United States Court of Appeals
For the First Circuit
No. 06-2364
RAMÓN SANTIAGO GUERRERO-SANTANA,
Petitioner,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Selya and Cyr, Senior Circuit Judges.
Lazar Lowinger and Pamela Lindmark on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, and Benjamin J. Zeitlin, Trial Attorney, Office of
Immigration Litigation, on brief for respondent.
August 17, 2007
SELYA, Senior Circuit Judge. The petitioner, Ramón
Santiago Guerrero-Santana, seeks judicial review of a decision of
the Board of Immigration Appeals (BIA) denying his motion to reopen
a removal proceeding. In support of his petition, he suggests that
the BIA abused its discretion both by failing to consider his claim
of ineffective assistance of counsel and by refusing to apply
equitable tolling to relieve him from the adverse effect of a
missed deadline. Concluding, as we do, that the BIA did not abuse
its discretion, we deny the petition.
The circumstances are easily explained. The petitioner,
a citizen of the Dominican Republic, entered the United States
without inspection on or about December 13, 1996. Within a matter
of weeks, the authorities charged him with deportability under
former section 241(a)(1)(B) of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1251(a)(1)(B) (1996).
The removal proceeding was initiated by an order to show
cause, which required the petitioner to appear before an
immigration judge (IJ). At the petitioner's request, the
immigration court transferred venue from Houston, Texas, to Boston,
Massachusetts. Following the transfer, the IJ scheduled a hearing
for September 11, 1997. A notice was sent by certified mail,
return receipt requested, to the address provided by the
petitioner. That notice commanded him to appear for the scheduled
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hearing and advised him that failure to appear could result in an
order of deportation in absentia.
The court received a return receipt signed by the
petitioner and bearing a date of June 11, 1997. Nevertheless, the
petitioner failed to appear for the scheduled session. The IJ
entered a removal order in absentia.
In May of 2004 — approximately seven years later — the
petitioner, represented by counsel in the person of John Seabrook,
moved to reopen his case. In his motion papers, the petitioner
contended that he had not become aware of either the scheduling
notice or the deportation order until sometime in 2001. He
attempted to justify his ignorance of these facts by claiming that
the address he had provided to the immigration court was his
brother's and that, when he arrived in Massachusetts, his brother
and sister-in-law were in the throes of separating. As a result,
he was forced to rely on his sister-in-law for mail. Both the
petitioner's brother and sister-in-law furnished statements in
support of the foregoing scenario.
The petitioner's tale of woe did not end there. He added
that once he became aware of the deportation order in 2001, he
retained an attorney named James Dragon. He said that he hired
Dragon in conjunction with his wife, an American citizen whom he
had married earlier that year. But Dragon (or so the petitioner
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said) inexplicably failed to move to reopen his case as he had
directed.
The IJ denied the motion to reopen. Crucially, she found
that the petitioner had received appropriate notice of the
scheduled hearing. She premised this finding on the fact that the
petitioner personally had signed the return receipt. She added
that, by waiting approximately seven years before moving to reopen,
the petitioner had failed to comply with the ninety-day filing
deadline for motions to reopen. See 8 C.F.R. § 1003.23(b)(1).
Furthermore, the petitioner had not established that this delay was
justified by exceptional circumstances. By the same token, he had
not established prima facie eligibility for relief from
deportation.
The petitioner appealed from this ruling. The BIA
rejected his appeal, adopting and affirming the IJ's decision on
May 17, 2005. The petitioner did not seek judicial review but,
rather, frittered away yet another year before again moving to
reopen.
This time, the petitioner was represented by his third
lawyer in a five-year span — attorney Lazar Lowinger. In his
motion to reopen, filed with the BIA, he reiterated his lack of
notice claim, which the BIA already had rejected. He did however,
add a new wrinkle — an allegation that he had received ineffective
assistance of counsel from his two previous attorneys.
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In this regard, the petitioner claimed that Dragon (who
had since been disbarred on unrelated grounds) had neglected to
file a motion to reopen on his behalf. His second lawyer,
Seabrook, had rendered ineffective assistance, the petitioner
maintained, by failing to raise Dragon's malpractice as a ground
for relief in the first motion to reopen. While the petitioner
conceded that his second motion to reopen was untimely, he claimed
an entitlement to equitable tolling based on his counsels'
ineffectiveness.
The BIA rejected the petitioner's second motion to
reopen, noting that he had proffered no evidence to prove that
ineffective assistance of counsel had caused the untimely filing of
the motion. This petition for judicial review followed. In it,
the petitioner repeats the claims presented in his second motion to
reopen and asseverates that his untimely filing should be excused
because (i) his due process rights were violated due to ineffective
assistance of counsel and (ii) that ineffective legal
representation entitled him to equitable tolling of the ninety-day
filing deadline.
We preface our analysis of this asseverational array with
a precis of the applicable legal standards. Motions to reopen
removal proceedings are disfavored as contrary to "the compelling
public interests in finality and the expeditious processing of
proceedings." Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007)
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(quoting Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir. 2005)).
Consequently, we accord considerable deference to the BIA's
decision on a motion to reopen and review such a decision solely
for abuse of discretion. See Raza, 484 F.3d at 127; Roberts, 422
F.3d at 35. This means, in effect, that the BIA's decision will
stand unless the petitioner can show that it rests on an error of
law or that it is patently arbitrary. Raza, 484 F.3d at 127;
Roberts, 422 F.3d at 35.
A myriad of statutes and regulations attends the conduct
of removal proceedings. Under this regime, motions to reopen are
limited both numerically and temporally. Thus, an alien ordinarily
may file only a single motion to reopen a removal proceeding — and
that motion ordinarily must be submitted within ninety days of the
rendition of the final administrative decision. See 8 C.F.R. §
1003.23(b)(1). To be sure, the ninety-day deadline is subject to
enumerated exceptions. See, e.g., 8 U.S.C. § 1229a(c)(7)(C)(ii),
(iv); 8 C.F.R. §§ 1003.2(c)(3)(i)-(iv), 1003.23(b)(4)(i)-(iv). To
cite one example, the deadline is 180 days when an order is entered
in absentia and the alien shows the existence of exceptional
circumstances. See 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1). To cite
another example, the deadline may be extended indefinitely when the
alien shows mis-delivery or non-delivery of the statutorily
required notice. See id. § 1003.23(b)(4)(iii)(A)(2).
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In this case, the petitioner's due process and equitable
tolling claims both implicate the quality of his legal
representation. While aliens have no constitutional right to
counsel in removal proceedings, they are entitled to due process.
See Lozada v. INS, 857 F.2d 10, 13 (1st Cir. 1988). Thus,
ineffective assistance of counsel in a removal proceeding may
constitute a denial of due process if (and to the extent that) the
proceeding is thereby rendered fundamentally unfair. Id.
Before us, the petitioner attempts to use his ineffective
assistance of counsel claim to excuse the untimely filing of his
second motion to reopen. He argues that his previous counsels'
negligent representation entitled him to a broadening of the
ninety-day window because it prevented him from making a timeous
filing.
The petitioner's argument is deeply flawed. His claims
of ineffective assistance of counsel, whatever their merit or lack
of merit, cannot justify his failure to file the second motion to
reopen within the prescribed period. Regardless of what legal
missteps may have occurred earlier, a conspicuous fourteen-month
gap exists between the denial of the petitioner's first motion to
reopen and the filing of his second motion to reopen. The
petitioner has failed to explain how his previous counsels'
shortcomings caused this failure to comply with the temporal
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deadline.1 The merits of his ineffective assistance of counsel
claim are, therefore, immaterial.
That ends this aspect of the matters. The petitioner has
failed to forge a causal link between the alleged ineffectiveness
of his first two lawyers and the untimely filing of his second
motion to reopen. And, finally, he has failed to show that he
falls within any of the prescribed exceptions.
This leaves the petitioner's claim of equitable tolling.
This court has not yet decided whether the BIA has either the
authority or the obligation to excuse the late filings on the basis
of equitable tolling. See, e.g., Boakai v. Gonzales, 447 F.3d 1,
3 (1st Cir. 2006); Jobe v. INS, 238 F.3d 96, 100 (1st Cir. 2001)
(en banc). We need not do so today: as we have said, the
petitioner has made no developed argument that ineffective
assistance of counsel caused his second motion to reopen to be
late.
Even if we were to overlook this glaring causation
problem, equitable tolling would hardly seem appropriate here.
After all, that doctrine is to be invoked sparingly. See Irwin v.
Dep't of Vet. Aff., 498 U.S. 89, 96 (1990); Jobe, 238 F.3d at 100.
The doctrine is not available as a means of rescuing a party who
1
We note that the petitioner makes no assertion that he was
not seasonably informed of the BIA's May 15, 2005 decision.
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has failed to exercise due diligence. See Neverson v. Bissonnette,
261 F.3d 120, 124 n.2 (1st Cir. 2001); Jobe, 238 F.3d at 100.
Although the petitioner insists that he has vigorously
pursued his rights by retaining attorneys, the record shows
otherwise. The petitioner waited approximately four years after
missing his initial court date before he hired an attorney. A
series of other delays followed. Last, but far from least, his
decision to sit idly by for fourteen months without either seeking
judicial review of the BIA's May 2005 decision or promptly moving
to reopen the proceeding at that point cannot on this record be
ascribed to attorney error. Simply put, the petitioner's failure
to file his second motion to reopen within the prescribed period
was not "out of his [own] hands." Jobe, 238 F.3d at 100 (citing
Salois v. Dime Sav. Bank, 128 F.3d 20, 25 (1st Cir. 1997)).
We need go no further. For the reasons elucidated above,
we conclude, without serious question, that the petition for
judicial review must be denied.
So Ordered.
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