United States Court of Appeals
For the First Circuit
No. 08-1262
NICOLAS HANNA DAWOUD,
Petitioner,
v.
ERIC H. HOLDER, JR.*, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Stahl and Howard,
Circuit Judges.
Saher J. Macarius, Audrey Botros and Law Offices of Saher J.
Macarius, on brief for petitioner.
Gregory G. Katsas, Assistant Attorney General, Civil Division,
Linda S. Wernery, Assistant Director and Gregory M. Kelch,
Attorney, United States Department of Justice, on brief for
respondent.
March 26, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is
substituted for former Attorney General Michael B. Mukasey as the
respondent herein.
HOWARD, Circuit Judge. Nicholas Hanna Dawoud (Dawoud),
a native and citizen of Lebanon, petitions for review of a decision
of the Board of Immigration Appeals (BIA). The BIA -- at the
conclusion of languid proceedings notable for Dawoud’s dilatory
pursuit of his rights -- denied Dawoud any relief on his motion to
reopen based on ineffective assistance of counsel, and his request
for a remand for an adjustment of status based on his marriage to
a U.S. Citizen. Although Dawoud's case has not been free from
irregularity, after careful consideration, we deny the petition.
Dawoud entered this country on April 17, 2002 as a
non-immigrant admitted for business purposes, and was entitled to
remain in the United States no later than June 16, 2002. Dawoud
chose to remain past this date, and in due course, on January 9,
2003, the Department of Homeland Security (DHS) served him with a
notice to appear. On April 9, 2003, Dawoud, appearing pro se,
successfully sought a continuance of removal proceedings pending
against him.
On June 2, 2003, Dawoud married Clotilde Sousa, a U.S.
citizen. On June 26, 2003, pursuant to section 245(e) of the
Immigration and Nationality Act, 8 U.S.C. § 1255(e), Ms. Sousa
filed a Petition for Alien Relative (I-130 Petition) on behalf of
Dawoud. At Dawoud's next hearing on November 12, 2003, again
appearing pro se, Dawoud explained that he had recently married a
U.S. citizen and requested a further continuance of all removal
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proceedings while his I-130 Petition was pending. Because he had
"serious concerns as to the legitimacy and bona fides of the
Respondent's marriage," the Immigration Judge ("IJ") instructed
Dawoud to produce documentation in support of his wife's I-130
Petition and continued all proceedings until March 24, 2004 to
provide Dawoud the opportunity to produce the relevant documents,
but warned that no further continuances would be forthcoming.1
In light of this turn of events, Dawoud retained the
services of an attorney, Joseph Grimaldi, who agreed to represent
Dawoud in his removal proceedings in exchange for two thousand
dollars. Dawoud asserts that, at his first meeting with Grimaldi,
Dawoud explained that the Immigration Judge requested documentation
supporting his I-130 Petition, and Grimaldi led Dawoud to believe
that he would gather the necessary documentation.
1
Despite the lack of any objection by Dawoud, there is reason to
think that the IJ's concerns were misplaced and that his ultimate
decision to deny the continuance may have been misguided. Although
the regulations could be clearer, it may well be that only the
United States Citizenship and Immigration Services (USCIS)agency
has the authority to inquire into the bona fide nature of a
petitioner's marriage. See In Re: Gregorie Joseph, A76 967 987,
2003 WL 23216939 (BIA Sept. 30, 2003) (unpublished). Moreover,
"[i]t is a matter of long-standing and express BIA policy that, as
a general matter, an alien is entitled to a continuance of removal
proceedings against him while a 'prima facie approvable' I-130
immigrant visa petition is pending in front of the District
Director." Sheng Gao Ni v. Board of Immigration Appeals, 520 F.3d
125, 131 n.4 (2d Cir. 2008) (quoting Pedreros v. Keisler, 503 F.3d
162, 165 (2d Cir. 2007)) (alteration and quotation marks in
original); see also Khan v. Att'y. Gen., 448 F.3d 226, 234 n.7 (3d
Cir. 2006) (citing Matter of Garcia, 16 I. & N. Dec. 653, 657-57
(BIA 1978) abrogated on other grounds, In Re Arthur, 20 I. & N.
Dec. 475 (BIA 1992)).
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At the March 24 hearing, however, despite appearing to
represent Dawoud, Grimaldi did not bring the requested
documentation. Instead, Grimaldi moved for a continuance pending
approval of the I-130 Petition, or in the alternative, voluntary
departure to Lebanon. The IJ declined to continue the proceedings
for any further length of time and ordered Dawoud removed to
Lebanon. Dawoud, still acting through Grimaldi, filed a motion to
reconsider and an emergency motion for a stay of removal on May 6,
2004.2 The requested emergency stay of removal was granted on May
11, 2004, but on November 9, 2004 the IJ denied the motion to
reconsider because, inter alia, (1) Dawoud failed to provide the
documentation the IJ had previously requested, (2) the motion
failed to raise any error of law or fact in the Court's prior
decision, and (3) the motion was time-barred. 8 C.F.R. §
1003.23(b)(1). The IJ then vacated the stay and ordered Dawoud
removed to Lebanon. On September 23, 2005, DHS approved the I-130
Petition Ms. Sousa filed on behalf of her husband, Dawoud.
In a later filed affidavit, Dawoud claimed that, after
the motion to reconsider was denied, his attorney strongly
discouraged him from filing an appeal of the IJ's March 24
2
The record is not entirely clear as to the filing date of the
motion to reconsider. The motion to reconsider contains a
certificate of service indicating that it was filed on April 23,
2004, the last possible timely filing date. This certificate may
be indicative of timely filing. Nevertheless, all of the parties
below appear to concede that the motion was actually filed on May
6, 2004, which we therefore accept as the date of filing.
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decision, and failed to inform him of his ability to file a motion
to reopen (or another motion to reconsider) based on ineffective
assistance of counsel. On August 22, 2006, almost a year after the
I-130 Petition was approved, with the aid of his present counsel
Dawoud filed a motion to reopen based on ineffective assistance of
counsel. Although Dawoud's motion to reopen included documents to
support the allegation of ineffective assistance of counsel, the
motion did not explain why he waited to file his motion to reopen
until nearly eleven months after the approval of his I-130 Petition
and over two years from the date of the IJ's initial decision to
deny him further continuances.3
The IJ denied Dawoud's motion to reopen, after noting
that the motion was time barred and did not fall within any
exceptions to the ninety-day period for filing such motions.4 The
3
In order to show 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. In re Assaad, 23 I. & N. Dec. 553 (BIA 2003);
Matter of Lozada, 19 I. & N. Dec. 637 (BIA) aff'd sub nom Lozada v.
INS, 857 F.2d 10 (1st Cir. 1988); see also Fustaguido Do Nascimento
v. Mukasey, 549 F.3d 12, 15 n.4 (1st Cir. 2008). Dawoud submitted
a complaint filed against Grimaldi with the Office of Bar Counsel
in Boston, a letter advising Grimaldi that a complaint was filed
against him, an affidavit by Dawoud, and a copy of the now-approved
I-130.
4
The regulations provide three exceptions to the ninety-day
period in which to file a motion to reopen: (1) the petitioner is
applying for asylum or withholding of removal and the subsequent
motion to reopen is based on changed country conditions in the
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IJ also considered the potential applicability of the doctrine of
equitable tolling; in doing so, the IJ observed that Dawoud was not
informed about time limitations for filing a motion to reopen based
on ineffective assistance of counsel, and that DHS would "not be
significantly prejudiced" if the motion to reopen were allowed.
Nevertheless, the IJ concluded that even if equitable tolling were
available in this circuit, Dawoud's delay of more than two years
after an order of removal was entered against him, and nearly a
year after DHS approved his I-130 Petition, was not consistent with
the diligent pursuit of one's rights required for equitable tolling
to apply.
Dawoud appealed the IJ's decision to the BIA, adding, in
addition to his motion to reopen, a motion to remand based on the
alleged new evidence of his approved I-130 Petition. He also
attached a Form I-485 application to adjust his status based on the
previously approved I-130 Petition. The BIA did not discuss, or
provide any indication that it considered, its policy concerning
motions to reopen for the purpose of permitting USCIS to adjudicate
adjustment of status applications,5 but it nevertheless affirmed
country of nationality or the country to which removal has been
ordered; (2) the motion to reopen alleges lack of notice and the
order of removal was entered in absentia; or (3) the motion to
reopen is jointly filed. 8 C.F.R. § 1003.23(b)(4).
5
At least one court has noted the "BIA's established policy" that
"discretion should, as a general rule, be favorably exercised where
a prima facie approvable visa petition and adjustment application
have been submitted in the course of a deportation hearing or
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the IJ's denial of Dawoud's motion to reopen on timeliness grounds.
The BIA further upheld the IJ's denial of equitable tolling because
of Dawoud's lack of diligence in pursuing a motion to reopen based
on ineffective assistance of counsel. The BIA therefore did not
consider the merits of Dawoud's ineffective assistance of counsel
claim. In addition, the BIA denied Dawoud's motion to remand for
consideration of his I-485 adjustment of status application because
Dawoud failed to offer any evidence that was not available and
could not have been presented to the IJ during the March 24, 2004
hearing. The BIA further noted that granting Dawoud's motion for
a remand would "undermine the Immigration Judge's decision denying
motion to reopen." Sheng Gao Ni, 520 F.3d at 131 n.4 (quoting In
Re Garcia, 16 I. & N. Dec. at 657 (BIA 1978). We have some doubts
about the continuing validity of Garcia's presumption with respect
to motions to reopen. See In Re Velarde-Pacheco, 23 I. & N. Dec.
253, 2002 WL 393173 (BIA 2002). In any event, it does not appear
that either DHS or the BIA has considered the prudence of granting
Dawoud's motion to reopen on the basis of his now-approved I-130
Petition.
Velarde-Pacheco suggests that the BIA relies on DHS to
determine whether or not to support motions to reopen such as the
one brought by Dawoud. 23 I. & N. Dec. at 256 (citing Memorandum
from INS Office of General Counsel, Memorandum for Regional Counsel
for Distribution to District and Sector Counsel, (July 16, 2001).
DHS will join a motion to reopen for consideration of adjustment of
status if (1) that relief was not available to the alien at the
former hearing, (2) the alien is statutorily eligible for
adjustment, and (3) the alien merits a favorable exercise of
discretion. Id. It is unclear from the record whether the BIA or
DHS has examined Dawoud's motion with an eye toward his
satisfaction of this threshold. Thus, even if Garcia's presumption
does not apply with respect to motions to reopen to permit USCIS
adjudication of adjustment of status applications, a question on
which we take no position, the BIA or DHS nevertheless may have the
authority to undertake such a review.
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[Dawoud's] request for a continuance, and would reward [Dawoud] for
his delay in filing evidence previously requested by the
Immigration Judge." Thus, the BIA concluded that granting a motion
to remand would be "unjust" and therefore denied Dawoud all relief.
This appeal timely followed.
The BIA's denial of a motion to reopen is reviewed for an
abuse of discretion. Tandayu v. Mukasey, 521 F.3d 97, 100 (1st
Cir. 2008); Chen v. Gonzales, 415 F.3d 151, 153 (1st Cir. 2005).
The BIA's decision will be upheld "unless the complaining party can
show that the BIA committed an error of law or exercised its
judgment in an arbitrary, capricious, or irrational way." Tandayu,
521 F.3d at 100 (quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st
Cir. 2007)); see also Chen, 415 F.3d at 153 ("An abuse of
discretion exists where the BIA misinterprets the law, or acts
either arbitrarily or capriciously.") (quoting Toban v. Ashcroft,
385 F.3d 40, 45 (1st Cir. 2004)).
Subject to exceptions not relevant in this case, motions
to reopen removal proceedings are limited in two ways: aliens are
limited to one such motion, and it must be filed within ninety days
of the issuance of the final decision. 8 C.F.R. § 1003.23(b); see
also Fustaguido Do Nascimento, 549 F.3d at 15-16. It is undisputed
that Dawoud filed his motion to reopen more than ninety days after
the IJ's March 24, 2004 decision became final. To avoid the
inevitable finding that his motion to reopen was not timely, Dawoud
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argues that he is entitled to equitable tolling of the ninety-day
period for filing a motion to reopen due to ineffective assistance
of counsel.
Equitable tolling is a sparingly invoked doctrine, Irwin
v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990), used to
excuse a party's failure to take an action in a timely manner,
where such failure was caused by circumstances that are out of his
hands, Salois v. Dime Sav. Bank, 128 F.3d 20, 25 (1st Cir. 1997).
We have not definitively decided "whether the BIA has either the
authority or the obligation" to apply equitable tolling in the
immigration context. Fustaguio Do Nascimento, 549 F.3d at 18
(quoting Guerrero-Santana v. Gonzales, 499 F.3d 90, 93 (1st Cir.
2007)). It is nevertheless clear that even were equitable tolling
available in such cases, we would require that one claiming
equitable tolling show (1) lack of actual notice of a time limit;
(2) 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. Jobe v. INS, 238 F.3d 96, 100 (1st
Cir. 2001) (en banc); see also Chen, 415 F.3d at 154.
In the present case, the BIA concluded that in waiting
over two years from the IJ's initial decision and approximately
eleven months from the date his I-130 Petition was approved, Dawoud
did not exercise diligence in the pursuit of his rights. Moreover,
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even before us, Dawoud has not explained this lengthy delay, or
even identified the circumstances that prompted him eventually to
consult with his present attorney. Given the length of the delay
at issue, and the gaping lacuna in Dawoud's argument, even if
equitable tolling might be available in this circuit, we cannot
conclude that the BIA abused its discretion in denying Dawoud the
benefit of any such tolling.
Dawoud's remaining arguments are also unavailing. Having
concluded that the petitioner is not entitled to equitable tolling
of the limitations period, if any such tolling is in fact
available, we need not reach his argument concerning the bar
against successive motions to reopen. Similarly, we need not
address Dawoud's substantive claim of ineffective assistance of
counsel, as the BIA had no reason to reach the merits of this
claim. See INS v. Ventura, 537 U.S. 12, 14 (2002) (requiring
appellate court to permit BIA to consider merits of an issue before
deciding such claim).
In addition, Dawoud's argument regarding the IJ's alleged
over-extension of his authority in requesting additional documents
in November 2003 and denying further continuances in March 2004
also fails. As we have noted, the IJ's request for documentation
regarding the I-130 Petition, and attendant concerns about the bona
fides of Dawoud's marriage, may have been misplaced. See supra
note 1. Similarly, the IJ's denial of further continuances may not
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have been in harmony with BIA policy. See Sheng Gao Ni, 520 F.3d
at 131 n.4; Khan, 448 F.3d at 234 n.7. Nevertheless, even if the
IJ's decisions exceeded the scope of his authority, since Dawoud
did not appeal decisions, we lack jurisdiction to consider them.
See Tchuinga v. Gonzalez, 454 F.3d 54, 60 (1st Cir. 2006).
Finally, we consider Dawoud's motion to remand. Although
Dawoud argues that he has shown a "prima facie entitlement to
relief," which would ordinarily be relevant in assessing a motion
to remand, Dawoud does not specifically challenge the Board's
denial of the motion. Rather, he continues to press for the same
relief -- adjustment of status -- that was requested in his motion
to remand. The BIA dismissed the motion to remand on two grounds:
(1) granting the motion would reward Dawoud for his failure to file
evidence requested by the IJ, and (2) Dawoud did not cite any
evidence that was previously unavailable to him.
On the one hand, no timely objection was lodged against
the IJ's demand for documentation, and the BIA has expressed a
valid institutional concern that parties who ignore an IJ's
instructions should not be rewarded. On the other hand, we are
uncertain how granting Dawoud relief would reward him for his
failure to provide information that the IJ may not have been
entitled to request. Had Dawoud provided the requested
information, pursuant to long-standing BIA policy, his removal
proceedings would likely have been continued while his I-130
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Petition was pending before the District Director. See, e.g.,
Pedreros, 503 F.3d at 165; Khan, 448 F.3d at 234 n.7; Hassan v.
INS, 110 F.3d 490, 492-93 (7th Cir. 1997). Because the information
was not provided, Dawoud's odyssey through the immigration system
has already grown considerably more difficult, stressful, and
expensive. He has had an order of removal entered against him and
faces substantial impediments in the present proceedings.
As to the BIA's second point, regarding the lack of
previously unavailable evidence, the government contends that
Dawoud fails to address this issue in his brief, and therefore has
waived this argument. We agree. Dawoud's brief neither mentions
the motion to remand nor addresses the BIA's rationale in denying
the motion. In these circumstances, we deem the issue waived. See
Toloza-Jiminez v. Gonzales, 457 F.3d 155, 160 (1st Cir. 2006).
Thus, Dawoud has not demonstrated that the BIA abused its
discretion with respect to the motion to reopen, and he has
effectively waived his challenge to the BIA's denial of the motion
to remand. Dawoud may have had a basis for his claim of
ineffective assistance of counsel, resulting in his facing
considerably more arduous proceedings in his attempts to gain
adjustment of status than many similarly situated petitioners.
When examined in light of the BIA's policy of normally continuing
removal proceedings to permit USCIS to consider an I-130 Petition
and adjustment of status, and sometimes granting motions to reopen
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to allow adjustment of status, Dawoud's case may yet merit the
exercise of discretion on the part of DHS, or discretionary
reopening on the part of the BIA or the IJ. See 8 C.F.R. §§
1003.2(a), 1003.23(b)(1).6 0
That said, our course is clear, and Dawoud's petition for
review is denied.
6
We have no jurisdiction to consider or order such discretionary
relief. See DaCosta v. Gonzales, 449 F.3d 45, 49 (1st Cir. 2006).
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