IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 18, 2008
No. 07-60312 Charles R. Fulbruge III
Clerk
OSCAR ARNOLDO RAMOS-BONILLA
Petitioner
v.
MICHAEL B MUKASEY, US ATTORNEY GENERAL
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
Before KING, DeMOSS, and PRADO, Circuit Judges.
PRADO, Circuit Judge:
The Board of Immigration Appeals (“BIA”) denied petitioner’s motions to
reopen. Because we lack jurisdiction to review the BIA’s discretionary decision
not to exercise its authority to reopen a case sua sponte, we dismiss petitioner’s
appeal.
I. FACTS AND PROCEDURAL HISTORY
Oscar Arnoldo Ramos-Bonilla (“Ramos”), a citizen of El Salvador, arrived
in the United States in June 1986 without inspection by an immigration officer.
The Immigration and Naturalization Service (“INS”) ordered Ramos to show
cause as to why he should not be deported. Ramos conceded deportability, but
he applied for asylum and withholding of deportation, claiming he would be
No. 07-60312
tortured and killed if he were removed to El Salvador. At an immigration
hearing in May 1987, Ramos’s counsel appeared, but Ramos himself did not
attend and did not show good cause for his failure to appear. The court deemed
Ramos’s asylum claim abandoned and granted Ramos voluntary departure.
Ramos’s counsel waived Ramos’s right to appeal that decision. In the ensuing
years, Ramos remained in the United States, got married in New York, and
fathered two children, who are both American citizens. Ramos’s wife became a
lawful permanent resident on April 25, 2000.
On September 9, 1998, Ramos filed an initial motion to reopen and stay
deportation to allow him to apply for relief under § 203 of the Nicaraguan
Adjustment and Central American Relief Act, Pub. L. No. 105-100 (“NACARA”).1
Ramos alleged that his deportation would cause extreme hardship to him and
his family. Thereafter, Ramos’s counsel at the time, New York lawyer David M.
Sperling (“Sperling”), also submitted a full NACARA application (“I-881”) on
Ramos’s behalf. According to Sperling, he filed the full application prior to the
November 18, 1999 deadline. However, instead of properly submitting that form
to the immigration court, Sperling filed the application with INS’s Vermont
Service Center.
1
Section 203 of NACARA allowed an alien to file a motion to reopen immigration
proceedings. The deadline to file an initial motion to reopen was September 11, 1998. 8 C.F.R.
§ 1003.43(e)(1). An alien also was required to submit an application for suspension of
deportation or special rule cancelling removal and accompanying documents by November 18,
1999. Id. § 1003.43(e)(2). Under § 203 of NACARA, aliens were allowed to apply for
suspension of deportation under the more lenient standard that existed before the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208
(“IIRIRA”), was enacted. Before IIRIRA, deportation could be stayed if an applicant could
show that she or a qualifying relative would suffer extreme hardship. See Immigration and
Nationality Act (“INA”) § 244(a)(1), 8 U.S.C. § 1254(a)(1) (1994).
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In June 2000, Sperling wrote a letter to the immigration court, explaining
that the complete NACARA application had been timely filed, but filed in the
wrong place. Sperling took full responsibility for this “procedural error” and
requested that Ramos’s case be administratively closed to allow him to seek
NACARA relief.
On July 27, 2001, an immigration judge (“IJ”) ruled that Ramos’s initial
motion was timely under NACARA; however, the judge denied the motion to
reopen because Ramos had not filed the full NACARA application for suspension
of deportation with supporting documents prior the regulatory deadline of
November 18, 1999.
On August 7, 2001, Ramos filed an appeal with the BIA, arguing that the
IJ abused its discretion in denying Ramos’s motion to reopen. He argued that
his motion to reopen and his I-881 application were both timely filed, and that
the IJ acted contrary to the congressional purpose of NACARA in denying the
motion on “a narrow technical issue”—submission of the I-881 application to the
wrong agency. On February 28, 2002, the BIA dismissed the appeal, concluding
that the IJ properly applied the regulatory filing deadline in denying Ramos’s
motion to reopen. Ramos did not appeal that ruling to this court.
Almost five years later, in January 2007, Ramos—represented by new
counsel—filed a motion to reopen in the BIA on the basis of ineffective assistance
of counsel. The motion requested that the BIA reopen the case to allow Ramos
to seek relief under NACARA. Accompanying the motion was a statement by
Ramos’s new counsel—Linda G. Nanos (“Nanos”)—that the denial of Ramos’s
original NACARA application was due to his prior attorney’s ineffective
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assistance and that Ramos is “prima facie eligible” for NACARA relief.2 Also
attached was a sworn affidavit of Ramos that his prior NACARA application had
been rejected due to attorney error. He further swore that it would be an
“extreme hardship” to be deported to El Salvador because of conditions in his
home country and his established family in the United States. On March 21,
2007, the BIA denied the motion to reopen, holding it time barred because the
motion was filed nearly five years after the BIA’s last decision, and number
barred because the regulations allow only one motion to reopen, whether filed
with the BIA or the IJ. 8 C.F.R. § 1003.2(c)(2). Ramos had previously filed his
original NACARA motion to reopen in 1998.
In addressing Ramos’s ineffective assistance claim, the BIA noted that the
Fifth Circuit had not adopted the doctrine of equitable tolling in this context.
Nevertheless, even if equitable tolling were available, the BIA concluded that
Ramos failed to show he was entitled to such relief because he failed to pursue
his ineffective assistance of counsel claim with due diligence. The BIA noted
that Ramos must have been aware of his counsel’s error when the IJ denied his
first motion to reopen—more than five years prior to his second motion. Because
Ramos failed to provide any explanation for that delay, the BIA denied his
motion to reopen. Ramos filed a timely petition for review of that order with this
court.
On April 18, 2007, Ramos filed with the BIA what he styled a motion to
reconsider the BIA’s denial of his January 2007 motion to reopen. Ramos
attached an affidavit in which he claimed to establish a factual basis for a
2
Nanos also sent a letter to attorney disciplinary authorities in New York, where
Sperling practices.
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finding of equitable tolling because, between the BIA’s 2002 denial and his 2007
motion, Ramos “continuously tried to find legal advice and assistance to do
whatever was appropriate to address his immigration problem.”
The affidavit attempted to account for the long delays in his case. Ramos
alleged that after Sperling admitted he had misfiled the NACARA application,
Ramos took his file to “a person known as the ‘Priest’” who was reputed to be
“good in handling immigration cases.” Ramos claimed he left his file with the
“Priest”—who apparently is an ordained priest—at his office in St. Joseph’s
Church in the Bronx, New York. Ramos never heard back from the priest, but
the priest’s assistants told Ramos to wait. Ramos claimed he visited the church
every two weeks for two years. Eventually he asked for his file back and was
told it had been lost.
Ramos next sought the assistance of a New York attorney, who told him
to wait while the attorney sought a copy of Ramos’s immigration file. Another
two years lapsed. In 2005, Ramos contacted a different attorney, Nanos,
who—after another eleven months—obtained Ramos’s file and filed the January
2007 motion to reopen. Ramos admits in the affidavit that Sperling told him in
2001 of the filing error. He also alleges—without further explanation—that the
delays were caused in part by the government’s delay in responding to a FOIA
request.
Because Ramos’s motion sought consideration of new evidence, the BIA
characterized the motion as a third motion to reopen the IJ’s May 6, 1987 order.3
3
The first motion to reopen was the original NACARA motion filed in September 1998;
the second was the January 2007 motion to reopen.
The BIA did not err in characterizing the April 2007 motion as a motion to reopen. A
motion to reconsider is used to specify “errors of fact or law” in a prior BIA decision. 8 C.F.R.
§ 1003.2(b)(1). A motion to reopen, by contrast, alleges “new facts” and is “supported by
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In a May 30, 2007 order, the BIA held the motion to be both time and number
barred under 8 C.F.R. § 1003.2(c)(2). The BIA also concluded that because
Ramos sought suspension of deportation—which is discretionary relief—he had
no due process right to that relief and therefore no due process right to effective
assistance of counsel in pursuing that relief. The BIA denied Ramos’s motion,
and Ramos filed a timely petition for review in this court.
In this appeal, Ramos seeks review of the BIA’s decisions of March 21,
2007, and May 30, 2007. Ramos primarily argues that (1) the BIA abused its
discretion by failing to apply equitable tolling or waive the numerical limitation
with respect to his April 17, 2007 motion; and (2) the government should be
equitably estopped from contesting his motion to reconsider or reopen.
II. DISCUSSION
In general, this court has jurisdiction to review constitutional and legal
claims raised in a petition for review of a BIA decision. 8 U.S.C. § 1252(a)(2)(D).4
However, a petitioner must exhaust all administrative remedies before
appealing to this court. Id. § 1252(d). This court has held that a failure to meet
a regulatory deadline under NACARA is a failure to exhaust administrative
remedies that strips this court of jurisdiction to review a BIA decision. See
Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248 (5th Cir. 2004). In Enriquez-
affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1); see also Matter of Cerna, 20
I & N Dec. 399, 400, 402-03 (B.I.A. 1991) (describing the difference between a motion to
reconsider and a motion to reopen). Ramos’s April 2007 motion was accompanied by an
affidavit offering new evidence of his due diligence in pursuing his immigration case.
4
8 U.S.C. § 1252(a)(2)(B)(ii) strips jurisdiction of federal courts to review an action by
the Attorney General or Secretary of Homeland Security that is within the discretion granted
in the INA. That provision, however, is no bar to this court’s jurisdiction because the discretion
exercised by the BIA in this case was pursuant to a grant of discretion by a regulation, 8 C.F.R.
§ 1003.2, not by statute. See Zhao v. Gonzales, 404 F.3d 295, 302-03 (5th Cir. 2005).
6
No. 07-60312
Alvarado, the petitioner filed his NACARA application in November 1999, after
the September 1998 deadline for initial NACARA filings. Id.; see 8 C.F.R.
§ 1003.43(e). The BIA dismissed the petitioner’s direct appeal, and he sought
review in this court. Enriquez-Alvarado, 371 F.3d at 248. Under NACARA, an
alien is limited to one motion to reopen, which must be filed prior to September
11, 1998. 8 C.F.R. § 1003.43(e). Immigration regulations allow motions to
reopen or reconsider subject to specific time and number limitations. See
id. § 1003.2(b)(2), (c)(2). However, because the petitioner failed to meet the
NACARA deadline or the § 1003.2 requirements for a motion to reopen, the only
remedy available was under the IJ’s or the BIA’s sua sponte authority to reopen
the case. Enriquez-Alvarado, 371 F.3d at 248-49; 8 C.F.R. § 1003.23(b) (“An [IJ]
may upon his or her own motion at any time, or upon motion of . . . the alien,
reopen or reconsider any case in which he or she has made a decision . . . .”); 8
C.F.R. § 1003.2(a) (“The Board may at any time reopen or reconsider on its own
motion any case in which it has rendered a decision.”). Because this provision
gives an IJ or the BIA complete discretion to deny untimely motions to reopen,
the reviewing court has no legal standard by which to judge the IJ’s ruling, and
therefore the court lacks jurisdiction. Enriquez-Alvarado, 371 F.3d at 249-50
(citing Heckler v. Chaney, 470 U.S. 821, 830 (1985) (“[R]eview is not to be had if
the statute is drawn so that a court would have no meaningful standard against
which to judge the agency’s exercise of discretion.”)).
Ramos seeks review of the BIA’s denial of his untimely motions to
reconsider. Ramos claims the time and number limitations that apply to
motions to reopen should be equitably tolled due to ineffective assistance of
counsel. This court has held that a request for equitable tolling of a time- or
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No. 07-60312
number-barred motion to reopen on the basis of ineffective assistance of counsel
is “in essence an argument that the BIA should have exercised its discretion to
reopen the proceeding sua sponte based upon the doctrine of equitable tolling.”
Ben Jie Lin v. Mukasey, No. 07-60350, 2008 WL 2725317, at *1 (5th Cir. July 11,
2008) (per curiam) (unpublished). Therefore, under Enriquez-Alvarado, this
court lacks jurisdiction to review the BIA’s denials of Ramos’s motions to reopen.
See, e.g., Yang v. Mukasey, No. 07-60373, 2008 WL 2128002, at *1 (5th Cir. May
21, 2008) (per curiam) (unpublished) (holding that the Fifth Circuit lacks
jurisdiction to review a BIA’s denial of a time- and number-barred motion to
reopen in which the petitioner sought equitable tolling on the basis of ineffective
assistance of counsel); Riera-Elena v. Mukasey, 277 F. App’x 400, 402 (5th Cir.
2008) (per curiam) (unpublished) (same).
Because this court lacks jurisdiction to review the BIA’s denial of Ramos’s
untimely motions to reopen, we do not reach Ramos’s equitable tolling or
ineffective assistance of counsel arguments on their merits.5
III. CONCLUSION
5
For the first time in his appeal, Ramos argues that the government should be
equitably estopped from contesting his attempt to reopen immigration proceedings because the
government failed to transfer his immigration petition from the INS, where it was filed, to the
immigration court, where it should have been filed. Ramos also alleges that the government
should have at least informed his attorney of the filing error.
Ramos did not raise this argument in any of the motions he filed with the BIA. Such
a failure to exhaust creates a jurisdictional bar as to that issue, and this court will not consider
that argument. Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001) (“An alien fails to
exhaust his administrative remedies with respect to an issue when the issue is not raised in
the first instance before the BIA—either on direct appeal or in a motion to reopen.”).
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For the reasons stated above, we lack jurisdiction to consider this appeal.
The petition for review of the BIA’s rulings is dismissed.
DISMISSED.
9