Adriana Mercedes Benavides Rivera v. U.S. Atty Gen

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
________________________ FEB 28, 2007
THOMAS K. KAHN
No. 06-14749 CLERK
Non-Argument Calendar
________________________
Agency Nos. A97-199-661
A97-199-662
ADRIANA MERCEDES BENAVIDES RIVERA,
ANDRES MAURICIO MEJIA VELA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 28, 2007)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Petitioners Adrianna Mercedes Benavides Rivera and Andres Mauricio
Mejia-Vela, through counsel, petition this court for review of the BIA’s final order
denying the reopening of an appeal of the IJ’s denial of their claims for asylum,
withholding of removal, and CAT relief.1 The BIA denied the motion to reopen as
untimely.
On appeal, Rivera, while acknowledging that the motion to reopen was not
filed within ninety days of the BIA’s denial of her motion for reconsideration,
nevertheless argues that equitable tolling principles should be applied because her
counsel was ineffective. Specifically, Rivera argues that her previous counsel
failed to file proper and timely motions, and he “misled” her until she later
confronted him.
We review the BIA’s denial of a motion to reopen for an abuse of discretion.
Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003). “Our review is
limited to determining whether there has been an exercise of administrative
discretion and whether the matter of exercise has been arbitrary or capricious.”
Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005) (citation and internal
quotation marks omitted). One way to show an abuse of discretion is to highlight
the application of an incorrect or improper legal standard. See In re Ford Motor
1
We refer to the petitioners as “Rivera,” because she is the lead petitioner in this case,
and Mejia-Vela was only included in the original asylum proceeding as a derivative applicant.
2
Co., 471 F.3d 1233, 1250 (11th Cir. 2006).
“Motions to reopen are disfavored, especially in a removal proceeding,
where, as a general matter, every delay works to the advantage of the deportable
alien who wishes merely to remain in the United States.” Abdi, 430 F.3d at 1149(citation and internal quotation marks omitted). An alien may file one motion to
reopen, and that motion “‘shall state the new facts that will be proven at a hearing
to be held if the motion is granted, and shall be supported by affidavits or other
evidentiary material.’” Id. (quoting INA § 240(c)(7)(A), (B), 8 U.S.C. §
1229a(c)(7)(A), (B)). “A motion to reopen proceedings shall not be granted unless
it appears to the Board that evidence sought to be offered is material and was not
available and could not have been discovered or presented at the former hearing.”
8 C.F.R. § 1003.2(c)(1) (quoted in Abdi, 430 F.3d at 1149).
“A motion to reopen immigration proceedings ‘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.’” Abdi, 430 F.3d at 1149 (quoting 8 C.F.R.
§ 1003.2(c)(2)). “[T]he statutory 90-day period for filing a notice of appeal is
mandatory and jurisdictional, and, therefore, it is not subject to equitable tolling.”
Id. at 1150. This is true, even though counsel’s deficient performance may have
caused the appeal to be untimely filed. Id. at 1148-50.
In Abdi, an attorney appealed the BIA’s order denying a petitioner’s claims
3
for relief, but failed to file a timely supporting brief, and so the BIA dismissed the
appeal. Id. at 1149. Over one year later, the petitioner, represented by different
counsel, filed a motion to reopen on the ground that the first attorney was
ineffective for failing to file the required supporting brief. Id. The BIA denied the
motion to reopen, and we affirmed on appeal because the motion was not timely
filed. Id. at 1149-50.
“Under the well-established prior panel precedent rule of this Circuit, the
holding of the first panel to address an issue is the law of this Circuit, thereby
binding all subsequent panels unless and until the first panel’s holding is overruled
by the Court sitting en banc or by the Supreme Court.” Smith v. GTE Corp., 236
F.3d 1292, 1300 n.8 (11th Cir. 2001).
Given our controlling precedent in Abdi, we conclude that the BIA here did
not abuse its discretion in denying the motion to reopen as untimely. Rivera did
not file her motion to reopen until May 12, 2006, indisputably more than ninety
days after the BIA denied her motion for reconsideration on December 6, 2005.
PETITION DENIED.
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