United States Court of Appeals
For the First Circuit
No. 08-2277
ARIEL MICHAEL PUNZALAN,
Petitioner,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Lisa D. Dubowski and ASK Law Group on brief for petitioner.
Tim Ramnitz, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, Michael F. Hertz, Acting
Assistant Attorney General, Civil Division, and Shelley R. Goad,
Senior Litigation Counsel, on brief for respondent.
August 5, 2009
*
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.
LYNCH, Chief Judge. Petitioner Ariel Punzalan, a native
and citizen of the Philippines, seeks review of a final order of
removal issued by the Board of Immigration Appeals ("BIA") on
September 5, 2008 denying petitioner's second motion to reopen.
Petitioner argues that the time and number limitations on filing
his second motion should be equitably tolled and proceedings
reopened due to the alleged ineffective assistance of his prior
counsel on the first motion to reopen. The BIA rejected the second
motion to reopen for several reasons, including that petitioner had
failed to demonstrate that his former counsel acted deficiently.
We deny the petition.
I.
Petitioner entered the United States on October 5, 2001
for a period not to exceed April 4, 2002. He did not depart. The
Department of Homeland Security ("DHS") then commenced removal
proceedings by filing a Notice to Appear on July 29, 2005. On
September 16, 2005, petitioner appeared with counsel before an
immigration judge ("IJ") and conceded removability. He stated that
he would seek asylum or, in the alternative, voluntary departure.
On October 25, 2005, petitioner filed a motion seeking a change of
venue and stated that the only request he sought was voluntary
departure; he withdrew his request for asylum. Two months later,
on December 29, 2005, the petitioner married a U.S. citizen.
-2-
On January 9, 2006, an IJ granted the petitioner
voluntary departure up to March 10, 2006. On January 25,
petitioner's new wife filed an I-130 immediate relative visa
petition with DHS on his behalf. On February 2, 2006, Venu Alagh
of Korenberg & Abramowitz in Sherman Oaks, California filed an
appearance as attorney for petitioner. Petitioner faxed Korenberg
& Abramowitz on March 2, 2006 relevant materials to prepare an
application for a motion to reopen seeking an adjustment of status
based on the pending I-130 petition. On March 17, 2006,
petitioner's motion to reopen was filed. This motion was filed
seven days past the voluntary departure deadline.
On March 29, 2006, the IJ ultimately denied petitioner's
motion to reopen, citing the fact that he had failed to depart by
the March 10 voluntary departure deadline and was therefore
ineligible for a status adjustment. See 8 U.S.C. § 1229c(d)(1).
Six weeks later, on May 9, 2006, new counsel for
petitioner filed a second motion to reopen, alleging that Korenberg
& Abramowitz had provided deficient performance because the first
motion to reopen should have been filed prior to the March 10, 2006
deadline. Punzalan was still represented by the same firm for the
second motion. A different attorney within Korenberg & Abramowitz,
Dan Korenberg, filed the second motion, accusing his own firm of
ineffective assistance of counsel. He argued that Korenberg &
Abramowitz had provided ineffective assistance on the first motion
-3-
because the first motion to reopen should have been filed before
the expiration of the voluntary departure period. Petitioner
claimed that although the firm had mailed the motion on March 6, it
was not filed using the proper method and therefore did not arrive
in a timely manner. Petitioner also claimed to have fulfilled the
Lozada requirements1 for showing ineffective assistance of counsel
by filing a complaint with the Disciplinary Board of the Supreme
Court of California against Korenberg & Abramowitz. The firm
purportedly received notice of the allegations by serving itself
with the bar complaint, with Dan Korenberg accepting service as
the firm's representative.
The IJ denied the second motion to reopen on June 1, 2006
by simply saying she adopted the government's reasons for denying
the motion without further analysis or specification of the
reasons. Petitioner appealed to the BIA, arguing, inter alia, that
this was an insufficient explanation.
1
Under In re Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988),
an alien seeking to reopen removal proceedings based on a claim of
ineffective assistance of counsel must include with the motion 1)
an affidavit explaining the petitioner's agreement with counsel
regarding legal representation; 2) evidence that counsel has been
informed of the allegations of ineffective assistance and has had
an opportunity to respond; and 3) if it is asserted that counsel's
handling of the case involved a violation of ethical or legal
responsibilities, a complaint against the attorney filed with
disciplinary authorities or, in the alternative, an explanation for
why such a complaint has not been filed. Id.; Dawoud v. Holder,
561 F.3d 31, 34 n.3 (1st Cir. 2009).
-4-
On August 21, 2006, the BIA remanded to the IJ to fully
explain her reasons for the denial, rather than stating solely that
she adopted DHS's arguments. See In re M-P-, 20 I. & N. Dec. 786
(BIA 1994). The IJ issued a new decision on September 5, 2006
discussing the reasons for the denial of the second motion to
reopen. The IJ stated that Punzalan had filed the motion to reopen
after the voluntary departure deadline, that he had failed to
comply with the Lozada requirements, and that he was not diligent
in pursuing his first motion to reopen.
Petitioner appealed that decision to the BIA. He argued
first that the IJ had inadequately explained the basis for the
denial, and second that the time and number limitations on the
motion to reopen should have been tolled due to the supposed
ineffective assistance of counsel on the first motion to reopen.
The BIA dismissed petitioner's appeal on September 5,
2008, for the BIA stated that it was "not persuaded that
respondent's prior counsel acted ineffectively." The BIA found
that the petitioner had failed to set forth sufficient detail to
support a claim of ineffectiveness. The BIA noted that the
evidence submitted "neither describes the terms according to which
the work was to be performed nor how the former counsel's
performance of the work was ineffective."
The BIA also rejected the ineffective assistance claim on
the grounds that the record showed that the petitioner did not fax
-5-
the Form I-485, the application for adjustment of status, to his
first counsel until March 2, 2006, just eight days before the
voluntary departure deadline, and that "it is clear to us that the
respondent's former counsel could only act as quickly as permitted
by the respondent's piecemeal manner of supplying him the requisite
evidentiary documents."
Because the BIA resolved the case by rejecting Punzalan's
ineffectiveness claim, it did not reach the equitable tolling
argument.2
II.
"Motions to reopen removal proceedings are disfavored
because . . . such motions are at odds with 'the compelling public
interests in finality and the expeditious processing of
proceedings.'" Beltre-Veloz v. Mukasey, 533 F.3d 7, 9 (1st Cir.
2008) (quoting Guerrero-Santana v. Gonzales, 499 F.3d 90, 92 (1st
Cir. 2007)). We therefore review the BIA's decision for abuse of
2
The BIA also determined that even assuming the first
motion to reopen had been filed prior to the expiration of the
voluntary departure period on March 10, there was "no basis upon
which to presume the motion would have been adjudicated" before the
voluntary departure period deadline. Citing Chedad v. Gonzales,
497 F.3d 57, 64 (1st Cir. 2007), overruled in Dada v. Mukasey, 128
S. Ct. 2307 (2008), the BIA emphasized that the mere filing of a
motion to reopen prior to the expiration of the voluntary departure
period does not automatically toll the running of the voluntary
departure period. In Dada, the Supreme Court held that the filing
of a motion to reopen does not toll the voluntary departure period,
but that "the alien must be permitted to withdraw, unilaterally, a
voluntary departure request before expiration of the departure
period, without regard to the underlying merits of the motion to
reopen." 128 S. Ct. at 2319.
-6-
discretion.3 Arias-Valencia v. Mukasey, 529 F.3d 428, 430 (1st
Cir. 2008). "Our review is highly deferential, focusing on the
rationality of the decision to deny . . . reopening, not on the
merits per se, of the underlying claim." Abdullah v. Gonzales, 461
F.3d 92, 99 (1st Cir. 2006). We will set aside the BIA's 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).
Petitioner first argues that the time and number limits
on his second motion to reopen should be tolled and the proceedings
reopened because of the ineffective assistance of his counsel,
Korenberg & Abramowitz, on the first motion to reopen. Ordinarily
a petitioner may file only one motion to reopen, which must be
filed within ninety days of the BIA's final decision. 8 U.S.C.
§ 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). We have reserved the
question of whether "the statutory provision limiting motions to
reopen is subject to equitable tolling." Da Silva Neves v. Holder,
568 F.3d 41, 42 (1st Cir. 2009). And even if it were available,
"equitable tolling is a 'sparingly' invoked doctrine." Jobe v.
INS, 238 F.3d 96, 100 (1st Cir. 2001) (en banc) (quoting Irwin v.
Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)). Moreover, we
3
The parties have not argued that this court lacks
jurisdiction to consider the petition, cf. Fustaguio Do Nascimento
v. Mukasey, 549 F.3d 12, 18-19 (1st Cir. 2008), and we assume
arguendo that we do have jurisdiction.
-7-
would only reach this issue if we first held that the BIA had
abused its discretion in finding that petitioner failed to meet his
burden under Lozada of providing sufficient detail of counsel's
ineffectiveness. See Chedid v. Holder, No. 08-1552, ___ F.3d ___,
2009 WL 2100615, at *4 (1st Cir. July 17, 2009). The BIA did not
abuse its discretion.
"The BIA acts within its discretion in denying motions to
reopen that fail to meet the Lozada requirements as long as it does
so in a non-arbitrary manner." Asaba v. Ashcroft, 377 F.3d 9, 11
(1st Cir. 2004). The Lozada framework "is designed to screen out
frivolous, stale, and collusive claims." Beltre-Veloz, 533 F.3d at
10. A petitioner's affidavit that "makes no mention of the nature,
scope, or substance of the petitioner's arrangement with [his
attorney], [and fails to] indicate what communications the
petitioner had with the attorney" contains a "fatal flaw" under the
Lozada requirements. Id.
The BIA's determination that the petitioner failed to
meet the Lozada requirements, which rested on several grounds, was
not arbitrary or capricious. Although petitioner did submit an
affidavit, the BIA did not abuse its discretion in finding that
"the evidence submitted for the purpose of establishing the claimed
ineffectiveness neither describes the terms according to which the
work was to be performed [n]or how the former counsel's performance
of the work was ineffective." The affidavit contained a spare
-8-
description of the case. It contained no record of specific
contacts with attorney Venu Alagh or anyone else at Korenberg &
Abramowitz. It only stated that Punzalan had "repeatedly contacted
his counsel" and that the motion was not timely filed because of
counsel's alleged failure to follow the proper filing procedure.
This failure to file before the voluntary departure deadline was
the only allusion to any error made by Korenberg & Abramowitz.
The BIA also found that the petitioner was to blame for
the failure to make a more timely filing. The record shows that
Punzalan sent his materials to Korenberg & Abramowitz on March 2,
eight days before the deadline, but the affidavit provides no
description of the contacts with Alagh between the date of
petitioner's submission and Alagh's filing of the motion to reopen.
The affidavit neither explains the nature of the filing error nor
why it prevented the motion from being filed until March 17, 2007.
Further, the BIA rightfully was skeptical as to whether
the petitioner "registered a meaningful complaint about his former
counsel" in compliance with Lozada. Beltre-Veloz, 533 F.3d at 11.
To put it mildly, the law firm Korenberg & Abramowitz had divided
and conflicting interests.
Petitioner further argues that the BIA erred by relying
on Chedad, because that decision was later withdrawn after the
-9-
Supreme Court decided Dada v. Mukasey.4 We need not address the
argument, because the BIA independently rejected the
ineffectiveness claim in determining that petitioner failed to
comply with the Lozada requirements.
Petitioner's final claim of error is easily rejected. He
argues that because the IJ adopted the arguments and reasoning of
DHS in her decision, she failed to fully explain her reasons under
In re M-P-, and the BIA was wrong to conclude otherwise. The
factual basis for this claim is wrong. The IJ issued a three-page
decision that set forth her reasoning in sufficient detail to allow
the BIA to meaningfully exercise its reviewing responsibility. See
In re M-P-, 20 I. & N. Dec. at 787-88. Petitioner's argument thus
lacks merit.
The petition is denied. Copies of this opinion shall be
sent by the Clerk to the bar disciplinary authorities of California
for their review concerning attorney Dan Korenberg and the firm of
4
After the Dada decision (although on the basis of a
proposed rule that preceded Dada), the Executive Office of
Immigration Review ("EOIR") issued a rule stating that the filing
of any motion for reconsideration or reopening automatically
terminates voluntary departure. See Voluntary Departure: Effect of
a Motion To Reopen or Reconsider or a Petition for Review, 73
Fed.Reg. 76,927, 76,937 (Dec. 18, 2008) (codified at 8 C.F.R.
§ 1240.26(e)(1)). The EOIR expressly stated that this new rule is
to be applied prospectively only, and so it does not apply to the
instant petition. Id. at 76,936. To the extent petitioner may be
making a claim that Dada applies retroactively to this case, the
argument is waived and we will not address it.
-10-
Korenberg & Abramowitz. See A. Greenbaum, Judicial Reporting of
Lawyer Misconduct, 77 UMKC L. Rev. 537, 565 (2009).
So ordered.
-11-