Pineda v. Whitaker ( 2018 )

United States Court of Appeals
For the First Circuit
No. 18-1162
GEOVANNY PINEDA,
Petitioner,
v.
MATTHEW G. WHITAKER,
ACTING ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Selya and Thompson, Circuit Judges.
Kevin MacMurray, Daniel W. Chin, and MacMurray & Associates
on brief for petitioner.
Chad A. Readler, Acting Assistant Attorney General, Linda S.
Wernery, Assistant Director, and Lindsay B. Glauner, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.
November 19, 2018

Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General
Matthew G. Whitaker has been substituted for former Attorney
General Jefferson B. Sessions, III as the respondent.
SELYA, Circuit Judge. We recently wrote that "[m]otions
to reopen — especially untimely motions to reopen — are disfavored
in immigration cases. Consequently, an alien who seeks to reopen
removal proceedings out of time ordinarily faces a steep uphill
climb." Sihotang v. Sessions, 900 F.3d 46, 48 (1st Cir. 2018).
This case, in which the petitioner waited roughly four and one-
half years before moving to reopen his removal proceedings, bears
witness to the difficulty of the ascent. Concluding, as we do,
that the petitioner has not shown a sufficient reason to excuse
his delay, we uphold the rejection of his motion to reopen by the
Board of Immigration Appeals (BIA) and deny his petition for
judicial review.
The petitioner, Geovanny Pineda, is a native and citizen
of El Salvador. He entered the United States illegally in 1999.
In 2001, he applied for temporary protected status (TPS) and
employment authorization.1 His TPS application was received (but
not acted upon immediately) and his application for employment
authorization was granted. On April 10, 2003, the petitioner's
1
TPS affords aliens protection from removal from the United
States upon a determination by the Attorney General that the
conditions in the alien's homeland prevent his or her safe return.
See 8 U.S.C. § 1254a. The Attorney General designated El Salvador
(the petitioner's homeland) for the TPS program in 2001 after a
series of earthquakes struck the country that year. See Villanueva
v. Holder, 784 F.3d 51, 53 (1st Cir. 2015) (citing Designation of
El Salvador Under Temporary Protected Status Program, 66 Fed. Reg.
14,214 (Mar. 9, 2001)).
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TPS application was denied. He unsuccessfully moved for
reconsideration, but nonetheless remained in the United States.
We fast-forward to May of 2010, at which time the
Department of Homeland Security (DHS) initiated removal
proceedings against the petitioner. The DHS charged that the
petitioner was removable as "[a]n alien present in the United
States without being admitted or paroled." 8 U.S.C.
§ 1182(a)(6)(A)(i). Approximately four months later, the
petitioner appeared before an immigration judge (IJ) and, through
counsel, conceded removability. At the same time, he indicated
that he wanted to apply for withholding of removal and protection
under the United Nations Convention Against Torture (CAT). The IJ
ordered a ten-month continuance until June 29, 2011, so that the
petitioner could prepare his applications for these forms of relief
from removal. A warning accompanied the continuance: the IJ
admonished the petitioner that if he failed to file full-blown
applications for relief within the specified period, his
preliminary requests would be considered "abandon[ed]."
On June 29, 2011, the petitioner failed to make the
anticipated filings. His attorney sought a further continuance,
telling the IJ that he had not been able to assemble the completed
applications within the prescribed interval. The IJ denied a
further continuance, found the petitioner's applications for
withholding of removal and CAT protection to be abandoned, and
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ordered the petitioner removed to El Salvador. In his bench
decision, the IJ observed that the ten-month continuance he had
given the petitioner was "quite sufficient" and that the petitioner
had been explicitly warned about the consequences of non-
compliance with that deadline.
The petitioner, acting pro se, filed a notice of appeal
on July 28, 2011. He asserted that he did "not speak English" and
insisted that he had not been made aware of the filing deadline.
Rather, he had "relied on [his] lawyer to tell [him] what [he]
needed to do to apply for asylum." Thereafter, the petitioner
secured the services of a second attorney, who filed a brief in
support of his appeal. In that brief, the petitioner argued that
the IJ had abused his discretion in deeming the petitioner's
requests for withholding of removal and CAT protection abandoned.
His argument posited that applications for withholding of removal
and CAT protection were requests for "mandatory" protection and,
thus, a single procedural misstep was not enough to justify their
summary denial.
On December 28, 2012, the BIA affirmed the order of
removal. In so doing, it upheld the IJ's determination that the
petitioner had abandoned his requests for withholding of removal
and CAT protection. The BIA noted, inter alia, that an application
for relief that is not filed within the time limits set by the IJ
is deemed waived. See 8 C.F.R. § 1003.31(c). Here, moreover, the
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IJ had "adequately apprised the [petitioner], through counsel, of
the deadline for filing his application[s] . . . and that if he
failed to timely submit his applications, they would be deemed
abandoned." With respect to the petitioner's veiled suggestion
that the missed deadline was attributable to the ineptitude of his
first attorney, the BIA responded that more than a generalized
assertion was needed to make out an ineffective assistance of
counsel claim. Citing Matter of Lozada, 19 I. & N. Dec. 637, 639
(B.I.A. 1988), the BIA proceeded to give the petitioner chapter
and verse concerning the prerequisites for an alien's ineffective
assistance of counsel claim.2
2 The BIA's decision in Lozada is widely recognized as a
leading case with respect to claims of ineffective assistance of
counsel in the immigration context. See, e.g., García v. Lynch,
821 F.3d 178, 180-81 (1st Cir. 2016); Orehhova v. Gonzales, 417
F.3d 48, 51-52 (1st Cir. 2005); Saakian v. I.N.S., 252 F.3d 21,
25-27 (1st Cir. 2001). Lozada requires that a motion to reopen
based on ineffective assistance of counsel be supported by:
(1) an affidavit explaining the petitioner's
agreement with counsel regarding legal
representation; (2) evidence that counsel has
been informed of the allegations of
ineffective assistance and has had an
opportunity to respond; and (3) if it is
asserted that counsel's handling of the case
involved a violation of ethical or legal
responsibilities, a complaint against the
attorney filed with disciplinary authorities
or, in the alternative, an explanation for why
such a complaint has not been filed.
García, 821 F.3d at 180 n.2 (quoting Taveras-Duran v. Holder, 767
F.3d 120, 123 n.2 (1st Cir. 2014)); see Lozada, 19 I. & N. Dec. at
639.
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The petitioner did not seek judicial review of the BIA's
removal order, and the matter lay fallow for roughly four and one-
half years. At that point, the petitioner — through yet a third
attorney — filed a motion beseeching the BIA to vacate the 2012
removal order and reopen the removal proceedings. Along with his
motion to reopen, the petitioner proffered applications for
asylum, withholding of removal, and CAT protection. The motion
was untimely, see 8 C.F.R. § 1003.2(c)(2), but the petitioner
maintained that the ninety-day filing deadline should be equitably
tolled due to ineffective assistance of counsel. Relatedly, he
claimed to have learned only recently that his first attorney had
been disbarred in October of 2012 for failing to represent his
immigration clients appropriately and misrepresenting matters
pertaining to them. The BIA found no basis for equitable tolling:
in its view, the petitioner had not exercised due diligence during
the four and one-half years after he was explicitly informed of
the steps required to raise his ineffective assistance of counsel
claim. Consequently, the BIA refused to relax the time bar and
denied the motion to reopen as untimely. See id. This petition
for judicial review followed.3 See 8 U.S.C. § 1252(a)(1), (b)(6).
3 The petitioner also sought a stay of removal. In an
unpublished order, we concluded that the petitioner had not
satisfied the requirements for a stay because he had failed to
show either a likelihood of success on the merits or irreparable
injury. See Nken v. Holder, 556 U.S. 418, 434-35 (2009). The
petitioner has since been removed to El Salvador, but his removal
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Motions to reopen removal proceedings run at cross-
purposes with "the compelling public interests in finality and the
expeditious processing of proceedings." Guerrero-Santana v.
Gonzales, 499 F.3d 90, 92 (1st Cir. 2007) (quoting Raza v.
Gonzales, 484 F.3d 125, 127 (1st Cir. 2007)). Such motions are,
therefore, disfavored. See Sihotang, 900 F.3d at 48; Guerrero-
Santana, 499 F.3d at 92. As a result, we review the BIA's denial
of a motion to reopen under a highly deferential abuse-of-
discretion standard. See Bbale v. Lynch, 840 F.3d 63, 66 (1st
Cir. 2016). We will uphold the BIA's decision unless the
petitioner can show that the BIA either committed a material error
of law or exercised its authority arbitrarily, capriciously, or
irrationally. See id.
Some special constraints apply to motions to reopen
removal proceedings. In particular, such motions are "limited
both numerically and temporally." Meng Hua Wan v. Holder, 776
F.3d 52, 56 (1st Cir. 2015). As a general rule, a party may file
only a single motion to reopen, which must be filed within ninety
days of the issuance of the final administrative order. See 8
U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Here, the
petitioner filed only a single motion to reopen, but that motion
was plainly out of time: he did not file it until more than four
does not render his petition for judicial review moot. See Lopez
v. Gonzalez, 549 U.S. 47, 52 n.2 (2006).
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years after the entry of the BIA's final order of removal. To
excuse this protracted delay, the petitioner seeks refuge in the
equitable tolling doctrine. See, e.g., Neves v. Holder, 613 F.3d
30, 36 (1st Cir. 2010) (per curiam) (describing doctrine).
Specifically, he avers that his first attorney's ineffective
assistance, combined with the fact that he learned only recently
that the attorney had been disbarred, entitles him to the balm of
equitable tolling.4 In the alternative, he argues that his due
process right to present his case for relief from removal was
violated through his first attorney's ineffective assistance. We
examine these claims one by one.
We start with a word of caution: "whether equitable
tolling can suspend the time limits applicable to motions to
reopen" is an open question in the First Circuit. Xue Su Wang v.
Holder, 750 F.3d 87, 90 (1st Cir. 2014). Here, however, we need
not answer that question, as the petitioner's quest for equitable
tolling is manifestly unavailing. Thus, we assume — without
deciding — that equitable tolling may be available in a proper
case.
4
The petitioner's claim of ineffective assistance is directed
solely at his first attorney. He does not suggest that his second
attorney, who represented him in the original proceedings before
the BIA, performed ineffectively.
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This arguendo assumption does not benefit the petitioner
because his case presents no fertile soil for equitable tolling.
"The equitable tolling doctrine extends statutory deadlines in
extraordinary circumstances for parties who were prevented from
complying with them through no fault or lack of diligence of their
own." Neves, 613 F.3d at 36. To reap the benefit of equitable
tolling, a party must establish: "(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way." Xue Su Wang, 750 F.3d at 90
(quoting Neves, 613 F.3d at 36).
In the case at hand, the BIA found equitable tolling to
be beyond the petitioner's reach because he had not exercised due
diligence during the lengthy period that elapsed between the BIA's
affirmance of the IJ's removal order and the date on which the
petitioner moved to reopen the removal proceedings. The petitioner
faults the BIA's reasoning, arguing that he diligently pursued his
rights by hiring multiple attorneys and attending hearings.
Relatedly, he argues that he was unable to assert an ineffective
assistance of counsel claim between the date of the BIA's 2012
order of removal and the filing of his 2017 motion to reopen
because he did not know that his first attorney had been disbarred.
These arguments miss the mark: they do not adequately explain why
the petitioner waited four and one-half years before making any
effort to reopen the removal proceedings, notwithstanding that the
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BIA had informed him in its 2012 decision of the elements that he
needed to assert his ineffective assistance of counsel claim.
Forewarned should be forearmed, see Kassel v. Gannett Co., 875
F.2d 935, 940 (1st Cir. 1989) (citing Miguel de Cervantes, Don
Quixote de la Mancha III, 10 (1615)), and the petitioner's largely
unexplained delay in the assertion of his ineffective assistance
of counsel claim is the polar opposite of due diligence. See Meng
Hua Wan, 776 F.3d at 58 (upholding BIA finding of no due diligence
where petitioner attempted to reopen years after being removed
despite having received instructions regarding reopening).
The petitioner demurs, pointing out that he hired three
separate lawyers during the course of his removal proceedings.
But merely hiring lawyers does not create a safe harbor especially
where, as here, none of the petitioner's lawyers was on deck during
the critical period. His first attorney represented him before
the IJ; his second attorney represented him during his appeal of
the IJ's removal order to the BIA; and his third attorney filed
the untimely motion to reopen and the instant petition for judicial
review. That chronology leaves an obvious gap between 2012 and
2017. Yet the petitioner has offered no plausible explanation for
the lengthy period of inactivity between the work done by his
second attorney (ending in 2012) and the engagement of his third
attorney (beginning in or around 2017). This period of inactivity,
which occurred after the BIA informed him of the prerequisites for
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an ineffective assistance of counsel claim, solidly supports the
BIA's finding that the petitioner failed to pursue his immigration
case with due diligence. See Guerrero-Santana, 499 F.3d at 94
(upholding BIA determination that petitioner failed to exercise
due diligence when he waited four years before hiring an attorney
and did not promptly move to reopen).
Nor does the fact that the petitioner learned only
recently that his first attorney had been disbarred tip the
decisional calculus. For one thing, the petitioner's first
attorney was disbarred two months before the BIA's 2012 order of
removal was entered. Were the petitioner to have employed due
diligence, he could have verified the status of his first attorney
at the time the BIA dismissed his appeal.
For another thing — and perhaps more importantly — the
BIA's 2012 decision carefully delineated the requirements for an
ineffective assistance of counsel claim, and there is no
requirement that the client show the offending attorney has been
disbarred. See supra note 2. Yet the petitioner sat on his hands
as the years went by and, for aught that appears, did not lift a
finger for over four years to assemble the ingredients of an
ineffective assistance claim. We have said before — and today
reaffirm — that "[t]he [equitable tolling] doctrine is not
available as a means of rescuing a party who has failed to exercise
due diligence." Guerrero-Santana, 499 F.3d at 94.
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That ends this aspect of the matter. The BIA's
discretionary decision about whether to grant an untimely motion
to reopen is entitled to great respect. See Beltre-Veloz v.
Mukasey, 533 F.3d 7, 11 (1st Cir. 2008). Here, the BIA has neither
committed a material error of law nor acted arbitrarily,
capriciously, or irrationally. On this record, we discern no abuse
of discretion in the BIA's determination that the petitioner failed
to demonstrate due diligence in filing his untimely motion to
reopen. What we have said in a different context rings equally
true here: "The law ministers to the vigilant not to those who
sleep upon perceptible rights." Puleio v. Vose, 830 F.2d 1197,
1203 (1st Cir. 1987).
This leaves the petitioner's claim that the BIA violated
his due process rights by preventing him from presenting his case
on the merits. This claim stumbles at the threshold: the
petitioner did not raise it in his motion to reopen and, therefore,
we lack jurisdiction to adjudicate it. We explain briefly.
In the immigration context, it is a condition precedent
to judicial review of any given claim that the petitioner "has
exhausted all administrative remedies available to [him] as of
right." 8 U.S.C. § 1252(d)(1). The purpose of this exhaustion
requirement is to ensure that a court will not commandeer an
agency's prerogatives. See Meng Hua Wan, 776 F.3d at 56. To this
end, a court must "allow[] the agency the first opportunity to
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correct its own bevues." Mazariegos-Paiz v. Holder, 734 F.3d 57,
63 (1st Cir. 2013).
In this case, the record makes manifest that the
petitioner's due process claim is debuting in this court; the
petitioner simply did not raise this claim, or anything like it,
in his motion to reopen. Nor was the claim raised at any time
before the BIA. Consequently, we lack jurisdiction to entertain
the petitioner's due process claim. See García v. Lynch, 821 F.3d
178, 181-82 (1st Cir. 2016); cf. Ahmed v. Holder, 611 F.3d 90, 97
(1st Cir. 2010) (explaining that "arguments not made before the
BIA may not make their debut in a petition for judicial review of
the BIA's final order").
We need go no further. For the reasons elucidated above,
the petition for judicial review is denied.
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