United States Court of Appeals
For the First Circuit
No. 07-2608
LUZIA FUSTAGUIO DO NASCIMENTO,
Petitioner,
v.
MICHAEL B. MUKASEY,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Boudin, Circuit Judges,
and Schwarzer,* District Judge.
Jeffrey B. Rubin, on brief for petitioner.
Patrick J. Glen, Attorney, Office of Immigration Litigation,
Civil Division, Department of Justice, Gregory G. Katsas, Acting
Assistant Attorney General, Civil Division, and Emily Anne Radford,
Assistant Director, on brief for respondent.
December 1, 2008
*
Of the District of Northern California, sitting by designation.
TORRUELLA, Circuit Judge. Petitioner Luzia Fustaguio do
Nascimento ("Oliveras," her married surname) is a Brazilian citizen
who entered the United States without inspection and was
subsequently placed in deportation proceedings. She did not attend
her deportation hearing, allegedly as a result of her attorney's
ineffective assistance, and was ordered deported in absentia. More
than eleven years after the deportation hearing, Oliveras seeks
judicial review of the denial by the Board of Immigration Appeals
("BIA") of her second motion to reopen her deportation proceedings.
After careful consideration, we deny the petition for judicial
review.
I. Background
The facts are essentially undisputed.
Oliveras is a Brazilian citizen who entered the United
States without inspection by crossing the Mexican border in
November 1994. On March 25, 1996, the Immigration and
Naturalization Service or "INS" (the predecessor entity to the
United States Citizenship and Immigration Services, or "USCIS")
arrested Oliveras during a raid at her place of work and placed her
in deportation proceedings. On that day Oliveras was personally
served with an Order to Show Cause,1 which posited that Oliveras
1
Prior to April 1, 1997, deportation proceedings commenced with
the service of an "Order to Show Cause." Subsequent to that date
the "Order to Show Cause" was replaced by the "Notice to Appear."
See Peralta v. Gonzáles, 441 F.3d 23, 26 n.4 (1st Cir. 2006).
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was removable. The Order highlighted the importance of promptly
notifying the INS about any change of address. The Order was
served in English, a language Oliveras did not understand.
Shortly after her arrest, Oliveras hired attorney David
Luff to represent her in her immigration proceedings. She paid him
approximately $800 in legal fees. When Oliveras moved to a new
address she notified Attorney Luff, who indicated that he would
file the appropriate change of address forms with the INS. He
never did.
Shortly thereafter, the INS mailed two Notices of Hearing
via certified mail to Oliveras' old address. Both were returned by
the U.S. Postal Service as "attempted, not known."2 She never
learned of her hearing date and consequently did not attend.
Oliveras' hearing was held on March 6, 1997. Due to her absence,
the immigration judge ("IJ") entered an in absentia deportation
order against Oliveras on March 7, 1997. Notice of the deportation
order was sent via certified mail to Oliveras' old address. This
time, the mailed notice was not returned. However, Oliveras states
that she never received it. She did not appeal the order.
Attorney Luff never contacted Oliveras regarding the
deportation order or her immigration case. After some period of
time, Oliveras contacted an individual named Lee Gillitlie, who
2
Oliveras admits that service of notice was proper under the
applicable immigration regulation. See 8 C.F.R. § 1003.13.
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knew Attorney Luff, and asked him to make some inquiries regarding
her immigration case. Gillitlie learned that Oliveras had been
ordered deported in absentia and that Attorney Luff had taken no
action regarding her case.3 Oliveras contends that Gillitlie never
shared this information with her.
On July 28, 1997, Oliveras married an American citizen to
whom she remains married to this day. On April 17, 2001, Oliveras'
husband filed a petition to adjust Oliveras' immigration status.
As a part of the status adjustment process, on October 11, 2001,
Oliveras attended an interview at which she was told that, although
she was prima facie eligible for adjustment of status, her petition
could not be granted because an order of deportation had been
entered against her.
Thereafter, Oliveras hired a second attorney who, on
November 4, 2002, filed a motion to reopen Oliveras' immigration
proceedings on grounds that she had been denied effective
assistance of counsel by Attorney Luff. The Immigration Judge
("IJ") denied this motion on December 20, 2002, finding that it was
time-barred. Oliveras appealed this denial to the BIA, who on
February 5, 2004, affirmed the IJ's order. Specifically, the BIA
found that Oliveras had failed to satisfy the requirements for the
3
Attorney Luff later had his bar certification temporarily
suspended on two different occasions -- in 1999 and 2001 -- due to
his failure to provide adequate legal services in the immigration
cases of a number of clients.
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establishment of an ineffective assistance of counsel claim under
BIA precedents in In re Assaad, 23 I. & N. Dec. 553 (BIA 2003) and
Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Oliveras did not
seek judicial review.
Three years later, on March 30, 2007, Oliveras' fourth
lawyer filed a second motion to reopen Oliveras' immigration
proceedings directly with the BIA. In that petition, Oliveras
alleged that she had fixed the shortcomings of her ineffective
assistance claim by fulfilling all of the Lozada requirements.4
The BIA nonetheless denied this motion on September 27, 2007,
finding that it was both time and number-barred. The BIA also held
that equitable tolling did not apply to Oliveras' second petition
because Oliveras had failed to exercise due diligence. Oliveras
now seeks judicial review.
II. Discussion
A. Standard of Review
Motions to reopen removal proceedings are disfavored as
contrary to the "compelling public interests in finality and the
expeditious processing of proceedings." Guerrero-Santana v.
4
To assert a claim of ineffective assistance of counsel an alien
must (1) submit an affidavit detailing the agreement entered into
counsel with respect to the actions to be taken; (2) inform counsel
of the allegations of ineffective assistance and give him the
opportunity to respond; and (3) file a complaint with the
appropriate disciplinary authorities, or adequately explain why no
filing was made. See Assaad, 23 I. & N. Dec. at 556 (citing
Lozada, 19 I. & N. Dec. at 639-40).
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Gonzáles, 499 F.3d 90, 92 (1st Cir. 2007) (quoting Raza v.
Gonzáles, 484 F.3d 125, 127 (1st Cir. 2007)). Consistent with this
policy, we review the BIA's denial of a motion to reopen under a
deferential abuse of discretion standard. Kechichian v. Mukasey,
535 F.3d 15, 22 (1st Cir. 2008). Accordingly, we will uphold the
denial of a motion to reopen unless we conclude that the BIA either
committed a material error of law or exercised its authority in an
arbitrary, capricious or irrational manner. Id. In carrying out
this inquiry, we review the BIA's findings of law de novo, granting
due deference to the BIA's reasonable interpretation of the
statutes and regulations within its purview. See Lin v. Mukasey,
521 F.3d 22, 26 (1st Cir. 2008); Rotinsulu v. Mukasey, 515 F.3d 68,
72 (1st Cir. 2008).
B. Motion to Reopen
In general, the right of an alien in removal proceedings
to file a motion to reopen is limited both numerically and
temporally. Guerrero-Santana, 499 F.3d at 93. Thus, an alien may
ordinarily file only one motion to reopen a removal proceeding and
that motion must be filed within ninety days of the issuance of the
final administrative decision, in this case, the final deportation
order. Id.; see also 8 C.F.R. § 1003.23(b)(1). Because the
present petition involves Oliveras' second motion to reopen, which
was filed more than ten years after the issuance of the final
deportation order against her, Oliveras relies on statutory
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exceptions to the filing deadline, and alternatively, on due
process and equitable tolling arguments to support her contention
that the BIA abused its discretion in denying her motion. We are
not persuaded.
1. Exceptional Circumstances
Oliveras argues that the time and numerical limitations
provisions applicable to her case are those provided by 8 C.F.R.
§ 1003.23(b)(4)(iii)(A), which govern orders entered in absentia,
rather than the general provisions at 8 C.F.R. § 1003.23(b)(1).
However, for the reasons described herein, even if applicable, this
provision would not sufficiently extend the filing period as to
make timely the motion to reopen at issue in this appeal.
Despite the general rule, the regulations contain, among
other exceptions, an exception to the ninety day filing deadline
for orders entered in absentia. 8 C.F.R. at § 1003.23(b)(4). That
exception provides that if the order of deportation was entered in
absentia and the alien shows that the failure to appear was due to
"exceptional circumstances beyond the control of the alien," she
may file her motion to reopen within an extended 180-day period
from the date of issuance of the order. Id. at
§ 1003.23(b)(4)(iii)(A)(1); see also Guerrero-Santana, 499 F.3d at
93. Moreover, there is no numerical limit on the number of motions
to reopen an alien may file pursuant to this provision. See 8
C.F.R. § 1003.23(b)(4)(iii)(D). Oliveras relies on these
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provisions to argue that the ineffective assistance of her first
attorney, in failing to change her address on file with the INS or
notify her of the date of her deportation hearing, constitutes
"exceptional circumstances" that justified an extension of the time
available to her to move to reopen her immigration proceedings.
This court has held that ineffective assistance of
counsel may qualify as an "exceptional circumstance" for the
purpose of applying section 1003.23(b)(4)(iii)(A). See Beltre-
Veloz v. Mukasey, 533 F.3d 7, 10 (1st Cir. 2008); Saakian v. INS,
252 F.3d 21, 25 (1st Cir. 2001). We will assume, without deciding,
that Attorney Luff's conduct constituted assistance sufficiently
ineffective to qualify as an exceptional circumstance. However,
even if Oliveras showed exceptional circumstances, the regulation
only allows 180-days from issuance of the in absentia deportation
order to file a motion to reopen the proceedings. Thus, even
affording Oliveras the benefit of the extended 180-day filing
period for motions to reopen issued in absentia, Oliveras' second
motion to reopen, which is the one at issue in this appeal, while
not number-barred, would nevertheless still be time-barred. This
motion was filed on March 30, 2007, ten years after Oliveras was
ordered deported in absentia -- well past the conclusion of section
1003.23(b)(4)(iii)(A)'s extended 180-day limitations period.
Therefore, even if Oliveras was correct that section
1003.23(b)(4)(iii)(A) governs her case, the BIA was nevertheless
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well within its discretion in denying Oliveras' clearly untimely
motion.
2. Due Process Violation
Oliveras alternatively argues that her due process right
to present her claim on the merits was violated by the ineffective
assistance of her first attorney. While aliens in a deportation
proceeding do not have a constitutional right to counsel,5 they are
entitled to due process in such a proceeding. See Saakian, 252
F.3d at 24. "Ineffective assistance of counsel in a deportation
proceeding is a denial of due process under the Fifth Amendment if
the proceeding was so fundamentally unfair that the alien was
prevented from reasonably presenting his case." Rodríguez-Lariz v.
INS, 282 F.3d 1218, 1226 (9th Cir. 2002) (internal quotation mark
omitted); accord Guerrero-Santana, 499 F.3d at 93 (holding that
"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")(citing Lozada
5
The U.S. Attorney General has recently issued orders directing
the BIA to refer three cases to him for review of several issues,
inter alia: (1) whether there is a "constitutional right to
effective assistance of counsel" in immigration proceedings and (2)
whether, regardless of whether such a right exists, the Attorney
General may grant a remedy "in response to assertions by an alien
that his or her counsel's performance was deficient." See Matter
of J-E-C-M-, A.G. Order No. 2990-2008 (Aug. 7, 2008); Matter of
Bangaly, A.G. Order No. 2991-2008 (Aug. 7, 2008); Matter of
Compean, A.G. Order No. 2992-2008 (Aug. 7, 2008). No decision by
the Attorney General has been issued on this matter as of the date
of publication of this opinion.
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v. INS, 857 F.2d 10, 13 (1st Cir. 1988)). Oliveras asserts that
she has met this standard because Attorney Luff's actions kept her
from presenting her case against deportation before an immigration
judge. We disagree.
Oliveras' due process argument is premised on the notion
that her lawyer's ineffectiveness was the cause of her failure to
file a timely motion to reopen her deportation proceedings and
rescind the deportation order. Throughout her appellate brief,
Oliveras attempts to trace this alleged causal link between her
first attorney's ineffective assistance and the untimeliness of her
subsequent motions to reopen. However, she has been unable to
establish that such a link exists.
Oliveras now challenges the denial of her motion to
reopen. However, any ineffective assistance by Attorney Luff would
only have caused Oliveras to not appear before the IJ on the date
of her scheduled removal hearing in March 1997. As a result, she
was ordered deported in absentia. Nevertheless, five years elapsed
from the time of entry of Oliveras' deportation order to the filing
of her first motion to reopen in November 2002. Given that
Oliveras was not in contact with Attorney Luff during this period
but knew that her immigration status was uncertain, this long delay
cannot be attributed entirely to him. Rather, even if the delay in
Oliveras' discovery of the in absentia deportation order can be
attributed to the ineffective assistance of Attorney Luff, her
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failure to promptly move to reopen upon learning of the entry of
the order certainly cannot be attributed to him. The latest
possible date on which Oliveras could have learned about her in
absentia deportation order was the October 11, 2001 adjustment of
status interview. At this time Oliveras was represented, not by
Attorney Luff, but by a different attorney, against whom no
ineffective assistance claim has been made. Nevertheless, she
waited another full year before filing her first motion to reopen.
Moreover, between the BIA's affirmance of the denial of Oliveras'
first motion to reopen on February 5, 2004 to the filing of her
second such motion in March 2007, three additional years passed.
Oliveras was, again, not in contact with Attorney Luff during this
period, and thus, cannot attribute the extreme tardiness of her
second filing to his ineffective assistance.
Though Attorney Luff may have caused Oliveras to miss her
initial appearance before the IJ, Attorney Luff did not cause
Oliveras' delay in filing her first motion to reopen after she
learned of the deportation order entered against her, nor did he
cause her delay in filing the second motion to reopen, nor was he
responsible for the faulty pleading in the first motion to reopen
that failed to meet the Lozada requirements for stating an
ineffective assistance of counsel claim.6 Simply stated, the fact
6
Oliveras does not assert an ineffective assistance claim against
the attorney who handled that filing.
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that Oliveras ultimately did not get the chance to go before an IJ
cannot be attributed solely to any ineffective assistance by
Attorney Luff. Given that a mechanism existed under 8 C.F.R.
§ 1003.23(b)(4)(iii)(A) to cure the harm caused by Attorney Luff's
incompetence and secure another opportunity to state her case
against deportation, which Oliveras failed to take advantage of, it
cannot be said that Oliveras' immigration proceedings were rendered
"fundamentally unfair" on account of the ineffective assistance she
received. Hence, Oliveras' due process rights were not violated,
and the BIA acted within its discretion in declining to grant her
relief. See Guerrero-Santana, 499 F.3d at 93 (holding that the
merits of petitioner's ineffective assistance claim were immaterial
as counsel's shortcomings could not account for petitioner's
failure to timely file his second motion to reopen).
3. Equitable Tolling
Finally, Oliveras asserts that the ineffective legal
representation she received from her first attorney entitled her to
equitable tolling of the filing period, so as to excuse the late
filing of her second motion to reopen. The equitable tolling
doctrine, applicable to all federal statutes, "provides that in
exceptional circumstances, a statute of limitations 'may be
extended for equitable reasons not acknowledged in the statute
creating the limitations period.'" Neverson v. Farquharson, 366
F.3d 32, 40 (1st Cir. 2004)(quoting David v. Hall, 318 F.3d 343,
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345-46 (1st Cir. 2003)). This Circuit has yet to address the
question of "whether the BIA has either the authority or the
obligation" to apply equitable tolling in the immigration context.
Guerrero-Santana, 499 F.3d at 93. What is well-established,
however, is that the doctrine of equitable tolling should be
"sparingly invoked." Jobe v. INS, 238 F.3d 96, 100 (1st Cir. 2001)
(en banc). Equitable tolling is generally unavailable to excuse a
party who has failed to exercise due diligence. See Beltre-Veloz,
533 F.3d at 11 (holding that alien's failure to exercise due
diligence in not inquiring into immigration status for eight years
despite knowing that removal proceedings had commenced precluded
equitable tolling of deadline for filing motion to reopen); Jobe,
238 F.3d at 101 (stating that petitioner was insufficiently
diligent in pursuing his asylum application and therefore was not
entitled to equitable tolling, where he knew that IJ had ruled on
his application but failed to take action to protect his rights for
over six months). Moreover, where the BIA's decision that
equitable tolling is unavailable was based "on a factual
determination that [the petitioner] had not exercised due
diligence," we do not have jurisdiction to review the BIA's
decision. Boakai v. Gonzáles, 447 F.3d 1, 4 (1st Cir. 2006).
As discussed above, Oliveras has failed to account for
either the five-year delay in filing her first motion to reopen or
the subsequent three-year lapse before the filing of her second
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motion. At the very latest, on October 11, 2001, Oliveras knew
that she had been ordered deported in absentia. At that point,
Oliveras should have taken a proactive approach to resolving her
immigration troubles. However, she waited another year -- until
November 20, 2002 -- to file her first motion to reopen with the
immigration judge, the denial of which was upheld by the BIA in
February 2004. At that point, rather than seeking judicial review,
she let another three years pass, until March 2007, before filing
the subsequent motion to reopen that is at the heart of this
appeal. Given Oliveras' casual approach to her immigration
proceedings, it cannot be said that the circumstances that caused
the late filing of her second motion to reopen were "out of [her]
hands." See Jobe, 238 F.3d at 100 (quoting Salois v. Dime Savings
Bank, 128 F.3d 20, 25 (1st Cir. 1997) for "principle [] that
equitable tolling 'is appropriate only when the circumstances that
cause a [party] to miss a filing deadline are out of his hands.'"
(alteration in original)).
For the foregoing reasons, we hold that the BIA made a
reasonable factual determination that Oliveras failed to
demonstrate sufficient diligence to justify equitably tolling the
motions deadline. We thus lack authority to review its denial of
relief.
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III. Conclusion
For the foregoing reasons, we deny this petition for
judicial review.
DENIED.
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