Tay-Chan v. Barr

United States Court of Appeals
For the First Circuit

No. 18-1973

EDGAR ROLANDO TAY-CHAN,

Petitioner,

v.

WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,*

Respondent.

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

Before

Lynch, Thompson, and Barron,
Circuit Judges.

Stanley H. Cooper on brief for petitioner.
Joseph H. Hunt, Assistant Attorney General, Civil Division,
John S. Hogan, Assistant Director, Office of Immigration
Litigation, and Andrea N. Gevas, Trial Attorney, Office of
Immigration Litigation, U.S. Department of Justice, on brief for
respondent.

* Pursuant to Fed. R. App. P. 43(c)(2), William P. Barr has
been substituted for former Acting Attorney General Matthew G.
Whitaker as the respondent.
March 13, 2019

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 THOMPSON, Circuit Judge.

We find ourselves explaining once again that "[m]otions

to reopen -- especially untimely motions to reopen -- are

disfavored in immigration cases. Consequently, an alien who seeks

to reopen removal proceedings out of time ordinarily faces a steep

uphill climb." Pineda v. Whitaker, 908 F.3d 836, 838 (1st Cir.

2018) (quoting Sihotang v. Sessions, 900 F.3d 46, 48 (1st Cir.

2018)). In today's case, that demanding hike is attempted by

petitioner Edgar Rolando Tay-Chan ("Tay-Chan"), a Guatemalan

native and citizen who first came to the U.S. in 2003.1 He was

later charged with removability, and now, with his immigration

proceedings not going the way he had hoped, Tay-Chan challenges

the Board of Immigration Appeals's ("BIA") denial of the motion to

reopen that he filed nearly seven years late. Because the BIA did

not abuse its discretion in so doing, we uphold the BIA's rejection

of the motion to reopen and deny Tay-Chan's petition for judicial

review.

BACKGROUND

Tay-Chan was born in Guatemala City, Guatemala in 1978,

where he received a fourth-grade education while living in a

1There's some debate as to whether Tay-Chan entered the U.S.
in 2003 or 2004. The government and the notice to appear list his
date of entry as August 2004, but Tay-Chan has repeatedly stated
that it was the summer of 2003. The precise date of entry having
no bearing on our analysis of the issues presented on appeal, we
assume it was 2003.

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violent neighborhood overrun by gangs. In need of a job to help

support his impoverished family, an eleven-year-old Tay-Chan left

school and began working at a local autobody shop, which, as it

turns out, was heavily involved in the neighborhood's criminal

activity. When Tay-Chan was fifteen, a member of MS-18 sought to

recruit Tay-Chan; in response, Tay-Chan tried to avoid any

interactions with members of MS-18. Unfortunately, this approach

didn't pan out long-term: Tay-Chan was later shot five times by

an MS-18 member. All told, over the years, Tay-Chan and his family

had quite a few violent encounters with MS-18, several of which

resulted in the deaths of Tay-Chan's family members.2

To escape all this violence, Tay-Chan entered the U.S.,

without inspection or detention, through the Mexico-Arizona

border. A few years later, the Immigration Service of the

Department of Homeland Security initiated removal proceedings

against Tay-Chan by issuing a notice to appear on April 25, 2006,

alleging he was removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i)

and (7)(A)(i)(I) (establishing removability for entrance into the

U.S. without inspection or parole and for the absence of a valid

immigrant visa, respectively). Tay-Chan hired an attorney, and

2 Tragically, Tay-Chan's brother was shot and killed by gang
members looking to extort money from him, and two of his cousins
died under similar circumstances. And, of the two children Tay-
Chan ultimately left in Guatemala when he came to the U.S., one
was fatally shot by MS-18 members in 2016.

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thereafter admitted the truth of the factual allegations and

conceded removability, but applied for withholding of removal. In

the alternative, Tay-Chan requested voluntary departure.

At his 2009 withholding of removal hearing before the

Immigration Judge ("IJ"), he was represented by a colleague of the

attorney he'd hired. Tay-Chan, who does not speak English, had

never met this colleague -- he says he was unable to communicate

with her due to the language barrier (he did have an interpreter

present, we note), and he asserts that he was not informed

beforehand that his hearing testimony would be confidential.

Before the IJ, Tay-Chan testified as to the crimes committed

against him and his family in Guatemala and his fears about

returning. Although the IJ found Tay-Chan's testimony credible,

he did not find that Tay-Chan had been a victim of past persecution

on account of a statutorily protected ground because Tay-Chan was

unable to identify why he was a target of the crimes committed.

Accordingly, the IJ denied Tay-Chan's application for withholding

of removal, but granted his request for voluntary departure.

Tay-Chan appealed, but the BIA agreed with the IJ:

although his testimony was credible, Tay-Chan failed to meet his

burden of proof for withholding of removal. The BIA acknowledged

that Tay-Chan and his family were victims of gang violence, but

even so, Tay-Chan had failed to establish that he was persecuted

based on a statutorily enumerated ground (such as membership in a

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particular social or political group). See 8 U.S.C.

§ 1231(b)(3)(A). The BIA's final order entered on April 14, 2011.

On April 3, 2018, nearly seven years after the BIA denied

his appeal, Tay-Chan filed a motion to reopen. In support of his

motion, Tay-Chan argued that he had received ineffective

assistance of counsel: the language barrier between him and his

attorney rendered him ill-equipped for the hearing, and, had he

understood his testimony would be confidential, he would have

testified more specifically as to his past persecution, which in

turn would have led the IJ to a different conclusion about Tay-

Chan's case. The BIA denied the motion as time-barred (the motion

was filed long after the expiration of the ninety-day deadline, 8

U.S.C. § 1229a(c)(7)(C)(i)), and declined Tay-Chan's invitation to

equitably toll the deadline based on the ineffective assistance of

counsel claim, finding no showing of due diligence and no resulting

prejudice. Tay-Chan seeks review of that denial.

STANDARD OF REVIEW

We review the BIA's denial of Tay-Chan's motion to reopen

under the "highly deferential abuse-of-discretion standard."

Pineda, 908 F.3d at 840 (citing Bbale v. Lynch, 840 F.3d 63, 66

(1st Cir. 2016)). In doing so, we bear in mind what we mentioned

at the outset: "a motion to reopen removal proceedings is a

disfavored tool, given the threat it poses to finality[.]"

Mazariegos v. Lynch, 790 F.3d 280, 285 (1st Cir. 2015) (citing

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Perez v. Holder, 740 F.3d 57, 61 (1st Cir. 2014)). We will uphold

the BIA's decision unless Tay-Chan can show that the BIA "committed

a material error of law or exercised its authority arbitrarily,

capriciously, or irrationally." Gyamfi v. Whitaker, 913 F.3d 168,

172 (1st Cir. 2019) (citations omitted).

DISCUSSION

Tay-Chan argues that the BIA abused its discretion when

it denied his motion to reopen his claim for withholding of

removal.3 More particularly, he faults the BIA for declining to

equitably toll the deadline by which he should have filed his

motion to reopen.

As a general matter, a noncitizen must file a motion to

reopen within ninety days of a final administrative order of

removal, see 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2),

though, as often is the case, there are some exceptions, 8 C.F.R.

3 In his brief, Tay-Chan states that the BIA abused its
discretion when it didn't reopen the proceedings, naming both his
claims for political asylum and withholding of removal, but he
doesn't actually make an argument regarding asylum. In fact, the
asylum piece was not pressed below, either: at the 2009 hearing,
the IJ confirmed that Tay-Chan sought only withholding of removal,
and the oral decision went on to explain that Tay-Chan wasn't
eligible for asylum anyway. Tay-Chan didn't argue his asylum
eligibility to the BIA. So, to the extent Tay-Chan intends to
chase this down on appeal, it is not properly before us. See,
e.g., Aguilar-De Guillen v. Sessions, 902 F.3d 28, 34 n.8 (1st
Cir. 2018) (citing Ishak v. Gonzales, 422 F.3d 22, 32 (1st Cir.
2005)); Shah v. Holder, 758 F.3d 32, 37 (1st Cir. 2014).

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§ 1003.2(c)(3) (for example, the deadline is 180 days when an order

is entered in absentia and the alien shows the existence of

exceptional circumstances, 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1)).

Here, the BIA's final administrative order was issued on April 14,

2011, so the ninety-day window closed on July 13, 2011. Tay-Chan

filed his motion to reopen on April 3, 2018, nearly seven years

late. We do not dwell on the untimeliness -- Tay-Chan does not

argue that his motion was timely, nor does he argue that any

statutory exception applies.

Instead, conceding he missed the deadline, Tay-Chan

proffers the doctrine of equitable tolling: he says the ninety-

day cut-off should have been equitably tolled based on the

ineffective assistance provided to him by his attorney. "[T]here

was no way for [him] to learn of the legal standard that an attorney

is required to perform at until he consult[ed] subsequent

counsel[,]" and but for his attorney's conduct, the IJ "may have

reached a different decision." In Tay-Chan's telling, the language

barrier and poor IJ-hearing prep combined to leave Tay-Chan unaware

that the proceeding was confidential. This matters because Tay-

Chan, believing what he said would not be kept secret, was too

afraid to name his terrorizers -- had he named the specific gang,

he says, his case would have ended differently.

But before we assess that argument, we provide the lay

of the land on the doctrine of equitable tolling, which "extends

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statutory deadlines in extraordinary circumstances for parties who

were prevented from complying with them through no fault or lack

of diligence of their own." Neves v. Holder, 613 F.3d 30, 36 (1st

Cir. 2010) (citing Fustaguio Do Nascimento v. Mukasey, 549 F.3d

12, 18-19 (1st Cir. 2008); Gonzalez v. United States, 284 F.3d

281, 291 (1st Cir. 2002)). Anyone who wishes to have a deadline

equitably tolled must establish two things: "(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way." Id. (quoting Pace v. DiGuglielmo,

544 U.S. 408, 418 (2005)). It is well settled in this circuit

that equitable tolling "is a rare remedy to be applied in unusual

circumstances, not a cure-all for an entirely common state of

affairs," id. (quoting Wallace v. Kato, 549 U.S. 384, 396 (2007)),

and the decision to apply equitable tolling is a judgment call,

see Cordle v. Guarino, 428 F.3d 46, 48 (1st Cir. 2005). It follows

that the BIA's decision to employ equitable tolling (or not, as

the case may be) "will stand unless [its] resolution rests on a

material error of law or a manifestly arbitrary exercise of

judgment." Meng Hua Wan v. Holder, 776 F.3d 52, 56 (1st Cir. 2015)

(citing Roberts v. Gonzales, 549 F.3d 33, 35 (1st Cir. 2005)).

Our case law is clear that the equitable tolling doctrine

should be used very sparingly. See, e.g., Meng Hua Wan, 776 F.3d

at 58 (citing Irwin v. Dep't of Vets. Affairs, 498 U.S. 89, 96

(1990); Guerrero-Santana v. Gonzales, 499 F.3d 90, 94 (1st Cir.

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2007)). Actually, around here, it should be used sparingly, if at

all -- we have not yet given the thumbs-up on applying equitable

tolling to motions to reopen. See, e.g., Neves, 613 F.3d at 36;

Chedid v. Holder, 573 F.3d 33, 37 (1st Cir. 2009). But for today,

we once again "take our cue from decisions past and assume, without

deciding, that the ninety-day rule is subject to equitable

tolling." Gyamfi, 913 F.3d at 174-75 (citing Neves, 613 F.3d at

36); see also Pineda, 908 F.3d at 841.

This primer in place, we circle back to Tay-Chan's

equitable tolling argument. Below, the BIA declined to equitably

toll the ninety-day filing deadline because Tay-Chan did not

demonstrate he exercised due diligence in moving to reopen, nor

did he provide "a coherent and persuasive explanation for the

almost 7 year delay." Recall that Tay-Chan argues that the

deadline should be equitably tolled based on his ineffective

assistance of counsel claim, which he submits he couldn't have

known existed "until he consult[ed] subsequent counsel." Further,

he tells us he filed the motion to reopen within thirty days of

"being informed" (presumably by "subsequent counsel," though Tay-

Chan does not make that explicit) of the "less than competent"

representation he'd had before the IJ. But all of this misses the

point: his argument tells us nothing about why he waited nearly

seven years before taking any steps at all to address his

immigration status, and it is this unexplained delay that is so

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problematic in that it undermines any assertion that he pursued

his rights (the ineffective assistance claim, the motion to reopen)

with the requisite due diligence. Neves, 613 F.3d at 36. Indeed,

this unexplained inactivity during the years between the BIA's

2011 ruling on his withholding of removal and his 2018 motion to

reopen fully supports the BIA's no-due-diligence finding. Pineda,

908 F.3d at 842 (upholding BIA's finding of no due diligence when

petitioner waited nearly four and a half years to pursue

ineffective assistance of counsel claim and to file motion to

reopen); see also Guerrero-Santana, 499 F.3d at 94.4 We recite

what we have explained many times: "[t]he [equitable tolling]

doctrine is not available as a means of rescuing a party who has

failed to exercise due diligence." Pineda, 908 F.3d at 842

(quoting Guerrero-Santana, 499 F.3d at 94) (alterations in

original). We see no abuse of discretion.

And what's more, the due-diligence determination by the

BIA here actually "is supportable even if we assume, for argument's

sake, that the petitioner received ineffective assistance of

counsel." Meng Hua Wan, 776 F.3d at 58 (taking the same approach

4
We do not address the "extraordinary circumstance" element
of the equitable tolling doctrine relative to Tay-Chan's case.
Even if Tay-Chan gave us something to go on for that element, it
would not save his case -- he needed to show both the extraordinary
circumstance that stood in his way and due diligence, Neves, 613
F.3d at 36, and, as we just concluded, he has failed to show the
latter.

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when, even if petitioner had received ineffective assistance,

petitioner still didn't take any action regarding his immigration

proceedings for more than ten years). Here, even assuming

favorably to Tay-Chan that he is correct about the ineffective

assistance of counsel, he still has a due-diligence problem: that

faulty assistance took place long before he finally moved to reopen

his case in 2018 and, as discussed, he offers no account of what

he did to diligently pursue his case between the incident of

ineffective assistance and ultimately taking action. So, even if

the ineffective assistance occurred as Tay-Chan claims, the

protracted period of inactivity after it still supports the BIA's

conclusion that Tay-Chan did not show due diligence.5

In the end, we conclude that the BIA neither committed

a material error of law nor acted arbitrarily, capriciously, or

irrationally, and, on the record before us, we see no abuse of

discretion in the BIA's decision denying the untimely motion to

reopen and declining to equitably toll the deadline.

5As we've just concluded, the ineffective assistance of
counsel Tay-Chan claims to have received at the hearing before the
IJ does not explain his failure to comply with a years-later,
after-the-fact ninety-day deadline. Therefore, we need not reach
the merits of his ineffective assistance of counsel claim.
Guerrero-Santana, 499 F.3d at 93 (concluding the merits of
petitioner's ineffective assistance of counsel claim were
immaterial when petitioner had failed to explain how his attorney's
poor counsel caused the failure to comply with a temporal
deadline).

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 CONCLUSION

For the reasons detailed above, we affirm the BIA's order

denying Tay-Chan's motion to reopen to adjust status and deny his

petition for judicial review.

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