Garcia v. Lynch

United States Court of Appeals
For the First Circuit
No. 15-1633
JOSÉ GARCÍA,
Petitioner,
v.
LORETTA E. LYNCH, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF ORDERS
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya and Thompson,
Circuit Judges.
Raymond Sánchez Maceira on brief for petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, U.S. Department of Justice, John S. Hogan,
Assistant Director, Office of Immigration Litigation, and Nicole
N. Murley, Trial Attorney, on brief for respondent.
May 9, 2016
SELYA, Circuit Judge. Immigration cases — like old
soldiers — seem never to die. They may fade away for a spell, but
they often return in slightly altered postures. So it is here.
The petitioner, José García, is a native and citizen of
the Dominican Republic. He seeks judicial review of rulings
rejecting serial attempts to revisit a final order of removal
entered in 2009. Though creative, his arguments are unavailing
and, in the end, we dismiss his petition in part and deny it in
part.
We briefly rehearse the essential facts and travel of
the case. By virtue of his 1996 marriage to a United States
citizen, the petitioner became a conditional lawful permanent
resident. See 8 U.S.C. § 1186a(a)(1). In 1998, the couple filed
an I-751 joint petition to remove the conditions of the
petitioner's residency. See id. § 1186a(c)(3). United States
Citizenship and Immigration Services (USCIS) denied the petition,
citing marriage fraud. See id. § 1186a(b)(1). After numerous
procedural detours, the petitioner's conditional permanent
residency status was terminated, and federal authorities
instituted removal proceedings against him. See id.
§§ 1227(a)(1)(D)(i), 1229(a).
On May 20, 2009, an Immigration Judge (IJ) entered an
order of removal in absentia after the petitioner failed to appear
for a scheduled hearing. See id. § 1229a(b)(5). Through his
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attorney, the petitioner promptly moved to reopen the proceeding,
claiming that his arrival at the hearing had been delayed by
traffic conditions. The IJ denied this motion, concluding that
there had been no showing of "exceptional circumstances beyond
[the] alien's control." See id. § 1229a(b)(5)(C)(i).
The petitioner appealed the denial of his motion to
reopen to the Board of Immigration Appeals (BIA). In short order,
however, the petitioner executed an about-face: he withdrew his
appeal and requested reinstatement of the removal order,
professing a desire to return to his homeland. The BIA obliged
and, on July 10, 2009, the petitioner was removed and remitted to
the Dominican Republic.
Sometime in December of 2012, the petitioner reentered
the United States illegally. He was soon apprehended and charged
criminally with unlawful reentry. See 8 U.S.C. § 1326(a).
On August 28, 2013, the petitioner again moved to reopen,
alleging that he had received ineffective assistance of counsel
during the 2009 removal proceedings. The petitioner initially
contended that his counsel had never filed a motion to reopen.
When it came to light, though, that the petitioner's counsel had
indeed filed such a motion eight days after the IJ's in absentia
removal order, the petitioner switched gears and argued that the
filed motion to reopen was "terribly flawed" as it had not included
a sworn statement from the petitioner himself.
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The IJ denied this second motion to reopen on multiple
grounds. Two of those grounds are relevant here. First, the IJ
ruled that the motion was time and number barred.1 See 8 C.F.R.
§ 1003.23(b)(1). Second, the IJ ruled that the petitioner's
ineffective assistance of counsel claim was faulty because it did
not comply with any of the requirements enumerated in Matter of
Lozada, 19 I&N Dec. 637 (BIA 1988).2 On March 12, 2015, the BIA
affirmed the denial of the second motion to reopen, adding that
1 Motions to reopen are generally subject to both temporal and
numeric restrictions. See Meng Hua Wan v. Holder, 776 F.3d 52, 56
(1st Cir. 2015); see also 8 C.F.R. § 1003.23(b)(1). "A party
ordinarily may file only one motion to reopen, and that motion
must be filed within 90 days of the date of entry of the final
administrative order." Meng Hua Wan, 776 F.3d at 56. The deadline
for filing a motion to reopen in absentia orders of removal
broadens to 180 days if the alien can demonstrate that the failure
to appear was the result of exceptional circumstances. See 8
C.F.R. § 1003.23(b)(4)(iii)(A)(1); Xue Su Wang v. Holder, 750 F.3d
87, 89-90 (1st Cir. 2014).
2 Under Lozada, a valid motion to reopen based on ineffective
assistance of counsel must 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.
Taveras-Duran v. Holder, 767 F.3d 120, 123 n.2 (1st Cir. 2014)
(quoting Punzalan v. Holder, 575 F.3d 107, 109 n.1 (1st Cir.
2009)); see Lozada, 19 I&N Dec. at 639.
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the petitioner had not demonstrated prima facie eligibility for
any conservable relief from removal.
The petitioner moved for reconsideration of the BIA's
decision. See 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b). On
May 15, 2015, the BIA denied reconsideration. This petition for
judicial review was filed on May 26, 2015. See 8 U.S.C. § 1252(b).
Because this case comes to us as a procedural motley, we
begin by clarifying the scope of our review. Congress has imposed
statutorily prescribed time limits on parties seeking judicial
review of final agency orders in immigration cases. See id.
§ 1252(b)(1); Hurtado v. Lynch, 810 F.3d 91, 93 (1st Cir. 2016).
Generally, compliance with these time limits is mandatory and
jurisdictional. See Onwuamaegbu v. Gonzales, 470 F.3d 405, 406
(1st Cir. 2006); Zhang v. INS, 348 F.3d 289, 292 (1st Cir. 2003).
Here, the petitioner characterizes his petition for review as a
challenge to both the denial of his second motion to reopen and
the denial of his motion to reconsider. The catch, however, is
that he never filed a timely petition for judicial review of the
BIA's denial of his second motion to reopen; that is, he never
filed such a petition within thirty days of that denial.3 See 8
3 The BIA's March 12, 2015 order was a final order, and the
subsequent filing of a motion to reconsider does not toll the
running of the period within which an aggrieved party may seek
judicial review. See Saka v. Holder, 741 F.3d 244, 248-49 (1st
Cir. 2013). To that extent, then, we dismiss the petition for
want of jurisdiction.
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U.S.C. § 1252(b)(1). It follows inexorably that we lack
jurisdiction to review that portion of the petitioner's challenge.
See Hurtado, 810 F.3d at 93.
This leaves us with jurisdiction to review only the BIA's
May 15, 2015 denial of the petitioner's motion for reconsideration.
We review the denial of a motion to reconsider solely for abuse of
discretion. See Martinez-Lopez v. Holder, 704 F.3d 169, 171 (1st
Cir. 2013). Under this deferential approach, no abuse of
discretion will ordinarily be found unless the "denial was made
without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis." Id.
at 172 (quoting Zhang, 348 F.3d at 293).
In this instance, the BIA denied the petitioner's motion
to reconsider for two principal reasons. First, it reasoned that
the petitioner's ineffective assistance of counsel claim failed
because the petitioner had not complied with the Lozada
requirements. Second, it pointed out that the motion to reconsider
identified neither any error of law or fact in the underlying
decision nor any argument that the BIA overlooked in reaching that
decision. See 8 C.F.R. § 1003.2(b)(1); In re O-S-G, 24 I&N Dec.
56, 58 (BIA 2006).
Before us, the petitioner suggests that the BIA abused
its discretion not only by requiring strict adherence to the
demands of Lozada but also by failing to equitably toll the time
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and number restrictions on motions to reopen. Neither suggestion
carries the day.
The first of these suggestions is simply unpersuasive.
The petitioner does not dispute that he neglected to comply with
the Lozada requirements. Rather, he posits that the ineffective
assistance of his counsel is "plain on the face of the
administrative record," Escobar-Grijalva v. INS, 206 F.3d 1331,
1335 (9th Cir. 2000), thus entitling him to an exception to the
Lozada requirements. We have, however, explicitly disavowed any
"plain on the face of the administrative record" exception in favor
of a case-by-case assessment of whether the BIA's application of
Lozada was arbitrary. See Zeng v. Gonzales, 436 F.3d 26, 31 (1st
Cir. 2006).
Contrary to the petitioner's importunings, our decision
in Saakian v. INS, 252 F.3d 21, 26-27 (1st Cir. 2001), does not
endorse a different rule. Fairly read, Saakian stands for nothing
more than the commonplace proposition that the BIA cannot
arbitrarily apply the Lozada requirements. See Tai v. Gonzales,
423 F.3d 1, 5-6 (1st Cir. 2005); Asaba v. Ashcroft, 377 F.3d 9, 11
(1st Cir. 2004). That ends this aspect of the matter: since the
petitioner's theory of legal error is foreclosed by circuit
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precedent, the BIA perforce did not abuse its discretion in denying
the motion for reconsideration on this ground.4
The petitioner's remaining argument — that the BIA
abused its discretion by failing to treat his otherwise time and
number barred second motion to reopen as if it were a timeous first
attempt under the doctrine of equitable tolling — is a non-starter.
Passing the question of whether equitable tolling is available at
all in this context, see Omar v. Lynch, 814 F.3d 565, 568-69, 569
n.1 (1st Cir. 2016) (leaving question open); Muyubisnay-Cungachi
v. Holder, 734 F.3d 66, 72 (1st Cir. 2013) (same), it is black-
letter law that "arguments not raised before the BIA are waived
due to a failure to exhaust administrative remedies." Shah v.
Holder, 758 F.3d 32, 37 (1st Cir. 2014) (quoting Molina de Massenet
v. Gonzales, 485 F.3d 661, 664 (1st Cir. 2007)). That rule applies
four-square in this case: the petitioner did not make his equitable
tolling argument before the BIA. Instead, the argument makes its
debut in his briefing to this court. His failure to advance the
argument below means that it is unexhausted and, thus, cannot be
considered in this judicial review proceeding. See id.; see also
4 We add that nothing in the record so much as hints that the
BIA abused its discretion in insisting upon the applicability of
the Lozada requirements here. In all events, we have consistently
upheld BIA orders denying motions to reopen when — as in this case
— the Lozada requirements have been flouted. See, e.g., Taveras-
Duran v. Holder, 767 F.3d 120, 123-24 (1st Cir. 2014); Zeng, 436
F.3d at 31-32.
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DaCosta v. Gonzales, 449 F.3d 45, 49-50 (1st Cir. 2006) (refusing
to consider equitable tolling argument not raised before the BIA).
We need go no further. For the reasons elucidated above,
we dismiss the petition for judicial review in part for want of
jurisdiction and otherwise deny it.
So Ordered.
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