Pineda v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
October 26, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT
LUIS GALVEZ PIÑEDA, JR.;
MARIA EVELYN ROQUE PIÑEDA;
JOHANNA ROQUE PIÑEDA;
ROBINSON ROQUE PIÑEDA;
DARWIN ROQUE PIÑEDA; AMIEL
ROQUE PIÑEDA,
Petitioners,
v. No. 03-9501 and 04-9590
ALBERTO R. GONZALES, United
States Attorney General, *
Respondent.
PETITIONS FOR REVIEW OF ORDERS
OF THE BOARD OF IMMIGRATION APPEALS
(B.I.A. NOS. A78-578-577; A78-578-578;
A78-578-579; A78-578-580; A78-578-581; A78-578-582)
Jeff Joseph (Jennifer Kain-Rios with him on the brief), Joseph Law Firm, P.C.,
Denver, Colorado, for Petitioners.
Melissa Neiman-Kelting, Attorney (Mary Jane Candaux, Senior Litigation
Counsel, Peter D. Keisler, Assistant Attorney General, Richard M. Evans,
Assistant Director, and Thomas B. Fatouros, Attorney, with her on the briefs),
*
On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as a
Respondent in this action.
Office of Immigration Litigation, Civil Division, United States Department of
Justice, Washington, D.C, for Respondent.
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
HARTZ, Circuit Judge.
This case deals with two separate petitions by Mr. Luis Galvez Piñeda and
his family for review of decisions by the Board of Immigration Appeals (BIA or
Board). The First Petition seeks review of the BIA’s summary dismissal of the
Piñedas’ appeal for failure to file a brief, and the Second Petition seeks review of
the BIA’s denial of their motion to reopen as untimely. We affirm both decisions
of the BIA.
Mr. Piñeda entered the United States on a visitor’s visa on July 28, 1999,
and his wife and four teenaged children followed several months later. After
remaining past the time allowed on their visas, the Piñedas applied for asylum and
withholding of removal. On November 13, 2001, the immigration judge (IJ)
denied the applications and ordered them removed to the Philippines. They filed
a timely notice of appeal with the BIA. When their counsel failed to file a brief
in support of the appeal, after indicating on the notice-of-appeal form that they
would do so, the BIA summarily dismissed the appeal on December 9, 2002, as
authorized by 8 C.F.R. § 1003.1(d)(2)(E) (formerly 8 C.F.R. § 3.1(d)(2)(i)(E)).
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The Piñedas then acquired new counsel and on June 22, 2004, filed a
motion to reopen with the BIA, claiming that their first counsel’s ineffective
assistance on appeal had deprived them of due process. See 8 C.F.R. § 1003.2(c).
The BIA denied that motion because it was not filed within the 90-day period set
by 8 C.F.R. § 1003.2(c)(2), and the Piñedas had not shown sufficient diligence to
justify equitable tolling of the period.
Both the First and Second Petitions challenge final orders of removal that
are subject to our review under 8 U.S.C. § 1252(a)(1). See Infanzon v. Ashcroft,
386 F.3d 1359, 1361–62 (10th Cir. 2004) (the BIA’s denial of a motion to reopen
“is considered a final, separately appealable order”). The petitions have been
consolidated as required by 8 U.S.C. § 1252(d)(6).
I. FACTS
A. Background
Mr. Piñeda, his wife, Maria, and their children, Johanna, Robinson, Darwin
and Amiel, are all natives and citizens of the Philippines. Mr. Piñeda was a
successful businessman, prominent in his community.
The asylum claim stems from Mr. Piñeda’s alleged contacts with the New
People’s Army (NPA), a communist organization that operates in many areas of
the Philippines. According to Mr. Piñeda, beginning in late 1984 and continuing
until his departure for the United States in 1999, the NPA made a series of
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demands, more aggressive and threatening over time, for “assistance” in the form
of weapons, monetary payments, and other material goods. He testified before the
IJ that one particularly threatening confrontation with a representative of the NPA
caused him to take refuge with a relative in Manilla and then travel to the United
States in January 1999. He returned to the Philippines that July but stayed for
only a few days, again going to the United States after he determined that the
threat remained. His family followed between May and June 2000.
B. Administrative Proceedings
On June 27, 2000, the Piñedas filed applications for asylum and
withholding of removal, claiming past persecution of Mr. Piñeda on account of
his political opposition to the NPA and on account of his membership in a
particular social group, namely, business owners who are subject to extortion
from the NPA and whom the government is unwilling or unable to protect. On
November 13, 2001, the IJ conducted a hearing and denied the applications for
asylum and withholding of removal. Relying on a BIA precedent, the IJ held that
the continual demand for money in the form of a revolutionary tax did not
constitute persecution on account of political opinion because the political
opinion of the target was irrelevant to the demand. The IJ also found some of Mr.
Piñeda’s story “difficult to believe.” R. at 167.
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The Piñedas’ attorney filed a timely notice of appeal with the BIA on
December 12, 2001. The notice briefly stated several grounds for appeal,
including the IJ’s failure to find a well-founded fear of persecution and failure to
address the asylum claim based on membership in a particular social group.
Box 6 on the notice-of-appeal form was checked to indicate that the Piñedas
would “file a separate written brief or statement.” Id. at 154. Following that box
on the form is a conspicuous warning that failure to file the promised brief or
explain the failure to do so could result in summary dismissal of the appeal.
The BIA sent out a briefing schedule indicating that the Piñedas had until
April 15, 2002, to submit a brief in support of their appeal. On December 9,
2002, not having received a brief, the BIA summarily dismissed the appeal. The
Piñedas’ attorney filed a timely petition for review with this court.
C. Change of Counsel
After repeated, unsuccessful efforts to contact his attorney, Mr. Piñeda
obtained a new attorney, who also tried unsuccessfully to contact the first attorney
to obtain the Piñedas’ file. New counsel (who is also present counsel) ultimately
received a copy of the administrative record from this court on December 16,
2003.
The Piñedas’ present counsel filed a brief in support of the First Petition,
arguing that ineffective assistance of counsel prevented them from obtaining a
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fundamentally fair hearing on the merits of their appeal, and challenging the
merits of the IJ’s decision on several grounds. Counsel also initiated steps toward
reopening the appeal to the BIA on the ground of ineffective assistance of
counsel. In compliance with the requirements of Matter of Lozada, 19 I. & N.
Dec. 637, 639 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1988), he filed a complaint
against the first attorney with the Colorado Supreme Court Attorney Regulation
Counsel. And on June 22, 2004, he filed a motion to reopen with the BIA. On
August 24, 2004, the BIA denied that motion as untimely because it had not been
filed within 90 days of the Board’s original decision, as required by 8 C.F.R. §
1003.2(c)(2). It rejected equitable tolling of the 90-day period for the following
reasons:
Equitable tolling of the motions deadline is unavailable when a party
fails to exercise due diligence on his own behalf. The pending
motion was filed over a year late. The [Piñedas] claim that they
were unaware of former counsel’s ineffective assistance until they
consulted with the attorney who signed the pending motion, but
failed to enter his appearance with the Board. Yet the attorney who
signed the pending motion began representing the [Piñedas] on
October 15, 2003, according to a letter he wrote to the Colorado
Supreme Court Attorney Regulation Counsel. Even so, this motion
was not submitted for 8 more months. As Riley v. INS, [310 F.3d
1253 (10th Cir. 2002),] requires, we have considered that the
[Piñedas] have complied with the procedural requirements for
making a claim of ineffective assistance of counsel . . . . However,
the [Piñedas] have not shown due diligence in presenting their
claims in the pending motion, where the motion was not filed for
many months after new counsel was consulted. The [Piñedas] state
that they did not become aware of former counsel’s ineffective
assistance of counsel until current counsel received a copy of the
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administrative record. However, the [Piñedas] do not state when
this occurred. Exhibits submitted with the motion indicate that
counsel who signed the pending motion submitted a brief to the
Tenth Circuit Court of Appeals on February 6, 2004, after receiving
the administrative record. The pending motion was not filed for
another four months.
R. at 2–3 (internal citations and quotation marks omitted). The Piñedas’ Second
Petition in this court seeks review of that denial.
II. DISCUSSION
A. Summary Dismissal of Appeal
The Piñedas’ First Petition challenges the BIA’s adverse ruling on their
appeal from the IJ’s removal order. Much of their brief to this court points to
alleged errors by the IJ. But procedural bar precludes the Piñedas from raising
these claims. Their failure to comply with the BIA’s requirement that they file
their promised brief, see 8 C.F.R. § 1003.1(d)(2)(E), led to the BIA’s dismissal of
their appeal. On a petition for review to this court we will not permit the
petitioner to circumvent proper procedural requirements of the BIA by presenting
contentions that were procedurally barred by the Board.
The Piñedas, however, have presented two arguments to overcome this
procedural bar. First, at oral argument the Piñedas claimed that the BIA
improperly imposed its briefing requirement in their case. They contended that
the BIA abused its discretion in not considering the appeal on the basis of the
grounds presented in the notice of appeal itself. But because this claim did not
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appear in their briefs to us, we will not address it. See Thomas v. Denny’s, Inc.,
111 F.3d 1506, 1510 n.5 (10th Cir. 1997).
Their second argument, which they did brief, is that they were denied due
process by the ineffective assistance of prior counsel in failing to file a brief in
support of their appeal to the BIA. They argue that this failure is cause to
overturn the BIA’s summary dismissal and remand to the BIA for proceedings on
the merits. But this claim of ineffective assistance of counsel cannot be heard by
this court in the first instance. Before we hear the issue the Piñedas must exhaust
their administrative remedies with the BIA. “[B]ecause the Board has created in
Lozada a mechanism for hearing due-process based claims of ineffective
assistance of counsel, such claims must first be presented to the Board.” Osei v.
INS, 305 F.3d 1205, 1208 (10th Cir. 2002). The appropriate method of
presentation is a motion to reopen the case before the BIA. See Soberanes v.
Comfort, 388 F.3d 1305, 1309 (10th Cir. 2004) (“[T]he means for
administratively correcting an instance of ineffective assistance of counsel is a
motion to reopen . . . .”). Failure to exhaust administrative remedies by not first
presenting a claim to the BIA deprives this court of jurisdiction to hear it. See
Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999).
To be sure, after submitting their First Petition to this court, the Piñedas
presented their ineffective-assistance-of-counsel claim to the BIA in a motion to
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reopen. But, as discussed below, that motion was untimely. We have recognized
in a variety of contexts that untimely filings with administrative agencies do not
constitute exhaustion of administrative remedies. See, e.g., Patel v. Fleming, 415
F.3d 1105, 1109, 1112 (10th Cir. 2005) (section 1983 litigation under the Prisoner
Litigation Reform Act); Esposito v. United States, 368 F.3d 1271, 1274 (10th Cir.
2004) (Federal Tort Claims Act); Harms v. IRS, 321 F.3d 1001, 1009-10 (10th
Cir. 2003) (untimely appeal to the Merit Systems Protection Board). The Piñedas’
untimely motion to reopen does not satisfy the exhaustion requirement.
Accordingly, we lack jurisdiction to review the Piñedas’ ineffective-assistance
claim and dismiss the First Petition to the extent that it raises that claim.
B. Denial of Motion to Reopen
The BIA denied the Piñedas’ motion to reopen as untimely. “We review
the BIA's decision on a motion to reopen for an abuse of discretion. The BIA
abuses its discretion when its decision provides no rational explanation,
inexplicably departs from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements.” Mickeviciute v. INS, 327 F.3d
1159, 1162 (10th Cir. 2003) (internal citations and quotation marks omitted). On
the other hand, there is no abuse of discretion when “although the BIA’s decision
is succinct, its rationale is clear, there is no departure from established policies,
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and its statements are a correct interpretation of the law.” Infanzon, 386 F.3d at
1362.
To avoid unnecessary delay in immigration proceedings, motions to reopen
must be brought promptly. “An alien may file only one motion to reopen removal
proceedings (whether before the Board or the Immigration Judge) and that motion
must be filed no later than 90 days after the date on which the final administrative
decision was rendered in the proceeding sought to be reopened.” 8 C.F.R.
§ 1003.2(c)(2). The 90-day period may be extended, however, by equitable
tolling. See Riley v. INS, 310 F.3d 1253, 1258 (10th Cir. 2002). To determine
whether tolling is appropriate, “[a] simple cursory comparison of the date of
filing and the regulatory time line for filing motions is not enough. Specifically,
the BIA must review Appellant’s due diligence along with his attempts to comply
with the BIA’s requirements detailed in Matter of Lozada . . . .” Id.Here, the BIA dismissed the Piñedas’ appeal of the IJ’s decision on
December 9, 2002. The period for filing the motion to reopen expired 90 days
later, on March 9, 2003. The motion to reopen was filed on June 22, 2004. The
Piñedas contend that the BIA did not properly consider their diligence when it
rejected their argument for equitable tolling. We disagree.
The government concedes that tolling would be appropriate up to the point
at which the Piñedas knew or should have known of prior counsel’s
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ineffectiveness. The Piñedas in turn concede that this point was reached in
December 2003, when present counsel received a copy of the administrative
record in the case and discovered that prior counsel had received a briefing
schedule from the BIA with which he had not complied. Based on these two
concessions, the motion would not have been due before March 2004. Even that
date, however, is three months before the motion was actually filed on June 22,
2004.
The Piñedas make essentially two arguments for further equitable tolling.
First, they claim to have exercised due diligence by pursuing the First Petition
before this court. Second, they argue that the additional time was necessary to
establish the prerequisites set forth in Lozada for the filing of the motion to
reopen. See Mickeviciute, 327 F.3d at 1162 n.2 (Lozada requires that a motion
based on a claim of ineffective assistance of counsel be supported by (1) an
“affidavit setting forth the agreement that was entered into with former counsel”;
(2) “evidence that former counsel was informed of the allegations and allowed the
opportunity to respond”; and (3) “evidence [that] the aggrieved party filed a
complaint with appropriate disciplinary authorities.”). We are not persuaded.
Pursuit of the First Petition in this court does not establish the requisite
diligence—diligence in pursuing the motion to reopen. Timeliness can be critical
in immigration cases. Removable aliens are not permitted to delay matters by
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pursuing multiple avenues of relief seriatim when no reason suggests why they
could not be pursued simultaneously. Present counsel filed the opening brief
regarding the First Petition on February 6, 2004. The Piñedas claim that it was
only after receiving the respondent’s answer brief (filed with this court on March
12, 2004) that they made a “strategic decision” to file a grievance against their
first counsel and a subsequent motion to reopen. Pet’r Br. Second Pet. at 50. But
that is precisely the point. It was a “strategic decision,” not necessity, that led
them to forgo a motion to reopen at the outset and rely solely on the First Petition,
“expecting that this court would directly address” the merits of that petition. Id.
at 51. We have not been given any reason why counsel could not have been
preparing the Lozada grievance and the motion to reopen while pursuing the First
Petition. Furthermore, even a determination of diligence up to March 12 would
be insufficient, as it was still more than 90 days thereafter that the motion was
filed.
The Piñedas’ second argument is that they needed the additional time to
comply with Lozada before filing the motion to reopen. But 90 days would have
been more than adequate to comply. And had the Piñedas been unable to fulfill
all the Lozada requirements within 90 days, they could still have filed the motion
and explained any unavoidable delay. See Lozada, 19 I. & N. Dec. at 639
(requiring that the motion “reflect whether a complaint has been filed with the
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appropriate disciplinary authorities regarding such representation, and if not, why
not”).
Thus, the record before us amply supports rejection of the equitable-tolling
argument on essentially the grounds stated by the BIA. To be sure, the BIA when
it ruled did not know the precise date on which the Piñedas had received the
administrative record, noting only that it must have been some time before the
filing of their February 6, 2004, opening brief with this court. But any absence of
evidence favorable to equitable tolling was the Piñedas’ fault, as they had the
burden of persuasion on the motion to reopen. Moreover, the BIA gave them
every benefit of the doubt by noting that even February 6 was more than 90 days
before the filing of the motion. The BIA did not abuse its discretion in denying
the motion to reopen.
III. CONCLUSION
Because the Piñedas failed to exhaust their administrative remedies by first
presenting their ineffective-assistance-of-counsel claim to the BIA, we DISMISS
the First Petition insofar as it raises that claim; in all other respects we DENY the
First Petition, AFFIRMING the BIA’s summary dismissal. We DENY the Second
Petition and AFFIRM the BIA’s denial of the Piñedas’ motion to reopen.
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