Murillo-Robles v. Lynch

United States Court of Appeals
For the First Circuit

No. 15-2568

DANIEL EMERSON MURILLO-ROBLES,

Petitioner,

v.

LORETTA E. LYNCH,
ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS

Before

Howard, Chief Judge,
Selya and Kayatta, Circuit Judges.

Carlos E. Estrada, with whom Estrada Law Office was on brief,
for petitioner.
Sabatino F. Leo, Trial Attorney, Office of Immigration
Litigation, United States Department of Justice, with whom
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, United States Department of Justice, and Anthony
P. Nicastro, Assistant Director, Office of Immigration Litigation,
were on brief, for respondent.

October 7, 2016
 SELYA, Circuit Judge. Although the Board of Immigration

Appeals (BIA) has broad discretion in the disposition of motions

to reopen, broad discretion is not the same as unfettered

discretion. This case, which arises out of an in absentia removal

order against a youthful alien who was ill-served by not one but

two lawyers, illustrates that verity. After careful

consideration, we conclude that the BIA abused its discretion when

it found that the circumstances attendant to entry of the removal

order were not exceptional. Accordingly, we grant the petition

for review, reverse the BIA's denial of the motion to reopen, and

remand with instructions to set aside the in absentia removal order

and reopen the petitioner's removal proceedings.

I. BACKGROUND

The petitioner, Daniel Emerson Murillo-Robles, is a

Peruvian national. He became a lawful conditional resident of the

United States in 2001 at age 11. In October of 2003, his mother

and his stepfather (a United States citizen) jointly filed an I-

751 petition with United States Citizenship and Immigration

Services (USCIS), seeking to make the petitioner's residency

unconditional. USCIS denied this petition in November of 2006,

citing the failure on the part of the attorney representing the

family to respond in a timely fashion to its request for additional

information.

- 2 -
 The government proceeded to initiate removal proceedings

against the petitioner in February of 2007. The petitioner

conceded removability and sought review of the denial of the

original I-751 petition. He received a series of continuances,

partly because his mother and stepfather filed a second I-751

petition in 2009. That petition was denied by USCIS after the

attorney who prepared it failed adequately to explain the delay in

filing. The attorney was subsequently disbarred, and the

petitioner's family hired a new attorney in the spring of 2011.

Eventually, a merits hearing was scheduled for April 30,

2012 at 8:00 a.m. That day, the petitioner did not appear at 8:00

a.m. but, rather, arrived at approximately 8:30 a.m., thinking

that his hearing was set for 9:00 a.m. This interval, though

brief, proved consequential: at 8:19 a.m., the immigration judge

(IJ) entered an order of removal in absentia. When the IJ entered

the order, he told the petitioner's lawyer that if she moved to

reopen the case when the petitioner arrived, he would consider the

motion. The petitioner appeared minutes later, and his family

agreed to pay the lawyer to file a motion to reopen. Nevertheless,

the lawyer did not file the motion (even though she took the

money). Shortly thereafter, the lawyer's license to practice law

was suspended for neglecting a number of immigration cases.

- 3 -
 The petitioner retained yet a third attorney and moved

to reopen his immigration case in July of 2015.1 He explained that

his failure to arrive punctually at his April 2012 hearing stemmed

from his mistaken assumption that this hearing — like many earlier

immigration court hearings that he had attended on time — would

commence at 9:00 a.m. He also described the myriad ways in which

his first two attorneys had provided ineffective assistance of

counsel and argued that this deficient representation had

prevented him from attaining legal permanent resident status.

The IJ agreed that the petitioner had received

ineffective assistance of counsel and, thus, excused the untimely

filing of his motion to reopen. Withal, the IJ found that the

petitioner had not carried his burden of showing that exceptional

circumstances surrounded his failure to appear. Noting that the

hearing notice "clearly and unambiguously" showed an 8:00 a.m.

start time, the IJ concluded that the petitioner's failure to be

present at the appointed time could not be attributed to his

lawyers' inadequacies. Nor did the IJ perceive any sufficient

reason for exercising his discretionary authority to reopen the

case sua sponte. See 8 C.F.R. § 1003.23(b).

1 This period of delay resulted, in part, from the
petitioner's involvement in a drunk-driving case and his
subsequent incarceration. Both sides agree that this conviction
does not bear directly on his immigration status.

- 4 -
 In due course, the BIA affirmed the IJ's decision. This

timely petition for judicial review followed. See 8 U.S.C.

§ 1252(a)(1), (b)(1).

II. ANALYSIS

In the immigration context, judicial review normally

focuses on the decision of the BIA, which constitutes the agency's

final order. See Wan v. Holder, 776 F.3d 52, 55-56 (1st Cir.

2015). But where, as here, the BIA merely adds its gloss to the

IJ's findings and conclusions, we treat the two decisions as one.

See id.

We review denials of motions to reopen for abuse of

discretion. See id. The BIA's discretion is broad, but not

limitless. See Carter v. INS, 90 F.3d 14, 17 (1st Cir. 1996).

The BIA can abuse its discretion in a variety of ways, such as "by

neglecting to consider a significant factor that appropriately

bears on the discretionary decision, by attaching weight to a

factor that does not appropriately bear on the decision, or by

assaying all the proper factors and no improper ones, but

nonetheless making a clear judgmental error in weighing them."

Henry v. INS, 74 F.3d 1, 4 (1st Cir. 1996); cf. White v. INS, 17

F.3d 475, 479 (1st Cir. 1994) (stating that "[i]mproper

consideration of favorable or unfavorable factors by the BIA may

sometimes constitute abuse of discretion").

- 5 -
 The Immigration and Nationality Act (INA) provides that

when an alien fails to appear at a removal hearing, he "shall be

ordered removed in absentia" if the government can establish that

he had due notice of the hearing and was otherwise removable. 8

U.S.C. § 1229a(b)(5)(A). An alien may seek rescission of such an

order by moving to reopen within 180 days and demonstrating "that

the failure to appear was because of exceptional circumstances."

Id. § 1229a(b)(5)(C)(i); see 8 C.F.R. § 1003.23(b)(4)(iii)(A).

The INA offers some illustrations, explaining that exceptional

circumstances might include "battery or extreme cruelty to the

alien," serious illness, the death or serious illness of a family

member, or other similar circumstances beyond the alien's control.

8 U.S.C. § 1229a(e)(1).

If both the IJ and the BIA deny a motion to reopen an in

absentia removal order, the alien may seek judicial review in the

court of appeals. See id. § 1252(b)(2), (d)(1). That review is

limited to the validity of the notice provided to the alien, the

reasons for the alien's failure to appear, and the alien's

removability. See id. § 1229a(b)(5)(D); see also Herbert v.

Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003). Here, the petitioner

does not challenge the applicability of either the first or the

third of these elements. Our inquiry, then, concentrates on the

existence vel non of exceptional circumstances attendant to the

petitioner's failure to appear.

- 6 -
 To the extent that either the agency or the court is

required to decide whether exceptional circumstances exist, the

decisionmaker must take into account the totality of the

circumstances. See Kaweesa v. Gonzales, 450 F.3d 62, 68-69 (1st

Cir. 2006); Herbert, 325 F.3d at 72. Such an assessment may

encompass a wide variety of pertinent considerations, including

"the strength of the alien's underlying claim, the harm the alien

would suffer if the motion to reopen is denied, and the

inconvenience the government would suffer if the motion is

granted." Kaweesa, 450 F.3d at 69. This emphasis on the totality

of the circumstances is "grounded in due process considerations"

and the need to "ensure that an alien is not deprived of a

meaningful opportunity to be heard." Id. at 69-70.

Against this backdrop, we turn to the merits of the

petition for review that is now before us. We hold that the BIA

abused its discretion when it failed to consider the totality of

the circumstances and, in particular, failed to give due weight to

two salient factors that counseled in favor of reopening. In the

pages that follow, we explain our reasoning.

To begin, the BIA — and for purposes of the ensuing

"exceptional circumstances" analysis, we use the term "the BIA" as

a shorthand for both the BIA and the IJ, collectively — took too

narrow a view of the adverse effect of the petitioner's sub-par

representation. While the BIA found that poor lawyering excused

- 7 -
the late filing of the motion to reopen, it stopped there. In

doing so, it failed to give due weight to the role that counsel's

ineptitude played in converting the petitioner's minor tardiness

into an intractable in absentia removal order.

It is common ground that "[i]neffective assistance of

counsel during removal proceedings may comprise an exceptional

circumstance" sufficient to warrant reopening. Vaz Dos Reis v.

Holder, 606 F.3d 1, 4 (1st Cir. 2010); see Saakian v. INS, 252

F.3d 21, 25 (1st Cir. 2001). In this instance, counsel's

ineffectiveness was apparent: she not only neglected to inform the

IJ that her client was likely en route to the hearing but also

failed to move to reopen or otherwise alert the IJ to the

petitioner's arrival (despite the IJ's earlier invitation that she

do so). Had the attorney done her job in anything close to a

competent manner, the odds are good that the case would have been

reopened then and there. Cf. Jerezano v. INS, 169 F.3d 613, 615

(9th Cir. 1999) ("It is accepted practice for courts to give tardy

litigants a second chance by putting them at the end of the

calendar, and it seems both harsh and unrealistic to treat as a

nonappearance a litigant's failure to be in the courtroom at the

precise moment his case is called."). This was unquestionably

ineffective assistance of counsel. See Saakian, 252 F.3d at 24-

25 (explaining that in a removal proceeding, ineffective

assistance of counsel occurs when counsel's deficiencies render

- 8 -
the proceeding so fundamentally unfair that the alien is unable

reasonably to present his case and is prejudiced as a result).

The second major flaw in the BIA's analysis is its

failure to give proper weight to the minor extent of the

petitioner's tardiness. Though some of our sister circuits have

held that minor tardiness is not a failure to appear at all, see,

e.g., Perez v. Mukasey, 516 F.3d 770, 774-75 (9th Cir. 2008); Abu

Hasirah v. U.S. Dep't of Homeland Sec., 478 F.3d 474, 478 (2d Cir.

2007) (per curiam); Cabrera-Perez v. Gonzales, 456 F.3d 109, 116-

17 (3d Cir. 2006) (per curiam); Alarcon-Chavez v. Gonzales, 403

F.3d 343, 346 (5th Cir. 2005), we need not go that far. Suffice

it to say that all absences are not to be treated equally. In the

circumstances of this case, the BIA ought to have differentiated

between a total failure to appear and a tardy appearance — and it

did not do so. This is especially important here because (as a

general rule) minor tardiness should be excused more readily than

more flagrant absences. See Jerezano, 169 F.3d at 615; cf.

Herbert, 325 F.3d at 72 (expressing skepticism about whether minor

tardiness should be treated as a "true failure to appear" (internal

citation omitted)). We hold, therefore, that the BIA acted

unreasonably when it gave no weight at all to the minor extent of

the petitioner's tardiness. We add, moreover, that the BIA's

omission is all the more stark given the petitioner's unbroken

- 9 -
record of timely appearances at a lengthy series of earlier

immigration hearings.

The combined effect of the BIA's failure to give due

weight to these two salient factors is magnified by the presence

of other mitigating considerations. For instance, counsel's

lackluster performance at the removal hearing was only the latest

act of lawyerly incompetence visited upon the petitioner. Had the

petitioner received effective assistance of counsel from the very

beginning, he quite probably would have attained legal permanent

resident status long before April of 2012. His first attorney

bungled not one but two I-751 petitions. Then — when the

petitioner's second attorney learned that the government might

nonetheless be willing to exercise prosecutorial discretion in the

petitioner's case — she neglected to follow up in any meaningful

way: she did not file a new I-751 petition, did not request

administrative closure, and did not so much as file a motion

formally entreating the government to exercise prosecutorial

discretion.

The short of it is that the petitioner's previous

attorneys pulled the rug out from under him time and again, and

this fact ought to have weighed heavily in the totality of the

circumstances analysis. See Kaweesa, 450 F.3d at 69 & n.12

(emphasizing that the core of the analysis is the meaningful

opportunity to be heard, which includes consideration of the

- 10 -
effectiveness of counsel's assistance); see also Vaz Dos Reis, 606

F.3d at 4.

What is more, the BIA should consider "the strength of

the alien's underlying claim" when it inquires into the existence

of exceptional circumstances and applies the totality of the

circumstances rubric. Kaweesa, 450 F.3d at 69. Here — even though

the petitioner has had some trouble with the law, see supra note

1 — this factor counsels in favor of reopening. Had his previous

attorneys provided adequate assistance, the petitioner would have

been a promising candidate for legal permanent resident status: he

entered the United States legally more than 15 years ago at the

age of nine and has never left; he completed high school and

vocational school here; he attended a community college; his mother

has been married for some time to an American citizen; and his

younger brother already has received Deferred Action for Childhood

Arrivals (DACA) status.2

2 Aliens with DACA status have been granted temporary relief
from deportation to work or study in the United States. The
program is available to aliens who, among other things, entered
the United States before a particular age, have continuously
resided in the United States, and are either in school, have
graduated from school, or are United States military veterans.
Memorandum from Janet Napolitano, Sec'y, Dep't of Homeland Sec.,
to David Aguilar, Acting Comm'r, U.S. Customs & Border Prot., et
al. 1 (June 15, 2012),
https://www.ice.gov/doclib/about/offices/ero/pdf/s1-certain-
young-people.pdf (last visited Sept. 29, 2016).

- 11 -
 Finally, the factors that ordinarily militate against

allowing motions to reopen are at a low ebb in this case. For

example, we have stated that the exceptional circumstances

standard is intended to remove the temptation to skip a hearing

simply to delay imminent deportation. See Herbert, 325 F.3d at

71. Granting the petitioner's motion to reopen, though, would

have done no violence to this principle: the record does not

support an inference that the petitioner's late arrival at the

hearing was motivated in any way by a desire to postpone an

adjudication of his case. And we have been more forgiving of minor

delays where, as here, nothing in the petitioner's record reflects

any intent to avoid a hearing or delay removal. See Kaweesa, 450

F.3d at 71; Herbert, 325 F.3d at 72 n.1.

To sum up, the BIA neglected to give due weight to the

role of the petitioner's lawyer in failing promptly to ameliorate

the situation caused by the petitioner's late arrival at his

removal hearing. This bevue was compounded by the BIA's failure

to distinguish the petitioner's minor and uncharacteristic

tardiness from a total boycott of — or an attempt to delay — a

scheduled hearing and its concomitant failure to give due weight

to the extremely modest extent of the petitioner's tardiness.

These failures, taken together, constituted exceptional

circumstances sufficient to ground the petitioner's motion. And

in all events, the totality of the circumstances was favorable to

- 12 -
reopening. We thus hold that the BIA abused its discretion by

finding that the circumstances that prevented the petitioner from

having his day in court were unexceptional and by denying the

motion to reopen. The petitioner is entitled to present his case

at a merits hearing.3

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we grant the petition for judicial review, reverse the BIA's denial

of the motion to reopen, and remand with instructions to set aside

the in absentia removal order and reopen the petitioner's removal

proceedings.

So ordered.

3
We do not have jurisdiction over — and therefore do not
address — the petitioner's alternative claim that the BIA abused
its discretion by failing to reopen his case sua sponte. See
Charuc v. Holder, 737 F.3d 113, 115 (1st Cir. 2013) (explaining
that it is "settled beyond hope of contradiction that the decision
whether to exercise this sua sponte authority is committed to the
unbridled discretion of the BIA" (internal citation omitted)).

- 13 -