Barrios, Martin G. v. Gonzales, Alberto R.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 15, 2005
Decided June 27, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 04-2241
MARTIN G. BARRIOS, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v.
No. A76-249-377
ALBERTO GONZALES,
Respondent.
ORDER
Martin Barrios petitions for review of an order of the Board of Immigration
Appeals denying his motion to reconsider as untimely. Barrios concedes that his
motion was filed more than 30 days after the Board’s final decision but argues that
the limitations period should have been equitably tolled. We deny the petition for
review because even if the time limit for filing a motion to reconsider may be
equitably tolled, Barrios has not established that tolling would have been
warranted.
I. Background
Barrios, a native of Mexico, applied for lawful permanent residence in
December 1996. His application was denied, and he was then served with a Notice
to Appear, charging him with removability under sections 212(a)(5)(A)(I) and
212(a)(7)(A) of the Immigration and Nationality Act. Barrios admitted removability
but applied for discretionary cancellation of removal or, in the alternative,
voluntary departure. An immigration judge denied the application after
No. 04-2241 Page 2
determining that Barrios had not established two of the statutory requirements for
cancellation: continuous physical presence in the United States for ten years and
“exceptional and extremely unusual hardship” to a spouse, child, or parent who is a
citizen or permanent resident of the United States. 8 U.S.C. § 1229b(b)(1)(A),(D).
Barrios appealed the decision to the Board, which summarily dismissed the appeal
when his attorney, Gary Spraker, failed to file a brief. Barrios then learned that
Spraker had been suspended from practice. He retained new counsel, Rosalba
Pina, and on June 10, 2002, filed a motion to reopen the appeal, claiming ineffective
assistance of counsel based on Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988),
aff’d, 857 F.2d 10 (1st Cir. 1988). In its decision of November 12, 2002, the Board
determined that counsel had been ineffective, granted the motion to reopen the
appeal, and then proceeded to dismiss the appeal on the merits. The Board
reasoned that Barrios had not supplied evidence that undermined the IJ’s findings
with regard to hardship and continuous physical presence.
On May 19, 2003, more than six months after the Board’s decision, Barrios
(still represented by Pina) filed a motion to reconsider. He acknowledged that the
30-day time period for filing the motion had expired, see 8 C.F.R. § 1003.2(b)(2), but
argued that the time limit should be equitably tolled because he “did not receive
any notification from the Board regarding Spraker’s suspension while his appeal
was pending.” Had he been notified, Barrios argued, “he would have been provided
an opportunity to seek representation as required by due process,” and “[f]or this
reason this matter is subject to equitable tolling.” Among the evidence submitted
with the motion was an affidavit in which Barrios attested that some of records
were still in the possession of Spraker, his former attorney. Without responding to
the equitable tolling argument, the Board denied the motion to reconsider as
untimely. Barrios appeals.
II. Analysis
We review the Board’s decision to deny a motion to reconsider under the
“highly deferential” abuse of discretion standard. Ali v. Ashcroft, 395 F.3d 722, 731
(7th Cir. 2004). On appeal Barrios primarily argues that the Board erred by not
applying the doctrine of equitable tolling to excuse the lateness of his motion to
reconsider. He contends that tolling was warranted because of the ineffective
assistance of his former attorney, Spraker.
We have not yet decided whether the 30-day time period for filing motions to
reconsider is subject to equitable tolling. If the time period is procedural, not
jurisdictional, it is subject to tolling. See Joshi v. Ashcroft 389 F.3d 732, 735 (7th
Cir. 2004). In Joshi, we held that the restriction on filing multiple motions to
reopen (a similar restriction exists for motions to reconsider) is not jurisdictional.
Id. We explained that deadlines governing the transition from one court or tribunal
No. 04-2241 Page 3
to another are generally jurisdictional, while successive motions addressed to the
same tribunal are not. Id. We recently relied in part on Joshi in holding that the
180-day limit for motions to reopen proceedings after an in absentia removal order,
8 U.S.C. § 1229a(b)(5)(C)(ii), was non-jurisdictional and therefore subject to the
doctrine of equitable tolling. Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir.
2005). Other circuits have reached the same conclusion. See Borges v. Gonzales,
402 F.3d 398, 405-406 (3d Cir. 2005); Riley v. INS, 310 F.3d 1253, 1258 (10th Cir.
2002); Iavorksi v. INS, 232 F.3d 124, 130 (2d Cir. 2000); Lopez v. INS, 184 F.3d
1097, 1100 (9th Cir. 1999); but see Anin v. Reno, 188 F.3d 1273, 1278 (11th Cir.
1999) (180-day time period for motions to reopen is “jurisdictional and
mandatory.”).
The cases cited above address motions to reopen rather than motions to
reconsider; more specifically, they concern motions to reopen proceedings under a
statutory subsection that calls for a lack of notice or “exceptional circumstances” to
explain why the alien did not appear for removal proceedings, see 8
U.S.C. § 1229a(b)(5)(C)(ii). But both motions seek review of a decision by the same
tribunal that issued it; thus both time limits are non-jurisdictional under the logic
of Joshi, suggesting that equitable tolling would apply equally to both cases. See
Stone v. INS, 514 U.S. 386, 405 (1995) (jurisdictional limitations not subject to
tolling). Barrios assumes as much. However, it might be argued that the nature of
a motion to reopen renders it a more likely candidate for equitable tolling than a
motion to reconsider. As we have explained, “[a] motion to reopen asks for
reconsideration on the basis of facts or evidence not available at the time of the
original decision, such as changed circumstances.” Patel v. Ashcroft, 378 F.3d 610,
612 (7th Cir. 2004). On the other hand, a motion to reconsider “asks that a decision
be reexamined in light of additional legal arguments, a change of law, or an
argument that was overlooked earlier.” Id. Because a motion to reopen aims to call
attention to information that could not have been presented earlier, it might lend
itself to equitable tolling in a way that a motion for reconsideration—which
“rehashes arguments that should have been presented the first time around,”
id.—may not. But we need not pursue the issue further.
Barrios has not presented a convincing argument that his lateness in seeking
reconsideration should be excused even if the time period can be tolled. He
contends that the Board erred by not tolling the limitations period “because Barrios
argued ineffective assistance of counsel.” Barrios argues here, as he did before the
Board, that Spraker’s ineffective assistance before the IJ and on appeal to the
No. 04-2241 Page 4
Board, where Spraker failed to file a brief, entitled him to equitable tolling of the
30-day period.1*
“[T]he test for equitable tolling, both generally and in the immigration
context . . . is whether the claimant could reasonably have been expected to have
filed earlier.” Pervaiz, 405 F.3d at 490. Here, the relevance of Spraker’s ineffective
assistance to the lateness of the motion to reconsider is unclear because he did not
represent Barrios at any time during the six months it took to seek reconsideration.
Barrios found out about Spraker’s suspension from practice sometime after the
Board’s dismissal of his appeal in March 2002 for failure to file a brief. He had new
counsel, Pina, by the time he filed the motion to reopen in June 2002. The Board
granted that motion, reopened the appeal, and dismissed it on the merits in
November 2002. Barrios, still represented by Pina, moved to reconsider that
decision more than six months2**later without offering a legitimate reason for which
he hadn’t sought reconsideration within 30 days. The justification he
offered—Spraker’s ineffective assistance—had already been accepted as a reason to
reopen the appeal but was irrelevant to the motion to reconsider. Barrios’s other
arguments in the motion to reconsider—that his counsel was ineffective before the
IJ, that the Board misapplied the continuous physical presence rules, and that the
Board should have remanded to the IJ rather than reaching the merits—all
challenge the Board’s decision to dismiss the appeal on the merits. Although these
arguments may present appropriate grounds for reconsideration, they do not bear
on the applicability of equitable tolling to the 30-day time period. Barrios did not
file his motion in a timely manner and did not explain why he could not have been
reasonably expected to file earlier.
1
Taking umbrage at the government’s contention in its brief that Barrios
supplied “no reason” for the lateness of his motion, Barrios argues in his reply brief
that the delay was caused by difficulties his new counsel encountered in obtaining
“crucial documents” from attorney Spraker. And at argument, Barrios suggested
that the delay was in part due to the time it took to file a request for documents
under the Freedom of Information Act. However, arguments advanced for the first
time in a reply brief are waived, see United States v. Stevens, 380 F.3d 1021, 1025
(7th Cir. 2004), as are those presented for the first time at oral argument, see
Szczesny v. Ashcroft, 358 F.3d 464, 465 (7th Cir. 2004). Moreover, Barrios did not
present these arguments in his brief to the Board. See Huang v. Gonzales, 403 F.3d
945, 951 (7th Cir. 2005).
2
The government erroneously states on pages 12, 16, and 20 of its brief that
the motion was 17-18 months late.
No. 04-2241 Page 5
Barrios also makes the separate, somewhat confusing, argument that the
Board abused its discretion in denying the motion to reconsider because it “ignored
the crucial aspect that Barrios received notice of former counsel’s suspension after
his appeal was dismissed.” Because he did not have notice until that time, Barrios
contends, he “was unaware that while his appeal was pending he would require
new competent counsel to represent him during the appellate process.” Here,
Barrios appears to argue that the Board should not have decided the appeal based
only on evidence submitted with the motion to reopen because he never had an
opportunity to fully prepare an appeal with competent counsel. But this argument
attacks the Board’s dismissal of the appeal; it does not address the denial of the
motion to reconsider. Likewise, Barrios’s argument regarding the proper
application of the continuous physical presence rule attacks the dismissal of the
appeal, which is not before this court. This court’s appellate review is limited to the
BIA’s final orders of removal and it will therefore not look beyond the Board’s
stated procedural reasons for dismissal. Awe v. Ashcroft, 324 F.3d 509, 514 (7th
Cir. 2003); see Laboski v. Ashcroft, 387 F.3d 628, 632 (7th Cir. 2004). Moreover,
this court lacks jurisdiction to review denials of discretionary relief. See 8 U.S.C.
§ 1252(B).
Finally, Barrios argues that the Board violated his due process right “to a full
and fair immigration proceeding” by failing to address equitable tolling in its
decision. To make a due process claim, Barrios would have to show that he has a
liberty or property interest in the outcome of the proceedings. Ali, 395 F.3d at 732.
But this court has held that an alien cannot have a liberty or property interest in
cancellation of removal because it is a form of discretionary relief, the denial of
which does not implicate due process. Id. Accordingly, his due process argument
fails.
For the reasons stated herein, we DENY the petition for review.