Mahamat v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
December 12, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT

ABDALLAH HASSAN MAHAMAT,

Petitioner,

v. No. 04-9571

ALBERTO R. GONZALES, Attorney
General, *

Respondent.

PETITION FOR REVIEW FROM THE BOARD OF
IMMIGRATION APPEALS
(No. A76-912-015)

Hakeem Ishola, Salt Lake City, Utah, for Petitioner. **

Richard M. Evans, Marshall Tamor Golding, U.S. Department of Justice, Office
of Immigration Litigation, Washington D.C., for Respondent.

*
On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as the
Respondent in this action.
**
After examining the brief and appellate record, this panel has determined
unanimously to grant the petitioner’s request for a decision without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Before TYMKOVICH, PORFILIO, and BALDOCK, Circuit Judges.

TYMKOVICH, Circuit Judge.

This petition for review challenges the Board of Immigration Appeals’

(BIA’s) decision rejecting petitioner Abdallah Hassan Mahamat’s ineffective-

assistance-of-counsel claim. We deny the petition.

B ACKGROUND

In 1998, Mr. Mahamat, a native and citizen of Chad, entered the United

States on a non-immigrant tourist visa. He overstayed his visa and married Safia

Ibrahim, a Sudanese national, who has since become a U.S. citizen.

In 1999, Mr. Mahamat appeared before an asylum officer and submitted an

application prepared by attorney Steven R. Lawrence for asylum, restriction on

removal and protection against torture. The application was based on

Mr. Mahamat’s Gorane ethnicity and his political ties and activities in opposition

to Chadian president Idriss Deby. On October 23, 2002, an Immigration Judge

(IJ) denied the application. The IJ ordered Mr. Mahamat removed to Chad, but

granted him voluntary departure until November 22, 2002. Mr. Mahamat retained

Mr. Lawrence to appeal.

On either November 21 or 22, 2002, Mr. Lawrence deposited a notice of

appeal with United Parcel Service (UPS) for next day delivery to the Board of

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Immigration Appeals (BIA). But because of a shipping delay, the BIA did not

receive the notice until November 26. On January 28, 2003, the BIA dismissed

the appeal as untimely, explaining that the notice was due no later than

November 22, 2002.

Mr. Lawrence then filed a motion to reconsider, stating that he prepared the

notice of appeal on November 21, 2002, and deposited it with UPS on

November 22 for next day delivery. The Department of Homeland Security filed

an opposition to reconsideration, noting that under Mr. Lawrence’s recounting of

events, the notice of appeal would have been untimely even if properly delivered

by UPS. In response, Mr. Lawrence submitted a “Corrected Affidavit,” stating

that he deposited the notice with UPS on November 21, rather than November 22,

as he had originally claimed. Mr. Lawrence further stated that “it was not the

fault of [Mr. Mahamat] for the untimeliness of the filing but that of counsel,” and

that “[Mr. Mahamat] should not be responsible for the clear mistake of counsel.”

Admin. R. at 90. In September 2003, the BIA denied the motion to reconsider,

reasoning that there was “no error of law or fact” in the decision to dismiss the

appeal. Id. at 93.

Mr. Mahamat retained new counsel, Leonor Perretta, who filed a bar

complaint against Mr. Lawrence. Mr. Mahamat executed a supporting affidavit,

stating that in a discussion with Mr. Lawrence in December 2002 or January

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2003, Mr. Lawrence faulted UPS for the notice of appeal’s late delivery and

indicated that he would file a motion to reconsider with the BIA. Mr. Mahamat

contended that Mr. Lawrence rendered ineffective assistance in appealing late.

Next, in November 2003, Ms. Perretta filed with the BIA a “Motion to

Accept Late Filed Appeal or Reinstate Appeal.” Id. at 39. On June 22, 2004, the

BIA construed the motion as seeking reconsideration and denied it, stating that

the motion failed to meet the requirements of Matter of Lozada , 19 I. & N. Dec.

637 (BIA 1988), and that the motion was untimely and number-barred.

Mr. Mahamat retained new counsel and petitioned this court for review.

D ISCUSSION

Mr. Mahamat characterizes his “Motion to Accept Late Filed Appeal or

Reinstate Appeal” as a motion to reopen, rather than a motion for reconsideration,

which, he acknowledges, would be number-barred, see 8 C.F.R. § 1003.2(b)(2)

(stating that “[a] party may file only one motion to reconsider”). Even if we

accept that characterization, 3
we must still deny the petition.

3
A motion to reopen seeks to present evidence that “is material and was not
available and could not have been discovered or presented at the former hearing.”
8 C.F.R. § 1003.2(c)(1); see also 8 U.S.C. § 1229a(c)(7)(B). A motion to
reconsider, on the other hand, is available to raise errors of fact or law committed
by the BIA in its prior decision, and must be supported by pertinent authority.
8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1). In Galvez Pineda v.
Gonzales, 427 F.3d 833, 837 (10th Cir. 2005), we observed that “[t]he appropriate
method of present[ing] [an ineffective assistance claim] is a motion to reopen the
(continued...)

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 The decision to grant or deny a motion to reopen proceedings is within the

BIA’s discretion. 8 C.F.R. § 1003.2(a). We will reverse only if the BIA’s

“decision provides no rational explanation, inexplicably departs from established

policies, is devoid of any reasoning, or contains only summary or conclusory

statements.” Osei v. INS , 305 F.3d 1205, 1208 (10th Cir. 2002) (quotation marks

omitted).

A motion to reopen “must be filed no later than 90 days after the date on

which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2);

see also 8 U.S.C. § 1229a(c)(7)(C)(i). Here, Mr. Mahamat’s motion was filed

over nine months after the BIA rendered its final decision dismissing

Mr. Mahamat’s appeal. 4
Consequently, the motion was untimely.

Mr. Mahamat asserts, however, that the BIA should have equitably tolled

the filing time. “For an untimely claim to receive the benefit of equitable tolling,

. . . an alien must demonstrate not only that the alien’s constitutional right to due

process has been violated by the conduct of counsel, but that the alien has

exercised due diligence in pursuing the case during the period the alien seeks to

toll.” Iavorski v. INS , 232 F.3d 124, 135 (2d Cir. 2000), see also Riley v. INS ,

3
(...continued)
case before the BIA.”
4
A motion for reconsideration does not affect a removal order’s finality.
Stone v. INS, 514 U.S. 386, 405 (1995).

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310 F.3d 1253, 1258 (10th Cir. 2002) (joining the Second and Ninth Circuits in

holding that motions to reopen are subject to equitable tolling). The issue of

equitable tolling must be exhausted through the BIA in order for this court to

reach the issue. See 8 U.S.C. § 1252(d)(1) (providing that “[a] court may review

a final order of removal only if . . . the alien has exhausted all administrative

remedies available to the alien as of right”); Taniguchi v. Schultz , 303 F.3d 950,

955 (9th Cir. 2002) (stating that equitable tolling of the time to reopen is not

available where tolling “was not argued to the BIA nor discussed by the BIA”);

see also Galvez Pineda v. Gonzales , 427 F.3d 833, 837 (10th Cir. 2005)

(observing that a “[f]ailure to exhaust administrative remedies by not first

presenting a claim to the BIA deprives this court of jurisdiction to hear it”).

Nowhere in the “Motion to Accept Late Filed Appeal or Reinstate Appeal,” which

was filed over six months after the deadline for seeking reopening, did

Mr. Mahamat seek a filing extension, ask the BIA to equitably toll the deadline,

or even acknowledge that the motion was late. Because Mr. Mahamat did not

exhaust the equitable tolling issue through the BIA, it was not preserved for our

review, and we lack jurisdiction to consider the issue.

We also lack jurisdiction insofar as Mr. Mahamat argues that the BIA

should have certified his case for review under 8 C.F.R. § 1003.1(c). That

regulation provides:

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 The . . . [BIA] may in any case arising under paragraph (b) of this
section [defining the BIA’s appellate jurisdiction] certify such case
to the [BIA]. The [BIA] in its discretion may review any such case
by certification without regard to the [notice] provisions of § 1003.7
if it determines that the parties have already been given a fair
opportunity to make representations before the [BIA] regarding the
case . . . .

8 C.F.R. § 1003.1(c). “The BIA occasionally avoids an untimeliness problem by

dismissing an untimely appeal and accepting the case on certification . . . .”

Shamsi v. INS , 998 F.2d 761, 762 n.2 (9th Cir. 1993) (discussing § 1003.1(c)’s

predecessor, 8 C.F.R. § 3.1(c)); see also Desta v. Ashcroft , 329 F.3d 1179, 1185

(10th Cir. 2003) (recognizing that certification allows the BIA to review “a ‘case’

that otherwise could not properly be heard”). But Mr. Mahamat does not contend

that he ever asked the BIA for certification. See Galvez Pineda , 427 F.3d at 837

(discussing exhaustion requirement). Nor does he suggest any standards to judge

the BIA’s exercise of discretion. See Heckler v. Chaney , 470 U.S. 821, 830

(1985) (“[I]f no judicially manageable standards are available for judging how

and when an agency should exercise its discretion, then it is impossible to

evaluate agency action for abuse of discretion.” (quotation marks omitted)); see,

e.g. , Infanzon v. Ashcroft , 386 F.3d 1359, 1361 (10th Cir. 2004) (holding that this

court lacked jurisdiction to consider whether the BIA should have sua sponte

reopened proceedings under 8 C.F.R. § 1003.2(a), “because there are no standards

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by which to judge the agency’s exercise of discretion”). Consequently, the

certification issue is beyond review.

C ONCLUSION

The BIA correctly decided that Mr. Mahamat’s “Motion to Accept Late

Filed Appeal or Reinstate Appeal” was untimely. As such, we need not decide

whether the BIA abused its discretion in finding the motion number-barred or

non-compliant with Matter of Lozada , 19 I. & N. Dec. 637 (BIA 1988).

The petition for review is DENIED. The Attorney General’s motion for

summary denial is also DENIED. See 10th Cir. R. 27.2(A)(1).

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