Bead v. Holder, Jr.

United States Court of Appeals
For the First Circuit

No. 12-1434

EBENEZER JACKSON BEAD,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

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

Before

Lynch, Chief Judge,
Boudin* and Stahl, Circuit Judges.

Gregory C. Osakwe on brief for petitioner.
Robert Michael Stalzer, Trial Attorney, United States
Department of Justice, Office of Immigration Litigation, Stuart F.
Delery, Acting Assistant Attorney General, Civil Division, and
Thomas B. Fatouros, Senior Litigation Counsel, Office of
Immigration Litigation, on brief for respondent.

January 7, 2013

*
Judge Boudin heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 28 U.S.C.
§ 46(d).
 STAHL, Circuit Judge. In 2007, an Immigration Judge (IJ)

ruled that petitioner Ebenezer Jackson Bead had abandoned his

asylum application by failing to provide biometric information to

the Department of Homeland Security (DHS). Three years later, Bead

moved to reopen his case, arguing that he had received ineffective

assistance of counsel. We agree with the Board of Immigration

Appeals (BIA) that Bead's motion to reopen was untimely, and we

therefore deny the petition for review.

I. Facts & Background

Bead, a native and citizen of Liberia, entered the United

States without inspection on an unknown date. In April 2003, he

filed for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). He was referred into removal

proceedings in September 2003. Bead appeared without counsel at

two initial master calendar hearings. At a third master calendar

hearing in October 2004, he appeared with an attorney. Bead

conceded his removability, and the IJ scheduled a merits hearing

for December 2006 to adjudicate Bead's applications for asylum,

withholding of removal, and CAT protection. She also reminded Bead

to get his fingerprints taken.

In February 2006, the IJ directed Bead's attorney to

provide proof, by May 15, 2006, that Bead had submitted biometric

and biographical information to DHS, as required by 8 C.F.R.

§ 1003.47. There was no response. As a result, in February 2007,

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the IJ found that Bead had abandoned his asylum application, see

id. § 1003.47(c), and ordered him removed to Liberia. Bead did not

appeal that decision.

In February 2010, Bead moved to reopen his case, arguing

that he had received ineffective assistance from his prior counsel,

who had failed (Bead said) to submit the biometric information and

to notify Bead that he had been ordered removed. Bead attached an

affidavit, which explained that he did not learn of the removal

order until June 2009, when, after attempting in vain to contact

his prior counsel, he obtained new counsel, who inquired about the

status of the case. The affidavit further stated that Bead had

filed a bar complaint against his prior counsel in July 2009. Also

attached to the motion were the bar complaint and Bead's prior

counsel's responses thereto, which asserted that Bead had hired him

only for the October 2004 master calendar hearing and had not paid

him for that appearance. Bead's prior counsel claimed that Bead

had confessed to him that he had lied in his asylum application and

that he planned to abandon the application rather than risk

discovery of that deception. Finally, Bead's prior counsel stated

that, upon receiving the removal order, he had given Bead a copy in

person. DHS did not file a response to Bead's motion to reopen.

The IJ denied the motion as untimely, because Bead had

filed it beyond the ninety-day limit established by 8 C.F.R.

§ 1003.23(b)(1). She noted that this court has not yet decided

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whether equitable tolling is available in the immigration context,

but has held that, if so, tolling would be unavailable if the

petitioner has failed to exercise due diligence in pursuing his

case. See Nascimento v. Mukasey, 549 F.3d 12, 18 (1st Cir. 2008).

She concluded that Bead had failed to demonstrate due diligence,

because he was present when his merits hearing was scheduled for

December 2006 and neither took action to pursue his case before

that date had passed, nor took steps to follow the court's

direction to have his fingerprints taken. She also found that,

even if Bead had learned of the removal order in June 2009 (as he

said), and not when it was issued (as his prior counsel said), his

unexplained delay in filing the motion to reopen until late

February 2010 further established a lack of diligence.1

The BIA affirmed, agreeing with the IJ that, even if the

equitable tolling doctrine applied, Bead had not established due

diligence, because he had failed to explain: (1) the three-year

delay between the issuance of the removal order and the filing of

his motion to reopen; or (2) the eight-month delay between his

alleged discovery of the removal order and the filing of his motion

to reopen. Bead now petitions for our review of that ruling.

1
The IJ also concluded that Bead had failed to show a
reasonable probability of prejudice, see Aponte v. Holder, 683 F.3d
6, 15 (1st Cir. 2012), given his prior counsel's allegations that
Bead planned to abandon his asylum application. We do not address
that finding here, since the BIA did not reach it. See Ouk v.
Keisler, 505 F.3d 63, 67 (1st Cir. 2007) (limiting our review to
those portions of the IJ's opinion that the BIA adopted).

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 II. Analysis

"The motion to reopen is an 'important safeguard'

intended 'to ensure a proper and lawful disposition' of immigration

proceedings." Kucana v. Holder, 130 S. Ct. 827, 834 (2010)

(quoting Dada v. Mukasey, 554 U.S. 1, 18 (2008)). However, the BIA

enjoys "broad discretion" in deciding motions to reopen, and the

courts therefore employ "a deferential, abuse-of-discretion

standard of review." Id. (quoting INS v. Doherty, 502 U.S. 314,

323 (1992)) (internal quotation marks omitted). Thus, Bead must

"show that the BIA committed an error of law or exercised its

judgment in an arbitrary, capricious, or irrational way." Raza v.

Gonzales, 484 F.3d 125, 127 (1st Cir. 2007). We review the BIA's

decision and "those portions of the IJ's opinion that the BIA has

adopted." Ouk v. Keisler, 505 F.3d 63, 67 (1st Cir. 2007)

(citation and internal quotation marks omitted).

A motion to reopen removal proceedings must be filed

within ninety days of the final administrative decision, unless the

motion: (1) seeks rescission of an in absentia removal order;

(2) alleges changed country conditions; (3) is joined and agreed

upon by all parties; or (4) is filed by DHS. See 8 C.F.R.

§ 1003.23(b)(1), (4). In his brief on appeal, Bead alludes to

exemptions one and three, but neither is applicable here.

Exemption one does not apply because Bead's removal order was not

in absentia. The in absentia hearing procedures are governed by 8

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U.S.C. § 1229a, while the IJ's authority to find a petitioner's

claims abandoned or waived derives from the regulations, e.g., 8

C.F.R. §§ 1003.31, 1003.47. Those determinations have different

substantive requirements, and there is nothing in either the

regulations or the statute to suggest that they are

interchangeable. Compare 8 U.S.C. § 1229a(b)(5)(A) (authorizing

removal in absentia where a petitioner "does not attend a

proceeding" and is shown by clear and convincing evidence to be

removable), with 8 C.F.R. § 1003.47(c) (authorizing dismissal of an

application for failure to provide biometric and biographical

information); accord Williams-Igwonobe v. Gonzales, 437 F.3d 453,

456 (5th Cir. 2006). As for exemption three, while 8 C.F.R.

§ 1003.23(b)(1)(iv) required the IJ to treat Bead's motion to

reopen as unopposed because DHS did not respond to it, the motion

certainly was not "agreed upon by all parties and jointly filed,"

id. § 1003.23(b)(4)(iv).2

2
Equally lacking in merit is Bead's claim that the IJ and BIA
were not permitted to deny his motion to reopen because DHS never
responded to it. The regulations place the burden on the
petitioner to prove that reopening is appropriate, without any
exception for unopposed motions, and vest discretion in the IJ to
determine whether such a motion should be granted. See, e.g., 8
C.F.R. § 1003.23(b)(1)(iv) (stating that "[a] motion shall be
deemed unopposed unless timely response is made" but that "[t]he
decision to grant or deny a motion to reopen . . . is within the
discretion of the Immigration Judge"); id. § 1003.23(b)(3) ("The
Immigration Judge has discretion to deny a motion to reopen even if
the moving party has established a prima facie case for relief.");
cf. Sousa v. Ashcroft, 393 F.3d 271, 273, 275 (1st Cir. 2005)
(affirming the denial of a motion to reconsider where DHS had
failed to oppose the motion below).

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 That leaves Bead's argument that he should have the

benefit of the equitable tolling doctrine, which "provides that in

exceptional circumstances, a statute of limitations may be extended

for equitable reasons not acknowledged in the statute creating the

limitations period." Nascimento v. Mukasey, 549 F.3d 12, 18 (1st

Cir. 2008) (citation and internal quotation marks omitted). We

have yet to decide "whether the BIA has either the authority or the

obligation to apply equitable tolling in the immigration context."

Id. (citation and internal quotation marks omitted). We have,

however, said that if the equitable tolling doctrine is available

to circumvent the statutory provision limiting motions to reopen,

it generally requires a petitioner to demonstrate that: (1) "he has

been pursuing his rights diligently"; and (2) "some extraordinary

circumstance stood in his way." Neves v. Holder, 613 F.3d 30, 36

(1st Cir. 2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005)).

The BIA did not abuse its discretion in finding that Bead

had not diligently pursued his rights. See Kucana, 130 S. Ct. at

834. Bead was present at the October 2004 master calendar hearing,

when the IJ scheduled his merits hearing for December 2006 and

directed him to get his fingerprints taken. The alleged

ineffective assistance began in May 2006, when Bead says his prior

counsel failed to submit the required biometric information.

Bead's affidavit provides no information about what, if any, steps

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he took to determine the status of his case until June 2009, when

he contacted a new attorney, almost five years after the master

calendar hearing. Bead's statement in his affidavit that he

"relied entirely on [his prior counsel] to advise [him] in [his]

removal hearing and file whatever documents [were] required," is

simply inadequate to demonstrate due diligence. See Jobe v. INS,

238 F.3d 96, 101 n.8 (1st Cir. 2001) (noting that the petitioner

"bears the burden of making a prima facie showing of entitlement to

equitable tolling, and therefore of filling in any gaps in the

record regarding whether his is a case warranting equitable

relief").

The affidavit is also silent as to what, if any,

communications Bead exchanged or tried to exchange with his prior

counsel during the five-year period between the master calendar

hearing and his consultation with a new attorney. It merely says

that he eventually contacted a new attorney "after trying in vain"

to reach his prior counsel. See Neves, 613 F.3d at 37 (affirming

the denial of a motion to reopen where the petitioner failed to

provide any details regarding "the dates or frequency of [his]

contacts" with his attorney over a three-year period between the

decision and his discovery of the ineffective assistance). Nor

does Bead's affidavit address why he then waited eight more months

to file a motion to reopen after learning of the removal order.

Those numerous unexplained delays foreclose any finding "that the

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[BIA] committed an error of law or exercised its judgment in an

arbitrary, capricious, or irrational way." Raza, 484 F.3d at 127.

The remainder of Bead's arguments on appeal are not

properly before us, because he failed to raise them before the BIA.

See 8 U.S.C. § 1252(d)(1); Silva v. Gonzales, 463 F.3d 68, 72 (1st

Cir. 2006) ("Under the exhaustion of remedies doctrine, theories

insufficiently developed before the BIA may not be raised before

this court."). They include: (1) Bead's claim that Matter of

Lozada, 19 I. & N. Dec. 637 (BIA 1988), required him to wait for

his prior counsel's response to his bar complaint before filing the

motion to reopen;3 (2) his contradictory claim (raised for the

first time in his reply brief) that Lozada actually does not apply

here, because the case should be governed either by the good-cause

standard in 8 C.F.R. § 1003.47(d) or by the exception to Lozada

articulated in Escobar-Grijalva v. INS, 206 F.3d 1331 (9th Cir.),

amended by 213 F.3d 1221 (9th Cir. 2000); and (3) his argument that

his due process rights were violated under Saakian v. INS, 252 F.3d

21 (1st Cir. 2001), because his ineffective assistance claim was

never adjudicated on the merits.

Finally, Bead challenges the IJ's February 2007 dismissal

of his application, but we lack jurisdiction to review that order,

3
In any event, Bead's Lozada argument does not explain the
further four-month delay between his prior counsel's October 2009
response to the bar complaint and the February 2010 filing of
Bead's motion to reopen.

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because Bead never appealed it to the BIA. See 8 U.S.C.

§ 1252(d)(1).

III. Conclusion

For the foregoing reasons, we deny the petition for

review.

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