United States Court of Appeals
For the First Circuit
No. 05-1961
ANDLEY BOBBY BOAKAI, a/k/a JOE TAIVO LAESOLEE,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, and Howard, Circuit Judges.
David J. Apfel, with whom Gina M. Atwood and Goodwin
Procter LLP were on brief, for petitioner.
David M. McConnell, with whom Michael J. Sullivan, United
States Attorney, and Michael Sady, Assistant United States
Attorney, were on brief, for respondent.
April 27, 2006
LYNCH, Circuit Judge. On February 27, 2002, the Board of
Immigration Appeals (BIA) ordered that Andley Bobby Boakai, a
native and citizen of Liberia, be removed from this country because
he had not met his burden to show he was eligible for relief under
the Convention Against Torture (CAT). More than a year later,
Boakai filed with the BIA an untimely motion to reopen his case on
the ground that he had been provided ineffective assistance of
counsel. The BIA rejected the motion to reopen as untimely filed
without reaching the merits of the ineffective assistance claim.
Boakai now seeks review of the BIA's orders denying CAT relief and
reopening. He argues that we must order the BIA to consider the
motion to reopen on the merits, and that this consideration will
compel a finding of ineffective assistance, in turn requiring the
BIA to reopen the case and perhaps ultimately to grant him CAT
relief.
Concluding that we lack jurisdiction to review any of the
issues Boakai has presented, we deny the petition for review.
I.
Boakai entered the United States on a visitor's visa in
1990 and later was granted Temporary Protected Status, see 8 U.S.C.
§ 1254a, because of unstable conditions in Liberia. In May 1996,
more than a year after his Temporary Protected Status expired,
Boakai was convicted of assault and battery with a dangerous weapon
and armed assault with intent to murder; he was sentenced to seven
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to ten years' imprisonment. Removal proceedings were commenced
against him on the ground that he was an alien convicted of an
aggravated felony. See id. § 1101(a)(43)(F); id.
§ 1227(a)(2)(A)(iii).
By virtue of his conviction and sentence, Boakai was
statutorily ineligible for asylum and withholding of removal. See
id. § 1158(b)(2)(A)(ii) and (B)(i) (rendering aggravated felons
ineligible for asylum); id. § 1231(b)(3)(B) (rendering aggravated
felons sentenced to at least five years' imprisonment ineligible
for withholding of removal). He conceded removability and applied
only for relief under the CAT. After hearing testimony, an
Immigration Judge (IJ) concluded that Boakai had met his burden for
CAT protection.
For reasons not relevant here, the BIA remanded the case
to the IJ. The IJ found for a second time that Boakai had met his
burden for CAT protection, and the government appealed. Boakai had
notice of the government's appeal to the BIA and filed a pro se
brief. His former counsel did not file a brief.
In the February 27, 2002 order, the BIA vacated the grant
of CAT relief and ordered Boakai removed. The BIA found that
Boakai had failed to meet his burden under the CAT, in part because
the U.S. State Department's 1998 Country Profile for Liberia
"indicate[d] that supporters of and office holders in the former
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[Liberian] regime can generally now return to Liberia without
harm."
Boakai did not then file a petition in this court for
review of the February 27, 2002 BIA removal order. Nor did he file
a motion to reopen with the BIA within the ninety days allowed.
See 8 C.F.R. § 1003.2(c)(2). Rather, he filed a pro se habeas
corpus action in the district court; that court appointed present
counsel on October 8, 2002.
On April 16, 2003, more than six months after present
counsel's appointment and more than a year after the BIA removal
order, Boakai, through counsel, filed a motion to reopen before the
BIA. The motion argued that the CAT issue should be reopened
because Boakai had been deprived of effective assistance of counsel
in that his attorney did not file a brief with the BIA seeking to
uphold the IJ's order.1 Boakai's motion to reopen did not
acknowledge that it was filed late, nor did it present any argument
that the lateness should be excused, thus likely waiving the
argument before this court. See Xu v. Gonzales, 424 F.3d 45, 48
(1st Cir. 2005).
In its August 8, 2003 order denying the motion to reopen,
the BIA noted that "[t]he respondent does not even acknowledge that
the motion is untimely." It nonetheless assumed, in Boakai's
1
The ineffective assistance claim, of course, was unrelated
to the IJ proceedings; Boakai won there. It was based only on
failure of counsel to defend that victory on appeal to the BIA.
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favor, that he was relying on equitable tolling to excuse his
missing a filing deadline. The BIA correctly noted that if the
equitable tolling doctrine is available at all,2 the petitioner
must first show that he has acted with due diligence. Jobe v. INS,
238 F.3d 96, 100 (1st Cir. 2001) (en banc). The BIA held:
Such due diligence is not present here. The
respondent acknowledges that he received
notice of our earlier decision in March, 2002.
Current counsel was appointed to represent the
respondent in October, 2002. However, the
pending motion was not filed until April,
2003. There is no basis for abrogating the
motions deadline here. The pending motion is,
therefore, denied.
(internal citations omitted). The BIA thus never reached the
merits of the ineffective assistance of counsel issue.3
2
This court has not yet decided whether the BIA has the power
to excuse late filing on the basis of equitable tolling. See Jobe
v. INS, 238 F.3d 96, 100 (1st Cir. 2001) (en banc); see also Chen
v. Gonzales, 415 F.3d 151, 154 n.3 (1st Cir. 2005) (noting the
issue remains unresolved).
3
In his briefs to this court, but not to the BIA, Boakai
attempts to justify the delay in part on the basis that it was
necessary in order to prepare and file an ineffective assistance
claim pursuant to In re Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988).
It is noteworthy that courts have found that the BIA did not abuse
its discretion in finding no due diligence in similar time frames.
In Galvez Piñeda v. Gonzales, 427 F.3d 833 (10th Cir. 2005), for
example, new counsel filed a motion to reopen eight months after
taking over, and the BIA rejected an equitable tolling argument.
Id. at 839. Counsel argued on appeal that the delay was necessary
to fulfill the Lozada requirements; the court rejected that
argument, stating that "90 days [after new counsel's appointment]
would have been more than adequate to comply" with Lozada. Id.
See also Dodaj v. Ashcroft, 109 F. App'x 763, 766 (6th Cir. 2004)
(unpublished opinion) (equitable tolling not warranted where new
counsel took five months to file motion to reopen because he was
investigating ineffective assistance of counsel claim).
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In the wake of the BIA's decision on the motion to
reopen, Boakai filed another habeas petition in the district court.
That petition was transferred to this court pursuant to the REAL ID
Act of 2005, Pub. L. No. 109-13, Div. B, § 106(c), 119 Stat. 231,
311 (2005) (codified at 8 U.S.C. § 1252 note) (requiring district
courts to transfer existing 28 U.S.C. § 2241 habeas cases involving
challenges to "final administrative order[s] of removal" to the
court of appeals, which is to "treat the transferred case as if it
had been filed pursuant to a petition for review"). In his briefs
to this court, Boakai argued that the purported ineffective
assistance of counsel requires that this court order the BIA to
reopen proceedings; he also said the BIA abused its discretion when
it failed to consider his untimely motion to reopen on the merits.
Boakai focused on the latter claim at oral argument.
II.
Petitioner's first obligation is to establish that this
court has jurisdiction. The court also must itself address the
question of its own jurisdiction, even when petitioner fails to
address the point adequately.4 Global NAPs, Inc. v. Mass. Dep't of
Telecomms. & Energy, 427 F.3d 34, 41 (1st Cir. 2005).
4
Boakai's initial brief to this court ignored the obvious
jurisdictional difficulties present in his case, simply asserted
there was jurisdiction under the REAL ID Act, and then concentrated
on the merits of his unexhausted ineffective assistance claim.
Little is to be gained and much to be lost by a "masquerade
ignor[ing] the central question" in a case. Shelby v.
Superformance Int'l, Inc., 435 F.3d 42, 43 (1st Cir. 2006).
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Under pre-REAL ID Act law, we lacked "jurisdiction to
review any final order of removal against an alien who is removable
by reason of having committed" an aggravated felony. 8 U.S.C.
§ 1252(a)(2)(C) (2000). Under that regime, we clearly would have
lacked the power to review both the initial BIA order denying CAT
relief and the BIA's denial of the motion to reopen.5 The REAL ID
Act altered the landscape, granting limited jurisdiction to courts
of appeals over petitions for review from aggravated felons who
have been denied CAT relief. Under the new provision, the courts
of appeals have jurisdiction if such petitions raise
"constitutional claims or questions of law." See REAL ID Act
§ 106(a)(1)(A)(iii), 119 Stat. at 310 (codified at 8 U.S.C. §
1252(a)(2)(D)); see also Enwonwu v. Gonzales, 438 F.3d 22, 33 (1st
Cir. 2006). On these facts, however, that limited jurisdictional
grant does not help Boakai.
A. Review of Denial of Motion to Reopen
The narrow issue before us is whether, assuming arguendo
that equitable tolling is available, Boakai's challenge to the
BIA's decision not to grant such tolling presents a "question of
5
A denial of a motion to reopen is also a final order. See
Baez v. INS, 41 F.3d 19, 21 (1st Cir. 1994) (noting that the BIA's
denial of a motion to reopen a deportation proceeding is a
judicially reviewable final order) (citing Giova v. Rosenberg, 379
U.S. 18, 18 (1964) (per curiam)); see also Jupiter v. Ashcroft, 396
F.3d 487, 488, 490-91 (1st Cir. 2005) (referring to the BIA's
denial of a motion to reopen as a "final order" and treating it as
such for purposes of jurisdictional limitations imposed by 8 U.S.C.
§ 1252).
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law" within the meaning of the REAL ID Act. The answer is plainly
no. Boakai does not question the legal standard for equitable
tolling. The only issue he raises before us is one of fact. See
Niehoff v. Maynard, 299 F.3d 41, 47 (1st Cir. 2002) (holding that
equitable tolling determinations involve a mixed question of law
and fact, but that to the extent the district court's decision as
to tolling "hinges on factual determinations," appellate review
proceeds as it would for a pure question of fact). The BIA relied
on a factual determination that Boakai had not exercised due
diligence, and Boakai simply disagrees, arguing that he did in fact
exercise due diligence. We have no jurisdiction to review this
sort of challenge to a denial of a motion to reopen.6
B. Review of Denial of CAT Claim
There is also no jurisdiction to review Boakai's
challenge to the BIA's order denying relief under the CAT. That is
because Boakai's challenge to the denial of CAT relief rests wholly
on his ineffective assistance claim. The ineffective assistance
claim, because it was not timely presented, was never ruled on by
the BIA, and so Boakai has not exhausted the issue. Cf. Hernandez
v. Reno, 238 F.3d 50, 54-55 (1st Cir. 2001). Both before and after
the REAL ID Act, this court lacks jurisdiction over a claim if the
6
The government urges that we adopt a rule that no question
committed to the BIA's discretion may ever constitute a "question
of law" within the REAL ID Act. There is no need for such a broad
ruling. See Saint Fort v. Ashcroft, 329 F.3d 191, 201 (1st Cir.
2003).
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alien has not exhausted all administrative remedies as to that
claim.7 8 U.S.C. § 1252(d)(1). The Tenth Circuit, on nearly
identical facts, also held that there was no jurisdiction. Galvez
Piñeda v. Gonzales, 427 F.3d 833, 837-38 (10th Cir. 2005) (refusing
to consider an ineffective assistance of counsel claim after an
untimely attempt to raise the issue with the BIA because "untimely
filings with administrative agencies do not constitute exhaustion
of administrative remedies").
Because the ineffective assistance claim is not before
us, as to the CAT issue we are presented with no "constitutional
claim[]." 8 U.S.C. § 1252(a)(2)(D). At oral argument, Boakai
correctly conceded this point. Indeed, the very purpose of this
petition is to force the BIA to address an ineffective assistance
of counsel claim, which he says is of constitutional dimension, in
the hopes it will ultimately lead the BIA to reopen proceedings and
subsequently change its views on CAT relief.
Finally, to the extent Boakai is attempting an
independent argument that the BIA was wrong in rejecting the CAT
claim, we see no question of law presented. This case is not like
Enwonwu, where a question of law was presented only because the
BIA's order denying CAT relief was so insufficiently reasoned as to
7
In Hernandez, the court noted that where a petitioner fails
to timely pursue administrative remedies, the defect might be
better characterized as waiver or forfeiture, instead of failure to
exhaust. 238 F.3d at 54. However it is characterized, the outcome
is the same: the issue is not before us.
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leave us uncertain of its basis and so preclude meaningful judicial
review. See 438 F.3d at 35.
III.
Lest Boakai draw from this dismissal for lack of
jurisdiction the erroneous conclusion that he is being removed
because of the actions or inactions of his lawyers, we add these
comments. Boakai has received, at the least, zealous advocacy. If
we had jurisdiction to ask whether the BIA abused its discretion in
not reopening his case, the answer clearly would be no for a number
of reasons. The ineffective assistance claim is itself dubious, at
best, and does not present a clear case of prejudice.8 See Zeng v.
Gonzales, 436 F.3d 26, 31 n.8 (1st Cir. 2006) ("To prevail on the
merits of an ineffective assistance claim, an alien must show
prejudice to his case . . . ."). Further, the BIA decision denying
CAT relief rested on the administrative record before it,
regardless of whether it received a brief from counsel or the pro
se brief Boakai filed. We see nothing on the record that would
have compelled the BIA to conclude that Boakai had met his burden
8
For example, former counsel's position is that he was
discharged by Boakai and instructed not to file an appeal, and that
when Boakai so instructed him, he went so far as to call Boakai's
mother to explain why the decision to proceed pro se was
unreasonable. This position is supported by the fact that when
Boakai requested an extension of time to file a pro se brief with
the BIA, he made no mention of any abandonment by former counsel,
nor did he ask for time to seek new counsel. Further, it was the
lawyer, now said to be ineffective, who was successful before the
IJ. Finally, Boakai did file a pro se brief before the BIA largely
repeating what his lawyer had said.
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on CAT relief. That is especially so here where the BIA noted,
inter alia, that even assuming the credibility of Boakai's
witnesses, changed country conditions in Liberia meant that it was
unlikely Boakai would be subject to torture if he returned.
The Notice to Appear was issued to Boakai in November
1997; it is now over eight years later, though the courts have
moved promptly. The petition is denied.
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