Petar Yusev v. Jeff Sessions , 851 F.3d 763 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16-1338 & 16-2242
PETAR B. YUSEV and KATERINA G. YUSEVA,
Petitioners,
v.
JEFF SESSIONS, Attorney General of the United States,
Respondent.
____________________
Petitions for Review of Orders of the
Board of Immigration Appeals.
Nos. A089-070-635 & A089-070-636.
____________________
ARGUED FEBRUARY 21, 2017 — DECIDED MARCH 23, 2017
____________________
Before WOOD, Chief Judge, and FLAUM and ROVNER, Circuit
Judges.
WOOD, Chief Judge. Petar Yusev and his wife, Katerina Yu-
seva, have lived in the United States since 2005. They man-
aged this by overstaying their initial one-year non-immigrant
visas. On August 16, 2007, some 18 months after their initial
entry, they applied for asylum, withholding of removal, and
relief under the Convention Against Torture (CAT). They are
2 Nos. 16-1338 & 16-2242
citizens of Bulgaria, since 2007 a Member State of the Euro-
pean Union, but they belong to its Macedonian minority and
assert that they have been persecuted on that basis. First an
immigration judge, and later the Board of Immigration Ap-
peals (BIA or Board), turned down their requests. The peti-
tions for review now before us challenge the Board’s refusal
to reopen their case based on their attorney’s alleged ineffec-
tiveness, and its refusal to reconsider the ruling on the motion
to reopen. Finding no abuse of discretion in either of the
Board’s decisions, we deny the petitions for review.
I
In their original petitions for asylum and related relief, the
Yusevs asserted that they had been members of the United
Macedonian Organization Ilinden (UMOI), a party devoted to
the rights of ethnic Macedonians (though characterized by the
Bulgarian Constitutional Court as a separatist party that
could be, and was, banned). They testified about two occa-
sions on which the police assaulted them. In addition, they
asserted, the police came looking for them at their home in
2006 and were still looking as of 2007. They also submitted
reports detailing Bulgaria’s poor treatment of Macedonians.
An immigration judge (IJ) denied all relief in a 2013 decision.
The judge found that they had missed the one-year deadline
for filing an asylum application, 8 U.S.C. § 1158(a)(2)(B), and
that their tardiness was not excused by changed circum-
stances in Bulgaria or other extraordinary circumstances, id.
§ 1158(a)(2)(D). The judge denied their request for withhold-
ing and CAT protection on the merits, finding that their expe-
riences did not meet the test for past persecution, nor did they
support a finding of likely persecution in the future. The BIA
Nos. 16-1338 & 16-2242 3
affirmed and denied their motion for reconsideration. See Yu-
sev v. Lynch, 643 F. App’x 603 (7th Cir. 2016) (Yusev I).
While the Yusevs were pursuing their petition for review
from the denial of their motion for reconsideration in Yusev I,
they also were proceeding along a second track. Represented
by their current counsel, Daniel Thomann, they filed a motion
with the Board to reopen the proceedings based on their first
lawyer’s ineffectiveness. The Board found the motion to re-
open untimely, and it rejected the argument that counsel’s in-
effectiveness excused the delay. Once again, the Yusevs filed
a motion to reconsider, and once again, that motion was de-
nied. They have now filed two petitions for review, one from
the denial of reopening and one from the refusal to reconsider.
Our review of both these decisions is deferential; we may
grant relief only if the Board abused its discretion. Reyes-
Cornejo v. Holder, 734 F.3d 636, 647 (7th Cir. 2013); El-Gazawy
v. Holder, 690 F.3d 852, 857 (7th Cir. 2012).
II
A
We turn first to the Board’s denial of the motion to reopen
filed by Attorney Thomann on September 1, 2015. This mo-
tion was based on the alleged ineffectiveness of the Yusevs’
prior counsel, Alexander Vrbanoff. Non-citizens facing re-
moval are allowed to file one motion to reopen within 90 days
of a final order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i). In
the Yusevs’ case, the Board affirmed the original IJ’s decision
ordering removal through an order dated April 7, 2015. Mud-
dying the waters slightly is the fact that this was not the
Board’s last word on their original appeal. Instead, on June 17,
2015, the Board partially reopened their case to reinstate the
4 Nos. 16-1338 & 16-2242
privilege of voluntary departure. It did so because Vrbanoff
had forgotten to submit proof of their payment of a voluntary
departure bond; they actually had paid, and so the Board cor-
rected its earlier decision in this minor respect.
The Yusevs argue that their 90-day period for the motion
to reopen did not begin running until June 17. If that were
true, then their motion would have been timely, as it was filed
on September 2, 2015. But that is not the way things work. In
Sarmiento v. Holder, 680 F.3d 799 (7th Cir. 2012), we joined the
Fifth and Ninth Circuits in holding that motions to reopen
must be “filed within 90 days of the specific proceeding being
challenged,” which here is the Board’s April 7, 2015 order af-
firming the IJ’s decision to require removal. Id. at 802 (empha-
sis added). That is the order to which the Yusevs object; they
have no quarrel with the Board’s decision to reinstate volun-
tary departure on June 17. See also El-Gazawy, 690 F.3d at 859.
If the Yusevs’ proposed rule were to be adopted, we might as
well write the time limits out of the statute. Any petitioner
wanting some extra time could just file a new motion to re-
consider and have the clock reset. This is a position we cannot
accept. As we noted in Almutairi v. Holder, 722 F.3d 996 (7th
Cir. 2013), “an order from the BIA resolving everything except
an issue relating to voluntary departure” qualifies as a final
decision. Id. at 1001. The Board thus committed no error when
it concluded that the September 2, 2015 motion to reopen was
untimely.
That brings us to the question whether the Board abused
its discretion in concluding that nothing excused the late fil-
ing. In principle, equitable tolling can excuse this kind of fail-
ure. Yuan Gao v. Mukasey, 519 F.3d 376, 377 (7th Cir. 2008). One
Nos. 16-1338 & 16-2242 5
reason that might support equitable tolling is ineffective as-
sistance of counsel. El-Gazawy, 690 F.3d at 859. But this is not
easy to demonstrate in an immigration proceeding: whatever
right to effective counsel exists is present only because of the
immigration statutes, and ultimately the Due Process Clause
of the Fifth Amendment to the U.S. Constitution; the more fa-
miliar Sixth Amendment right is inapplicable because it is
limited to criminal proceedings.
Equitable tolling based on counsel’s performance requires,
at a minimum, that the petitioner show that he exercised due
diligence in seeking relief and that he suffered prejudice as a
result of the lawyer’s deficient performance. Id. The due dili-
gence requirement is satisfied if the petitioner can show that
“he could not reasonably have been expected to file earlier.”
Id. Prejudice is established if “the error likely affected the re-
sult of the proceedings.” Alimi v. Gonzales, 489 F.3d 829, 834
(7th Cir. 2007).
The Yusevs’ showing falls short on both these points.
Through Attorney Thomann, they filed a motion to recon-
sider on May 8, 2015, 31 days after the Board’s April 7 deci-
sion. That motion briefly mentions that the Yusevs intended
to pursue an ineffectiveness claim against Vrbanoff and that
they were investigating the issue. This was too tentative to be
of any help. Moreover, the only actions they eventually took
toward this end were to send Vrbanoff a rather general letter
expressing displeasure with his performance and to submit a
complaint to the Illinois bar after the deadline for the motion
to reopen had expired. The Board was not required to view
this as the diligence it has a right to expect.
6 Nos. 16-1338 & 16-2242
Their showing of prejudice was no better. The crux of their
complaint against Vrbanoff was that he had failed to intro-
duce additional evidence that they believe would have tipped
the balance in their favor. Here is what they contend Vrbanoff
should have added:
 State Department country reports for Bulgaria for
2005, 2006, and 2007
 Reports from the Bulgarian Helsinki Committee (a
local human rights group) from 2007, 2013, and
2014
 A United Nations report from 2011
 A case from the European Court of Human Rights
from 2005
These documents do no more than repeat the message that
was already before the Board in the evidence that Vrbanoff
did introduce. That message was that Macedonians are not a
state-recognized ethnicity; that they are barred from forming
ethnic pressure groups; and that they face discrimination as
well as occasional police harassment. The Board’s April 7 de-
cision reflects its awareness of these arguments and thus rein-
forces the fact that the absence of the “new” evidence did not
prejudice the Yusevs.
Oddly, the Yusevs also argue that Vrbanoff was ineffective
because he failed to argue that Bulgaria’s accession to the Eu-
ropean Union in 2007 constituted a changed circumstance for
the worse and thus supported their tardy claims. We have
trouble taking this seriously, given the fact that citizens of
every Member State of the European Union, including now
Bulgaria, are free to move to any other State, see Romania and
Bulgaria EU Migration Restrictions Lifted, BBC NEWS (Jan. 1,
Nos. 16-1338 & 16-2242 7
2014), http://www.bbc.com/news/world-europe-25565302.
They also enjoy the full panoply of rights under both the trea-
ties underlying the EU and the European Human Rights Con-
vention. In any event, there is no evidence that the situation
in Bulgaria changed for the worse after its accession to the EU.
The UMOI was banned in 2000, remained banned while Bul-
garia was moving through the accession process, and is still
outlawed today. The police have harassed Macedonians
throughout the relevant period. The Board was well within its
rights to reject this argument.
B
We have little to add with respect to the Yusevs’ motion to
reconsider the Board’s denial of their untimely motion to reo-
pen. As we noted earlier, we review this decision only for
abuse of discretion. A motion to reconsider must alert the
Board to additional legal arguments, a change in law, or some-
thing that was overlooked in its earlier decision. See In re O-
S-G-, 24 I. & N. Dec. 56 (BIA 2006); Khan v. Holder, 766 F.3d 689,
696 (7th Cir. 2014). The Yusevs’ motion did none of these
things; it merely reiterated the points they had made in their
earlier submissions. Nothing the Yusevs presented with the
motion to reconsider the motion to reopen cured the defects
to which the Board had pointed.
We end with a word about the Yusevs’ effort to attack the
Board’s decision not to use a three-member panel in their case.
We addressed and rejected this argument in Yusev I, where we
noted that the relevant regulations “give Board members dis-
cretion to refer an appeal to a three-member panel in six dif-
ferent circumstances, but referral is not required.” 643 F. App’x
at 603, (citing 8 C.F.R. § 1003.1(e)(6)); Ward v. Holder, 632 F.3d
395, 398–99 (7th Cir. 2011). The contention has not improved
8 Nos. 16-1338 & 16-2242
with time or reiteration. The Board did not abuse its discretion
when it chose in this case to proceed with a single judge.
We have considered the other arguments the Yusevs have
presented and find no merit in them. The petitions for review
are therefore DENIED.