust their status based on an approved third-
preference permanent resident visa. The Board treated this filing as a motion to
reopen and denied it as untimely, because it was filed more than 90 days after the
Board had issued its final decision. See 8 C.F.R. § 1003.2(c)(2).
Upon receiving this denial and learning that the Board had issued its final
decision in December 2002, Vrbanoff filed a second motion to reopen on behalf of the
Pablos, in which he informed the Board that the Pablos had never received notice of
the decision. Had they been notified, they argued, they “would have filed any
necessary motions or appellate documents prior to being time barred.” They
supported the second motion only with a copy of the client address list that Vrbanoff
No. 04-1070 Page 3
had given the Board when he withdrew from his pending cases. Later, the Pablos
filed a “Supplement to Motion to Re-open by Board Certification,” in which they
argued that changed conditions in the Philippines warranted reopening. They
supported the latter claim with an assertion that their son, who attended university
in the Philippines, had “received several oral and written death threats from
individuals claiming to be associated with the New People’s Army . . . a communist
insurgent group that the Philippine Government is unable to control.” To
corroborate their story, they provided a police report filed by their son in July 2003,
stating that family members of the New People’s Army physically attacked him in
May 2003 and began threatening his life in July 2003.
The Board denied the second motion to reopen. It noted that its final decision
was sent to the address that Vrbanoff had submitted and that “no evidence, such as
an affidavit, [had] been submitted to support the argument that the Board’s
decision was not received.” In addition, the Board found that the Pablos were
barred from adjusting their status because they had failed to depart within the
permitted period for voluntary departure, and they had presented no evidence that
their failure to do so was caused by exceptional circumstances. Finally, the Board
determined that the Pablos had failed to explain how their son’s police report
demonstrated changed conditions that would warrant reopening of their case. The
Pablos have petitioned for review from the Board’s two decisions refusing to reopen
their case.
II
The Pablos’ first argument on appeal appears to rely on the notion of
equitable tolling. Because they never received notice of the Board’s final decision of
December 2002, the 90-day period in which to file a motion to reopen was never
triggered, in their view. Moreover, they continue, the Board should have known
that they never received the final decision, because the administrative record
contains an envelope, bearing a postmark of the date of the Board’s decision, that
was returned to the Board as undeliverable. Under the circumstances, they claim,
they should be excused from complying with the ordinary deadlines.
We review the Board’s decision to deny a motion to reopen under the
deferential abuse of discretion standard. Patel v. Gonzales, 442 F.3d 1011, 1016 (7th
Cir. 2006). Time limits for motions to reopen are properly characterized as
procedural in nature, not jurisdictional, and thus they are in principle subject to
equitable tolling. See Patel, 442 F.3d at 1016. See also Chen v. Gonzales, 437 F.3d
267, 269 (2d Cir. 2006); Ray v. Gonzales, 439 F.3d 582, 589 (9th Cir. 2006); Pervaiz
v. Gonzales, 405 F.3d 488, 490 (7th Cir. 2005) (180-day time limit for motions to
reopen in absentia removal proceedings); Harchenko v. INS, 379 F.3d 405, 409-10
(6th Cir. 2004); Riley v. INS, 310 F.3d 1253, 1258 (10th Cir. 2002). Equitable tolling
No. 04-1070 Page 4
is warranted when the noncitizen could not have been expected to file his or her
claim earlier. Patel, 442 F.3d at 1016; Pervaiz, 405 F.3d at 490.
The Pablos have not presented a convincing reason to find that their lateness
should be excused. A noncitizen with an appeal pending before the Board has an
affirmative duty to provide the Board with written notice of a change of address
within five working days. 8 C.F.R. § 1003.38(e). Although the Pablos were
represented by counsel, “[l]awyers’ errors in civil proceedings are imputed to their
clients.” Ajose v. Gonzales, 408 F.3d 393, 395 (7th Cir. 2005) (tardy motion to reopen
not justified because counsel failed to inform the Board of his new mailing address).
Not only did Vrbanoff fail to update the Pablos’ address when they moved, but he
provided the Board with an incorrect address for them 19 months later when he
withdrew his representation. Although there is a narrow way in which persons in
removal proceedings can attempt to show ineffective assistance of counsel, see
Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), the Pablos have not attempted to
meet these requirements. Vrbanoff’s errors must therefore be imputed to them.
The Pablos also argue, as we understand them, that their failure to depart
voluntarily within the 30 days the Board allotted should be excused because of
exceptional circumstances. Because they were subject to deportation prior to the
effective date of the Illegal Immigration Reform and Immigrant Responsibility Act,
their failure voluntarily to depart is analyzed under the voluntary departure
statute in effect at that time. See IIRIRA, Pub. L. No. 104-208, § 309(c), 110 Stat.
3009-546, 625-627 (1996). Under the prior law, failure to comply with a voluntary
departure order could be excused if “exceptional circumstances” prevented the
noncitizen from leaving. See 8 U.S.C. § 1252b(e)(2)(A) (repealed 1996). The Pablos
argue that the attacks and death threats against their son constituted exceptional
circumstances. But the police reports that they submitted with the supplement to
their motion to reopen show that the attacks and threats postdated the Board’s
decision. The attacks allegedly began in May 2003, well after the Board’s final
decision of December 4, 2002.
Finding no abuse of the Board’s discretion in its evaluation of these
arguments, we DENY the petition for review.