Wan v. Holder

United States Court of Appeals
For the First Circuit
Nos. 13-1893
14-1285
MENG HUA WAN,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITIONS FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya and Howard,
Circuit Judges.
Wei Jia and Law Office of Wei Jia on brief for petitioner.
Stuart F. Delery, Assistant Attorney General, Civil Division,
Kelly Walls, Senior Litigation Counsel, and Anna Nelson, Trial
Attorney, Office of Immigration Litigation, on brief for
respondent.
January 20, 2015
SELYA, Circuit Judge. Petitioner Meng Hua Wan, a Chinese
national, seeks judicial review of an order of the Board of
Immigration Appeals (BIA) affirming a decision of an immigration
judge (IJ) refusing to reopen removal proceedings after the
petitioner was ordered removed in absentia. Concluding, as we do,
that the agency did not abuse its considerable discretion, we deny
relief.
The material facts are easily summarized. The petitioner
entered the United States in June of 1997 on a visitor's visa that
expired six months later. He overstayed and accepted employment
without proper authorization. Approximately three years later,
federal authorities instituted removal proceedings. See 8 U.S.C.
§ 1227(a)(1)(B), (a)(1)(C)(i) (formerly § 237(a)(1)(B),
(a)(1)(C)(i)).
At that time, the petitioner gave the Immigration and
Naturalization Service (INS) a mailing address — "80 Farrington St
#3, Quincy, MA 02117" — that contained an inaccurate zip code. The
petitioner was served personally with, and signed for, a notice to
appear (NTA) that left open the date of appearance. The NTA
reflected the incorrect zip code that the petitioner had provided
but warned the petitioner that he was required to report any change
in his current mailing address to the INS; that notices of hearings
would be mailed to that address; and that failure to attend a
hearing could result in an in absentia order of removal. Despite
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these warnings, the petitioner never advised the INS about the
inaccurate zip code.
In due course, the immigration court scheduled a removal
hearing for March 20, 2001, and sent notice to the petitioner at
his mailing address, using the correct zip code (02170). The
hearing notice warned once again that if the petitioner's address
was incorrectly listed on the NTA, he must furnish the immigration
court with the correct address within five days. See 8 C.F.R.
§ 1003.15(d)(1). It further cautioned that hearing notices would
be sent to the most recent address provided by the petitioner and
would be deemed sufficient notice for future proceedings. The
petitioner concedes that he received this hearing notice. Once
again, the petitioner made no effort to correct the zip code listed
on the NTA.
The petitioner did not show up for the scheduled hearing.
The IJ gave the petitioner a second bite at the apple: she
continued the hearing to May 1, 2001, and made sure that a notice
of the new hearing date was sent to the petitioner. This notice
was mailed to the address listed on the NTA.
When the petitioner again failed to appear, the IJ
entered an order of removal in absentia. A copy of the removal
order and instructions for filing a motion to reopen were mailed to
the petitioner using the correct "02170" zip code.
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Some eleven years later, the petitioner became embroiled
in criminal proceedings involving a false green card. This
contretemps brought his immigration status to the fore and, in
January of 2013, he moved to reopen his removal proceedings. The
petitioner conceded that he had received notice of the March 20
hearing, but blamed his failure to appear on ineffective assistance
of counsel. He explained that, upon receiving the initial hearing
notice, he retained a California attorney named Chen who assured
him that he (Chen) would "settle" the problem. Chen supposedly
advised the petitioner that he need not attend the hearing. The
petitioner never heard from Chen again, and his efforts to contact
Chen proved unavailing.
The IJ denied the motion to reopen as untimely. She
noted that notice of both the removal proceedings and the entry of
the removal order was properly served by mail at the correct
address, but the petitioner nevertheless dallied more than eleven
years before seeking to reopen the matter. The IJ also declined to
order reopening sua sponte, finding that the petitioner had neither
exhibited diligent efforts nor set forth sufficient detail to make
out a colorable claim for withholding of removal.
The petitioner unsuccessfully appealed to the BIA. His
attempt to secure judicial review was interrupted by the
government's unopposed motion to remand the case to the BIA for
consideration of whether the petitioner qualified for relief based
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on changed circumstances in his homeland. See 8 C.F.R.
§ 1003.23(b)(4)(i). We granted the government's motion (albeit
retaining jurisdiction). On remand, the BIA concluded that the
petitioner had failed to present evidence demonstrating a material
change in China's country conditions since he was ordered removed
in 2001. Rather, the only changes were in the petitioner's
personal circumstances in the United States, and such changes are
not a valid basis for an exception to the temporal limitation for
filing a motion to reopen. See Ming Chen v. Holder, 722 F.3d 63,
66 (1st Cir. 2013). A new petition for judicial review followed.1
In the immigration context, this court ordinarily reviews
the decision of the BIA rather than that of the IJ. See Jianli
Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012). To the extent
that the BIA adopts portions of the IJ's findings while adding its
own gloss, however, we treat the two decisions as a unit. See id.
We review denials of motions to reopen solely for abuse of
discretion. See INS v. Doherty, 502 U.S. 314, 323 (1992); Xue Su
Wang v. Holder, 750 F.3d 87, 89 (1st Cir. 2014). The agency's
resolution of such a motion will stand unless that resolution rests
on a material error of law or a manifestly arbitrary exercise of
judgment. See Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir.
2005).
1
We have consolidated this petition with the original
petition for judicial review. For present purposes, we need not
distinguish between the two petitions.
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Motions to reopen removal proceedings are disfavored
because such motions are "contrary to the compelling public
interests in finality and the expeditious processing of
proceedings." Guerrero-Santana v. Gonzales, 499 F.3d 90, 92 (1st
Cir. 2007) (internal quotation marks omitted). Such motions are
generally limited both numerically and temporally. 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. See 8 C.F.R. § 1003.23(b)(1).
To be sure, this strict regime admits of certain narrowly
circumscribed exceptions. Pertinently, an in absentia order of
removal may be reopened if the alien can show either that he did
not receive proper notice of the removal proceedings or that his
failure to appear was due to exceptional circumstances beyond his
control. See 8 C.F.R. § 1003.23(b)(4)(iii)(A); Kozak v. Gonzáles,
502 F.3d 34, 35 (1st Cir. 2007). There is a further exception that
comes into play when a petitioner can show materially changed
country conditions. See 8 C.F.R. § 1003.23(b)(4)(i). When a
motion to reopen is based on lack of proper notice or changed
country circumstances, it may be filed at any time. See id.
§ 1003.23(b)(4)(i), (b)(4)(iii)(A)(2). However, when a motion to
reopen is based on exceptional circumstances, it must be proffered
within 180 days of the entry of the removal order. See id.
§ 1003.23(b)(4)(iii)(A)(1).
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In his first petition for review, the petitioner arguably
alleged that changed country conditions warranted an extension of
the filing deadline for motions to reopen. In his second petition
for review, the petitioner alleged that he did not have proper
notice of his removal hearing, that the IJ abused her discretion in
failing to apply equitable tolling, and that the BIA engaged in
impermissible factfinding. Before tackling any of these arguments,
though, we must confront a threshold barrier: the government's
contention that this court lacks jurisdiction over the last three
claims of error because the petitioner did not raise them below
and, thus, did not exhaust his administrative remedies.
We start with a brief reprise of the exhaustion
requirement. For this court to have jurisdiction to review a final
order of removal, the alien must have "exhausted all administrative
remedies available to the alien as of right." 8 U.S.C.
§ 1252(d)(1). The purpose of this requirement is to prevent the
courts from usurping the agency's functions and to "allow[] the
agency the first opportunity to correct its own bevues."
Mazariegos-Paiz v. Holder, 734 F.3d 57, 63 (1st Cir. 2013).
Our exercise of jurisdiction over the first two contested
claims of error — lack of notice and equitable tolling — appears to
be appropriate. Whether or not raised by the petitioner, the BIA
addressed the notice issue. Similarly, it concluded that the
petitioner failed to show due diligence — a prerequisite to the
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application of the equitable tolling doctrine. See Neves v.
Holder, 613 F.3d 30, 36 (1st Cir. 2010). The exhaustion
requirement is satisfied where, as here, the agency chooses to
address the merits of a particular issue, regardless of whether the
alien raised that issue. See Mazariegos-Paiz, 734 F.3d at 63.
While we have jurisdiction to review these two claims of
error, the same does not hold true for the petitioner's claim that
the BIA engaged in impermissible factfinding. This claim is
directed to the BIA's actions rather than to anything that happened
before the IJ, so it could only have been raised below through the
filing of a motion for reconsideration.
This court has not yet had occasion to decide whether a
claim asserting that the BIA engaged in impermissible factfinding
must be raised on a motion for reconsideration in order to satisfy
the exhaustion requirement. The time has come for us to grapple
with this question.
In our view, we lack jurisdiction to hear and determine
the petitioner's claim that the BIA engaged in impermissible
factfinding. That claim has never been heard by the BIA, and the
core purpose of the exhaustion requirement is frustrated when, as
in this instance, the BIA's decision gives rise to a new issue and
the alien fails to use an available and effective procedure for
bringing the issue to the agency's attention.
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In reaching this conclusion, we do not write on a
pristine page. The Fifth Circuit has held such a claim to be
unexhausted, reasoning that a motion for reconsideration "is an
available and adequate mechanism for the petitioner to argue, and
the BIA to correct, any errors that arise in a BIA decision."
Omari v. Holder, 562 F.3d 314, 320 (5th Cir. 2009). The Tenth
Circuit has sized up the situation the same way. See Sidabutar v.
Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007). We join these
courts and hold that when an alien complains of impermissible
factfinding by the BIA, that claim is unexhausted unless and until
the alien files a timely motion asking the BIA to reconsider its
actions. Consequently, we lack jurisdiction to entertain the
petitioner's claim of factfinding error.
We now turn to the merits of the claims that come within
our jurisdictional ken. To begin, the petitioner asserts that the
IJ should have rescinded the in absentia removal order because he
did not receive notice of the May 1 hearing. That notice, he
laments, was sent to an address that contained the wrong zip code.
The petitioner's argument is deeply flawed. He concedes
that he received notice of the original removal hearing (March 20,
2001). He does not suggest that it would have been improper for
the IJ to enter an in absentia removal order when he boycotted that
hearing. See 8 U.S.C. § 1229a(b)(5)(A). The IJ's precautionary
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decision to schedule a second hearing did not excuse the
petitioner's earlier absence.
In addition, the petitioner cannot escape the fact that
any error in the mailing address used by the immigration court was
his own contrivance. It was the petitioner who furnished the
inaccurate zip code to the INS and who failed (despite repeated
warnings) to correct that address when it was listed on the NTA.
It rings hollow for the petitioner to assail the immigration court
for mailing the notice to him at the very address that he had
specified. This is especially so since notification of the outcome
of the May 1 hearing — an in absentia order of removal — was
contemporaneously sent to the petitioner at his correct mailing
address.
Viewed against this backdrop, we discern no abuse of
discretion in the IJ's determination that the petitioner was not
entitled to an exception to the filing deadline due to lack of
notice. See Xue Su Wang, 750 F.3d at 90.
Next, the petitioner challenges the IJ's failure to
permit late reopening based on equitable tolling. As a preliminary
matter, we note that it is uncertain whether the equitable tolling
doctrine applies at all in the immigration context. See id.
(leaving question open). We need not attempt to clarify this point
today: even if equitable tolling applies, the petitioner cannot
meet its prerequisites.
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The equitable tolling doctrine is always to be used
sparingly. See Irwin v. Dep't of Vets. Affairs, 498 U.S. 89, 96
(1990); Guerrero-Santana, 499 F.3d at 94. One recognized
limitation on its use is that equitable tolling is unavailable to
excuse a party who has failed to exercise due diligence. See
Fustaguio do Nascimento v. Mukasey, 549 F.3d 12, 18 (1st Cir.
2008); Guerrero-Santana, 499 F.3d at 94.
In the case at hand, the BIA determined that the
petitioner did not exercise due diligence in moving to reopen.
That determination is supportable even if we assume, for argument's
sake, that the petitioner received ineffective assistance of
counsel. Regardless of what poor advice he may have gotten from
Chen, the fact remains that he made no attempt to contact the
immigration court for more than a decade. This lengthy period of
inaction occurred notwithstanding the fact that the removal order
was served by mail on the petitioner at his correct address and
included clear instructions for filing a motion to reopen. And in
all events, Chen's supposed disappearance should have alerted the
petitioner that his immigration status might be in jeopardy.
Courts and agencies, like the Deity, tend to help those
who help themselves. Here, the petitioner made no effort to help
himself. His inordinate lassitude not only demonstrates a stunning
lack of diligence but also serves to defeat his far-fetched claim
of error. See Xue Su Wang, 750 F.3d at 90; see also Beltre-Veloz
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v. Mukasey, 533 F.3d 7, 11 (1st Cir. 2008) (holding equitable
tolling precluded by alien's failure to act for roughly eight years
despite knowledge that removal proceedings had been commenced).
The petitioner balks, complaining that the agency failed
to consider the merits of his ineffective assistance claim. This
complaint is jejune: contrary to the petitioner's importunings, the
record makes manifest that the allegations of ineffective
assistance were squarely within the agency's contemplation when it
concluded that the petitioner had not exercised due diligence. For
example, the BIA's decision specifically noted that the eleven-year
delay in filing a motion to reopen precluded a finding of due
diligence even if the petitioner had received the parlous legal
advice that he claimed to have gotten.
We smooth out two last wrinkles. First, we previously
remanded this case for consideration of whether changed country
circumstances formed a plausible basis for extending the time for
moving to reopen. The BIA concluded that such an extension was not
justified. The petitioner has not renewed this claim and, thus, we
deem it abandoned. See Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir.
2010); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
The second wrinkle is more exotic. On December 19, 2014,
the petitioner filed an informative motion advising us of his
intention to seek deferred action under the recently announced
Deferred Action for Parental Accountability (DAPA) program. The
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DAPA program is to be administered by the United States Citizenship
and Immigration Service (USCIS). Our opinion in this matter is
without prejudice to the filing of an application for DAPA relief
with the USCIS. We take no view as to the petitioner's eligibility
for such relief.
We need go no further. For the reasons elucidated above,
we deny the petitions for review.
So Ordered.
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