Neves v. Holder

United States Court of Appeals
For the First Circuit

No. 07-1091

KELMER DA SILVA NEVES,

Petitioner,

v.

ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,

Respondent.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before
Lynch, Chief Judge,
Torruella and Ebel,** Circuit Judges.

Saher Joseph Macarius with whom Audrey Botros and Law
Offices of Saher Joseph Macarius were on brief for petitioner.
Stacey I. Young, Trial Attorney, Office of Immigration
Litigation, Civil Division, with whom Tony West, Assistant
Attorney General, and Joshua E. Braunstein, Assistant Director,
Office of Immigration Litigation, were on brief for respondent.

July 21, 2010

*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric
H. Holder, Jr. has been substituted for former Attorney General
Michael B. Mukasey as the respondent.
**
Of the Tenth Circuit, sitting by designation.
 PER CURIAM. Kelmer Da Silva Neves, a native and citizen

of Brazil, petitions for review of the Board of Immigration

Appeals's (BIA) December 14, 2006, denial of his second motion to

reopen proceedings. The government's efforts to remove him from

the country started in 1999. We deny the petition.

Neves's second motion to reopen was time- and number-

barred under 8 U.S.C. § 1229a(c)(7)(A), (C)(i) and 8 C.F.R.

§ 1003.2(c)(2). Save for several exceptions not at issue here,

those provisions allow an alien to file only one motion to reopen

proceedings based on new facts and require the alien to do so

within ninety days after the final order of removal. Neves argued

before the BIA that he was nonetheless entitled to equitable

tolling of these filing requirements, or in the alternative that

the BIA should sua sponte reopen proceedings, because of

ineffective assistance of counsel. The BIA found that Neves was

ineligible for equitable tolling because he had failed to show he

had exercised due diligence in pursuing his claim and declined to

exercise its sua sponte authority to reopen.

This court initially denied Neves's petition on the

ground then urged by the government: that the BIA's finding of a

lack of due diligence, on which the denial primarily rested, was a

factual determination that federal courts lacked jurisdiction to

review. See Da Silva Neves v. Holder, 568 F.3d 41, 42-43 (1st Cir.

2009) (per curiam). This court further held that it lacked

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jurisdiction to review the BIA's discretionary denial of sua sponte

reopening. Id. at 43. Neves filed a petition for a writ of

certiorari in the Supreme Court.

While Neves's petition was pending, the Supreme Court

decided Kucana v. Holder, 130 S. Ct. 827 (2010), in which it held

that decisions on motions to reopen proceedings, like other

proceedings made discretionary by regulation and not by statute,

are generally subject to judicial review. Id. at 831, 840. In

light of Kucana, in its reply brief to Neves's petition for writ of

certiorari, the government abandoned its earlier jurisdictional

position and recommended that the case be granted, vacated, and

remanded. The Supreme Court granted certiorari and vacated and

remanded the case to this court "for further consideration in light

of Kucana v. Holder." Neves v. Holder, No. 09-650, 2010 WL

1946733, at *1 (U.S. May 17, 2010) (mem.).

We hold that we have jurisdiction to review the BIA's

decision to deny equitable tolling of the time and number

limitations governing Neves's second motion to reopen but not to

review the BIA's refusal to exercise its sua sponte authority to

reopen. Even assuming arguendo that equitable tolling of these

requirements is available, the BIA did not abuse its discretion in

denying the motion. The BIA did not abuse its discretion in

finding that Neves failed to show he had exercised due diligence in

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pursuing reopening, and substantial evidence supported that factual

determination.

I.

Neves entered the United States as a B-2 visitor in 1999

and overstayed. On December 2, 1999, the Immigration and

Naturalization Service (INS) issued a Notice to Appear. Neves

conceded removability and applied for asylum and withholding of

removal, claiming political persecution.

On November 1, 2000, an Immigration Judge (IJ) denied

Neves's application for asylum and withholding of removal, finding

that he was not credible on his claims of past persecution in

Brazil and that his claims did not amount to persecution in any

event. The IJ found Neves ineligible for voluntary departure. At

this point, Neves was being represented by Joarez Reis, who had

falsely represented himself as being a licensed attorney. Reis

filed a notice of appeal to the BIA, and he listed as the

forwarding address for correspondence a post office box that Reis

had rented and that Reis had stopped checking when he fled criminal

prosecution in Massachusetts. The BIA sent notice to that address.

Neves hired John Dvorak as his new attorney in June 2001,

but Dvorak did not file an appearance until April 2002. On

September 25, 2001, the BIA dismissed Neves's appeal as moot.

Specifically, because the BIA was unable to reach Neves by mail at

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the address Reis had given the court, the BIA concluded that

Neves's appeal had apparently been abandoned.

Nearly two years later, on August 21, 2003, Neves filed

his first motion to reopen, requesting reconsideration of the BIA's

September 2001 decision and reinstatement of voluntary departure.

At this point, Neves was represented by yet another attorney, Gary

Yerman. Neves acknowledged that his first motion to reopen was

untimely. Neves argued that the BIA should nonetheless consider

the motion because the abandonment of his appeal by Reis and the

delay in filing his motion to reopen were caused by the ineffective

assistance of Neves's former representatives, Reis and Dvorak.

Neves also admitted that he had learned of the BIA's prior order in

August 2002 but waited another year to file his first motion to

reopen.

On December 3, 2003, less than four months later, the BIA

denied this motion as untimely and held that Neves was ineligible

for equitable tolling. In addition to rejecting Neves's

ineffective assistance claim, the BIA found that Neves had not

exercised due diligence in pursuing his claim. A year had elapsed

between August 2002, when Neves acknowledged he had learned of the

BIA's September 2001 decision, and August 2003, when Neves filed

his motion to reopen. The denial of this first motion to reopen

was not the subject of a timely petition for review and is not

before us.

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 Two and a half years later, on June 30, 2006, Neves filed

a second motion to reopen proceedings, seeking readjustment of

status under section 245(i) of the Immigration and Nationality Act

(INA), 8 U.S.C. § 1255(i). Now represented by another new

attorney, Neves argued that the time and number limitations on his

second motion should be equitably tolled, even though the motion

was otherwise time- and number-barred, because of attorney Yerman's

deficient performance in handling Neves's first motion to reopen.1

Neves further claimed that he had exercised due diligence by

consistently contacting Yerman between 2003 and 2006 for updates on

the status of his first motion to reopen. Neves said he was

informed by one of Yerman's employees that the BIA might take years

to issue its decision and that he should be patient. He provided

no independent corroboration of his assertions. Neves claimed he

only discovered in early June 2006 that the BIA had denied his

first motion to reopen in 2003.

On December 14, 2006, less than six months later, the BIA

denied this second motion to reopen as time- and number-barred and

found Neves ineligible for equitable tolling. Though the BIA found

that Neves had substantially complied with the requirements to show

ineffective assistance of counsel by Yerman, it also found that

1
Specifically, Neves claimed Yerman failed to file
appropriate documentation in support of his first motion to reopen,
did not ask for appropriate relief, and failed to notify Neves of
the BIA's denial of relief for three years.

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Neves had failed to demonstrate he had exercised due diligence in

pursuing his claim. Neves, the BIA found, was unable to provide

the dates or details of when he contacted Yerman from 2003 to 2006

or to provide "sufficient specific, relevant information to

corroborate his generalized assertion of due diligence." The BIA

also declined to sua sponte reopen the motion. This petition

followed.

II.

A. Jurisdiction

The Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA) amended the INA by, inter alia,

explicitly identifying several immigration matters "not subject to

judicial review." 8 U.S.C. § 1252(a)(2); Kucana, 130 S. Ct. at

828. Insulated matters include any action of the Attorney General

"the authority for which is specified under this subchapter to be

in the discretion of the Attorney General." 8 U.S.C

§ 1252(a)(2)(B)(ii). Kucana held, on statutory construction and

separation of powers grounds, that this exclusion from judicial

review did not preclude review of decisions left to the discretion

of the Attorney General by regulation and not by statute. Kucana,

130 S. Ct. at 831.

Two precepts relevant to this case flow from that

holding. First, because motions to reopen belong to the category

of decisions committed to the Attorney General's discretion by

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regulation, and not by statute, Kucana expressly held that courts

generally have jurisdiction to review the BIA's decision to grant

or deny these motions. Id. at 840. This case therefore falls into

the general category of matters over which we can exercise

jurisdiction. Neves has petitioned for review of the BIA's denial

of his second motion to reopen, and his petition implicates none of

the other jurisdictional bars set out in 8 U.S.C. § 1252(a)(2).2

Second, unless barred by statute from review, denials of

motions to reopen are generally subject to judicial review

irrespective of whether the BIA's decision rested on a legal or

constitutional ruling. The existence of a legal or constitutional

question, as opposed to a factual issue, only restores jurisdiction

over matters otherwise barred from review. See 8 U.S.C.

§ 1252(a)(2)(D). Courts do not lose jurisdiction to review the

BIA's denial of a motion to reopen or other ordinarily reviewable

matters merely because the BIA rested its conclusion upon an

underlying factual determination. See id.

Our earlier opinion held that no legal or constitutional

issues were raised by the BIA's determination that Neves's time-

and number-barred motion to reopen was not subject to equitable

tolling because of Neves's failure to show due diligence. See

2
Neves has not sought review of any of the kinds of decisions
on admissibility by immigration officers insulated from review
under 8 U.S.C. § 1252(a)(2)(A), and he is not removable as an
aggravated felon, see id. § 1252(a)(2)(C).

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Neves, 568 F.3d at 42. On that basis, we held we were barred from

exercising jurisdiction to review the BIA's decision. See id. at

42-43. That holding, as Kucana makes clear, was erroneous.3

Kucana does not affect the subsidiary holding in our

earlier opinion that federal courts lack jurisdiction to review the

BIA's decision to exercise or decline to exercise its sua sponte

authority to reopen proceedings. Such decisions are "committed to

[the BIA's] unfettered discretion" by law, Luis v. INS, 196 F.3d

36, 40 (1st Cir. 1999); see also 8 C.F.R. § 1003.2(a), and "the

very nature of the claim renders it not subject to judicial

review," Luis, 196 F.3d at 40; see also Caldero-Guzman v. Holder,

577 F.3d 345, 348 (1st Cir. 2009). Nor does it affect our earlier

determination that no constitutional claims were presented.

B. Equitable Tolling

We turn to Neves's argument that the BIA abused its

discretion by refusing to allow his otherwise time- and number-

3
Several of this circuit's earlier cases also relied on this
erroneous premise. Boakai v. Gonzales, 447 F.3d 1 (1st Cir. 2006),
first raised this premise, though its ultimate holding of a lack of
jurisdiction rested on the petitioner's status as an alien
removable as an aggravated felon. Id. at 4. In Fustaguio do
Nascimento v. Mukasey, 549 F.3d 12 (1st Cir. 2008), this court
suggested that it lacked jurisdiction to review a factual
determination by the BIA that a petitioner's lack of diligence made
her ineligible for equitable tolling, id. at 18-19, but held on the
merits that the BIA's factual determination was not an abuse of
discretion, id. at 19. In Ouk v. Mukasey, 551 F.3d 82 (1st Cir.
2008), this court denied review of the alien's petition on purely
jurisdictional grounds, reasoning that the BIA had made a factual
determination that the alien had not exercised due diligence and
was ineligible for equitable tolling. Id. at 83.

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barred second motion to reopen by application of equitable tolling.

We review the BIA's decision to grant or deny a motion to reopen

for abuse of discretion. Vaz Dos Reis v. Holder, 606 F.3d 1, 3

(1st Cir. 2010). We "uphold the agency's subsidiary findings of

fact as long as they are supported by substantial evidence," id.,

and we "set[] aside a decision only where it rests on an error of

law or reflects arbitrary or capricious decisionmaking," Oliveira

v. Holder, 568 F.3d 275, 277 (1st Cir. 2009). There was no error

of law and the decision was far from arbitrary or capricious.

We assume arguendo, but do not decide, that the time and

number limits on motions to reopen are subject to equitable

tolling. See Chedid v. Holder, 573 F.3d 33, 37 (1st Cir. 2009)

(noting that this issue remains an open question in this circuit).

Even if available in this context, equitable tolling "is a rare

remedy to be applied in unusual circumstances, not a cure-all for

an entirely common state of affairs." Wallace v. Kato, 549 U.S.

384, 396 (2007); see also Jobe v. INS, 238 F.3d 96, 100 (1st Cir.

2001) (en banc).

"Generally, a litigant seeking equitable tolling bears

the burden of establishing two elements: (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408,

418 (2005); see also Holland v. Florida, No. 09-5327, 2010 WL

2346549, at *12 (U.S. June 14, 2010); Neverson v. Farquharson, 366

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F.3d 32, 42 (1st Cir. 2004).4

The equitable tolling doctrine extends statutory

deadlines in extraordinary circumstances for parties who were

prevented from complying with them through no fault or lack of

diligence of their own. See Fustaguio Do Nascimento v. Mukasey,

549 F.3d 12, 18-19 (1st Cir. 2008); Gonzalez v. United States, 284

F.3d 281, 291 (1st Cir. 2002). A party seeking equitable tolling

must have diligently pursued his rights for the entire period he

seeks tolled, not merely once he discovers the underlying

circumstances warranting tolling. See Iavorski v. INS, 232 F.3d

124, 134 (2d Cir. 2000). The BIA could conclude that Neves's

failure to exercise due diligence was fatal to his equitable

tolling argument.5 See Chedid, 573 F.3d at 37; see also Vaz Dos

Reis, 606 F.3d at 4 n.3.

4
In Jobe, this circuit listed five criteria for equitable
tolling, which we consider as factors within the Supreme Court's
two-part standard. Those criteria are "(1) a lack of actual notice
of a time limit; (2) a lack of constructive notice of a time limit;
(3) diligence in the pursuit of one's rights; (4) an absence of
prejudice to a party opponent; and (5) the claimant's
reasonableness in remaining ignorant of the time limit." 238 F.3d
at 100; see also Dawoud v. Holder, 561 F.3d 31, 36 (1st Cir. 2009).
5
We need not decide whether the ineffective assistance of
counsel Neves alleged here qualified as an extraordinary
circumstance. Cf. Holland, 2010 WL 2346549, at *13 (distinguishing
between "garden variety claim[s] of excusable neglect," such as a
"miscalculation" regarding a filing deadline, and "more serious
instances of attorney misconduct"); Rashid v. Mukasey, 533 F.3d
127, 130-31 (2d Cir. 2008) (requiring an alien to show that
counsel's performance was so deficient that it violated due
process).

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 Neves argues that the ineffective assistance of his

counsel Yerman from 2003 until early June 2006, when Neves

discovered Yerman's failure to apprise him of the BIA's 2003

decision, prevented him from timely seeking reopening. Neves says

he exercised due diligence thereafter by filing his second motion

to reopen on June 30, 2006, within one month of learning of

Yerman's deficiency and the BIA's denial of his first motion to

reopen.

The BIA did not base its denial of Neves's second motion

to reopen on whether Neves had diligently pursued his rights after

early June 2006. The BIA found that Neves failed to show that he

had diligently pursued his rights before this point, from the date

of the BIA's 2003 denial of his first motion to reopen through his

discovery of Yerman's ineffective assistance in early June 2006.

Fatally to his claim, Neves did not timely contest the

BIA's finding, and so it is waived.6 The argument is in any event

meritless. As the BIA found, neither Neves's affidavits regarding

his contacts with Yerman's office, nor Yerman's letter to Neves,

provided any specific details about the employee responsible for

not notifying Neves or the dates or frequency of Neves's contacts

6
Neves challenges this finding only in his supplemental
brief, arguing that the BIA wrongly concluded that no specific
evidence supported his assertion of due diligence because it failed
to give weight to a sworn affidavit from Yerman, Neves's previous
counsel. Neves never made this argument in his original brief, and
it is waived.

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with Yerman's office regarding the status of his first motion to

reopen. Substantial evidence supported the BIA's conclusion that

Neves failed to show he exercised reasonable diligence during this

period.

We cannot say the BIA abused its discretion in denying

equitable tolling under these circumstances. See Rashid v.

Mukasey, 533 F.3d 127, 132 (2d Cir. 2008) (requiring due diligence

during "both the period of time before the ineffective assistance

of counsel was or should have been discovered and the period from

that point until the motion to reopen is filed"); cf. Holland, 2010

WL 2346549, at *14 (finding reasonable diligence in a habeas case

when a habeas petitioner both repeatedly contacted his deficient

counsel in the period before the AEDPA deadline elapsed and also

prepared his own habeas petition and filed it the day he discovered

the deadline had lapsed). We need not reach respondent's alternate

argument that Neves had in any event failed to show a prima facie

case for readjustment of status.

The petition is denied.

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