NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0722n.06
No. 09-4306
FILED
Nov 18, 2010
LEONARD GREEN, Clerk
FILED
UNITED STATES COURT OF APPEALS Nov 18, 2010
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
RAGUNI PATEL, )
)
Petitioner, ) ON PETITION FOR REVIEW OF
) AN ORDER OF THE BOARD
v. ) OF IMMIGRATION APPEALS
)
ERIC H. HOLDER, JR., Attorney )
General of the United States, ) OPINION
)
Respondent. )
_______________________________________)
Before: MOORE, SUTTON, and McKEAGUE, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Petitioner Raguni Patel (“Patel”) seeks
review of a final order issued by the Board of Immigration Appeals (“BIA”), denying as untimely
Patel’s motion to reopen removal proceedings. In her petition for review, Patel argues that the BIA
abused its discretion in: (1) denying Patel’s motion to reopen despite ineffective assistance of prior
counsel, and (2) declining to equitably toll the timeliness requirement for her motion on the same
grounds. Upon review, we conclude that the BIA did not abuse its discretion in denying as untimely
Patel’s motion to reopen and in declining to equitably toll the filing deadline. Patel did not establish
that she was prejudiced by the actions of her prior counsel because she has failed to demonstrate
prima facie eligibility for relief from removal. Therefore, Patel’s petition for review is DENIED.
No. 09-4306
Patel v. Holder
I. BACKGROUND
Patel is a native and citizen of India. She arrived in the United States from Canada on or
about August 23, 2004. On August 24, 2004, the Department of Homeland Security (“DHS”)
initiated removal proceedings against Patel by filing a Notice to Appear (“NTA”) which alleged that
Patel was removable for being present in the United States without having been admitted or paroled,
in violation of § 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1182(a)(6)(A)(i). On November 12, 2004, Patel, without the assistance of counsel, appeared
before an immigration judge (“IJ”) and admitted that she did not fear returning to India, but rather
that she had come to the United States for economic reasons. The IJ continued the hearing so that
Patel could search for representation.
On September 16, 2005, Patel, again without representation, appeared at her continued
hearing before a different IJ. At this hearing, Patel admitted all of the allegations listed in the NTA.
As a result, the IJ found that Patel was subject to removal and designated India as her country of
removal. With respect to her fear of return, Patel told the IJ that her parents would kill her if she
returned to India without money to repay the family’s creditors. In response, the IJ advised Patel that
she was time-barred from applying for asylum but could instead file for withholding of removal and
protection under the Convention Against Torture (“CAT”). The IJ provided Patel with an I-589
application and instructions for complying with its biometrics requirements. The IJ set a deadline
of November 30, 2005 for Patel to comply with the biometrics requirements and January 12, 2006
for her to submit to the court notice of compliance along with an I-589 application. Patel was
2
No. 09-4306
Patel v. Holder
advised that if she did not comply, and could not show exceptional circumstances for failure to
comply, her application would be deemed abandoned and relief would be denied.
On February 24, 2006, Patel appeared at a hearing with counsel; however, she did not submit
a completed I-589 application or evidence of biometrics compliance. Despite Patel’s failure to meet
the court’s original deadlines, the IJ set a new deadline of March 31, 2006 for biometrics compliance
and April 28, 2006 for Patel to file her application for relief. On July 25, 2006, three months after
the extended deadline had passed, Patel attempted to file an application for withholding of removal
and protection under the CAT; however, her application still did not provide proof of biometrics
compliance. On August 2, 2006, the IJ issued a written order deeming Patel’s applications
abandoned and denying relief because Patel had failed to meet the filing deadline and had provided
no proof that she had complied with the biometrics requirements.
On October 26, 2006, Patel appeared before the IJ with counsel, but again failed to provide
a completed application. At the hearing, Patel declined to seek voluntary departure and reserved her
right to appeal the IJ’s order of removal. The IJ found that Patel’s failure timely to file an
application for relief from removal or to comply with the biometrics requirements, without good
cause, constituted abandonment of the application. Accordingly, the IJ issued an oral decision
denying Patel’s applications for withholding of removal and protection under the CAT and ordering
her removed to India. Patel appealed the IJ’s decision to the BIA, which dismissed the appeal and
issued a final order of removal on July 11, 2008. The BIA noted that Patel “makes no claim on
appeal that she ever complied with the filing instructions given to her or that she has a meritorious
3
No. 09-4306
Patel v. Holder
claim to withholding of removal or protection under the Convention Against Torture.”
Administrative Record (“A.R.”) at 164.
On March 25, 2009, with the assistance of new counsel, Patel filed with the BIA a motion
to reopen, claiming that ineffective assistance of prior counsel had prevented her from properly filing
an application for relief. Patel also claimed that ineffective assistance of prior counsel excused her
failure to file the motion to reopen within ninety days of the BIA’s final order. She alleged that her
former attorney had not notified her of the dismissal of her appeal or of her option to file a motion
to reopen.
On September 30, 2009, the BIA denied Patel’s motion to reopen as untimely. The BIA
determined that Patel had failed to show that she was prejudiced by the conduct of her former
attorney because “[s]he ha[d] not made out a prima facie case of eligibility for relief from removal.”
A.R. at 2. Patel timely filed a petition for review in this court.
II. ANALYSIS
Patel claims that her removal proceedings should be reopened because she was prejudiced
by the ineffective assistance of her prior counsel. In particular, Patel argues that she was prejudiced
by her prior counsel’s failure timely to file an application for relief on her behalf, to notify her of the
denial of her appeal, and to file a motion to reopen. Consequently, Patel argues that the BIA abused
its discretion when it declined to equitably toll the filing period for her motion to reopen and then
denied her motion to reopen as untimely.
4
No. 09-4306
Patel v. Holder
We review the BIA’s denial of a motion to reopen for abuse of discretion. Allabani v.
Gonzales, 402 F.3d 668, 675 (6th Cir. 2005). The BIA abuses its discretion when the denial of a
motion to reopen “was made without a rational explanation, inexplicably departed from established
polices, or rested on an impermissible basis such as invidious discrimination against a particular race
or group.” Id. (internal quotation marks omitted). “However, where there is a claim of ineffective
assistance of counsel, we review this question of law de novo.” Id. at 676.
We conclude that Patel has “failed to establish prima facie eligibility for relief,” and we deny
Patel’s petition for review. See id.; see also INS v. Abudu, 485 U.S. 94, 104 (1988) (“[T]he BIA may
deny a motion to reopen . . . [when] the movant has not established a prima facie case for the
underlying substantive relief sought.”). A motion to reopen must be filed with the BIA “within 90
days of the date of entry of a final administrative order of removal.” INA § 240(c)(7), 8 U.S.C.
§ 1229a(c)(7). “Where an alien seeks to reopen a time-barred motion, the doctrine of equitable
tolling may be applied to permit reopening when the alien demonstrates that she received ineffective
assistance of counsel and was prejudiced thereby.” Mezo v. Holder, 615 F.3d 616, 620 (6th Cir.
2010). We may “decline[] to equitably toll the time period for filing motions to reopen . . . where
the petitioner fail[s] to establish prejudice from . . . [an] untimely appeal.” Id.
Patel’s claim of ineffective assistance of counsel fails because she has not established that
her former attorney’s performance prejudiced her case.1 In order to show prejudice, Patel must
1
Patel argues that she has satisfied the procedural requirements for establishing ineffective
assistance of counsel under Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). We note that
the Lozada requirements were abrogated in part by the Attorney General’s decision in Matter of
5
No. 09-4306
Patel v. Holder
demonstrate prima facie eligibility for the underlying relief sought. Allabani, 402 F.3d at 676-78;
see Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001) (holding that, because petitioners
“conceded that they are ineligible for cancellation of removal, they could not possibly be prejudiced
by counsel’s alleged ineffective assistance”). Patel was required to include her application for relief
in her motion to reopen with the Board, but she did not do so.2 In fact, Patel has not demonstrated
that she has ever properly filed an application for withholding of removal or protection under the
CAT, even after learning of the denial of her appeal and retaining new counsel. Given that Patel
cannot make a prima facie showing of entitlement to relief, Patel fails to show prejudice. See
Scorteanu v. INS, 339 F.3d 407, 414 (6th Cir. 2003) (denying relief on ineffective assistance grounds
when petitioner failed to make a prima facie showing of entitlement to equitable tolling).
III. CONCLUSION
Because Patel cannot show prejudice caused by ineffective assistance of prior counsel,
equitable tolling does not apply, and Patel’s motion to reopen is not timely. Therefore, the BIA did
Compean, 24 I. & N. Dec. 710 (A.G. 2009). However, in June 2009, the Attorney General vacated
the Compean decision and directed the BIA to apply the previously established Lozada standards
pending a comprehensive rulemaking process. Matter of Compean, 25 I. & N. Dec. 1 (A.G. 2009).
We do not need to reach the issue of whether Patel sufficiently complied with any relevant
procedural requirements because she has not demonstrated prejudice from her attorney’s deficient
performance.
2
A motion to reopen must be accompanied by the application for the requested relief with
supporting documentation. 8 C.F.R. §§ 1003.2(c)(1); Matter of Yewondwosen, 21 I. & N. Dec. 1025,
1026 (BIA 1997).
6
No. 09-4306
Patel v. Holder
not abuse its discretion in declining to equitably toll the filing period and in denying Patel’s motion
to reopen. Accordingly, we DENY Patel’s petition for review.
7