Murillo-Robles v. Lynch , 839 F.3d 88 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-2568
DANIEL EMERSON MURILLO-ROBLES,
Petitioner,
v.
LORETTA E. LYNCH,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Selya and Kayatta, Circuit Judges.
Carlos E. Estrada, with whom Estrada Law Office was on brief,
for petitioner.
Sabatino F. Leo, Trial Attorney, Office of Immigration
Litigation, United States Department of Justice, with whom
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, United States Department of Justice, and Anthony
P. Nicastro, Assistant Director, Office of Immigration Litigation,
were on brief, for respondent.
October 7, 2016
SELYA, Circuit Judge. Although the Board of Immigration
Appeals (BIA) has broad discretion in the disposition of motions
to reopen, broad discretion is not the same as unfettered
discretion. This case, which arises out of an in absentia removal
order against a youthful alien who was ill-served by not one but
two lawyers, illustrates that verity. After careful
consideration, we conclude that the BIA abused its discretion when
it found that the circumstances attendant to entry of the removal
order were not exceptional. Accordingly, we grant the petition
for review, reverse the BIA's denial of the motion to reopen, and
remand with instructions to set aside the in absentia removal order
and reopen the petitioner's removal proceedings.
I. BACKGROUND
The petitioner, Daniel Emerson Murillo-Robles, is a
Peruvian national. He became a lawful conditional resident of the
United States in 2001 at age 11. In October of 2003, his mother
and his stepfather (a United States citizen) jointly filed an I-
751 petition with United States Citizenship and Immigration
Services (USCIS), seeking to make the petitioner's residency
unconditional. USCIS denied this petition in November of 2006,
citing the failure on the part of the attorney representing the
family to respond in a timely fashion to its request for additional
information.
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The government proceeded to initiate removal proceedings
against the petitioner in February of 2007. The petitioner
conceded removability and sought review of the denial of the
original I-751 petition. He received a series of continuances,
partly because his mother and stepfather filed a second I-751
petition in 2009. That petition was denied by USCIS after the
attorney who prepared it failed adequately to explain the delay in
filing. The attorney was subsequently disbarred, and the
petitioner's family hired a new attorney in the spring of 2011.
Eventually, a merits hearing was scheduled for April 30,
2012 at 8:00 a.m. That day, the petitioner did not appear at 8:00
a.m. but, rather, arrived at approximately 8:30 a.m., thinking
that his hearing was set for 9:00 a.m. This interval, though
brief, proved consequential: at 8:19 a.m., the immigration judge
(IJ) entered an order of removal in absentia. When the IJ entered
the order, he told the petitioner's lawyer that if she moved to
reopen the case when the petitioner arrived, he would consider the
motion. The petitioner appeared minutes later, and his family
agreed to pay the lawyer to file a motion to reopen. Nevertheless,
the lawyer did not file the motion (even though she took the
money). Shortly thereafter, the lawyer's license to practice law
was suspended for neglecting a number of immigration cases.
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The petitioner retained yet a third attorney and moved
to reopen his immigration case in July of 2015.1 He explained that
his failure to arrive punctually at his April 2012 hearing stemmed
from his mistaken assumption that this hearing — like many earlier
immigration court hearings that he had attended on time — would
commence at 9:00 a.m. He also described the myriad ways in which
his first two attorneys had provided ineffective assistance of
counsel and argued that this deficient representation had
prevented him from attaining legal permanent resident status.
The IJ agreed that the petitioner had received
ineffective assistance of counsel and, thus, excused the untimely
filing of his motion to reopen. Withal, the IJ found that the
petitioner had not carried his burden of showing that exceptional
circumstances surrounded his failure to appear. Noting that the
hearing notice "clearly and unambiguously" showed an 8:00 a.m.
start time, the IJ concluded that the petitioner's failure to be
present at the appointed time could not be attributed to his
lawyers' inadequacies. Nor did the IJ perceive any sufficient
reason for exercising his discretionary authority to reopen the
case sua sponte. See 8 C.F.R. § 1003.23(b).
1 This period of delay resulted, in part, from the
petitioner's involvement in a drunk-driving case and his
subsequent incarceration. Both sides agree that this conviction
does not bear directly on his immigration status.
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In due course, the BIA affirmed the IJ's decision. This
timely petition for judicial review followed. See 8 U.S.C.
§ 1252(a)(1), (b)(1).
II. ANALYSIS
In the immigration context, judicial review normally
focuses on the decision of the BIA, which constitutes the agency's
final order. See Wan v. Holder, 776 F.3d 52, 55-56 (1st Cir.
2015). But where, as here, the BIA merely adds its gloss to the
IJ's findings and conclusions, we treat the two decisions as one.
See id.
We review denials of motions to reopen for abuse of
discretion. See id. The BIA's discretion is broad, but not
limitless. See Carter v. INS, 90 F.3d 14, 17 (1st Cir. 1996).
The BIA can abuse its discretion in a variety of ways, such as "by
neglecting to consider a significant factor that appropriately
bears on the discretionary decision, by attaching weight to a
factor that does not appropriately bear on the decision, or by
assaying all the proper factors and no improper ones, but
nonetheless making a clear judgmental error in weighing them."
Henry v. INS, 74 F.3d 1, 4 (1st Cir. 1996); cf. White v. INS, 17
F.3d 475, 479 (1st Cir. 1994) (stating that "[i]mproper
consideration of favorable or unfavorable factors by the BIA may
sometimes constitute abuse of discretion").
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The Immigration and Nationality Act (INA) provides that
when an alien fails to appear at a removal hearing, he "shall be
ordered removed in absentia" if the government can establish that
he had due notice of the hearing and was otherwise removable. 8
U.S.C. § 1229a(b)(5)(A). An alien may seek rescission of such an
order by moving to reopen within 180 days and demonstrating "that
the failure to appear was because of exceptional circumstances."
Id. § 1229a(b)(5)(C)(i); see 8 C.F.R. § 1003.23(b)(4)(iii)(A).
The INA offers some illustrations, explaining that exceptional
circumstances might include "battery or extreme cruelty to the
alien," serious illness, the death or serious illness of a family
member, or other similar circumstances beyond the alien's control.
8 U.S.C. § 1229a(e)(1).
If both the IJ and the BIA deny a motion to reopen an in
absentia removal order, the alien may seek judicial review in the
court of appeals. See id. § 1252(b)(2), (d)(1). That review is
limited to the validity of the notice provided to the alien, the
reasons for the alien's failure to appear, and the alien's
removability. See id. § 1229a(b)(5)(D); see also Herbert v.
Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003). Here, the petitioner
does not challenge the applicability of either the first or the
third of these elements. Our inquiry, then, concentrates on the
existence vel non of exceptional circumstances attendant to the
petitioner's failure to appear.
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To the extent that either the agency or the court is
required to decide whether exceptional circumstances exist, the
decisionmaker must take into account the totality of the
circumstances. See Kaweesa v. Gonzales, 450 F.3d 62, 68-69 (1st
Cir. 2006); Herbert, 325 F.3d at 72. Such an assessment may
encompass a wide variety of pertinent considerations, including
"the strength of the alien's underlying claim, the harm the alien
would suffer if the motion to reopen is denied, and the
inconvenience the government would suffer if the motion is
granted." Kaweesa, 450 F.3d at 69. This emphasis on the totality
of the circumstances is "grounded in due process considerations"
and the need to "ensure that an alien is not deprived of a
meaningful opportunity to be heard." Id. at 69-70.
Against this backdrop, we turn to the merits of the
petition for review that is now before us. We hold that the BIA
abused its discretion when it failed to consider the totality of
the circumstances and, in particular, failed to give due weight to
two salient factors that counseled in favor of reopening. In the
pages that follow, we explain our reasoning.
To begin, the BIA — and for purposes of the ensuing
"exceptional circumstances" analysis, we use the term "the BIA" as
a shorthand for both the BIA and the IJ, collectively — took too
narrow a view of the adverse effect of the petitioner's sub-par
representation. While the BIA found that poor lawyering excused
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the late filing of the motion to reopen, it stopped there. In
doing so, it failed to give due weight to the role that counsel's
ineptitude played in converting the petitioner's minor tardiness
into an intractable in absentia removal order.
It is common ground that "[i]neffective assistance of
counsel during removal proceedings may comprise an exceptional
circumstance" sufficient to warrant reopening. Vaz Dos Reis v.
Holder, 606 F.3d 1, 4 (1st Cir. 2010); see Saakian v. INS, 252
F.3d 21, 25 (1st Cir. 2001). In this instance, counsel's
ineffectiveness was apparent: she not only neglected to inform the
IJ that her client was likely en route to the hearing but also
failed to move to reopen or otherwise alert the IJ to the
petitioner's arrival (despite the IJ's earlier invitation that she
do so). Had the attorney done her job in anything close to a
competent manner, the odds are good that the case would have been
reopened then and there. Cf. Jerezano v. INS, 169 F.3d 613, 615
(9th Cir. 1999) ("It is accepted practice for courts to give tardy
litigants a second chance by putting them at the end of the
calendar, and it seems both harsh and unrealistic to treat as a
nonappearance a litigant's failure to be in the courtroom at the
precise moment his case is called."). This was unquestionably
ineffective assistance of counsel. See Saakian, 252 F.3d at 24-
25 (explaining that in a removal proceeding, ineffective
assistance of counsel occurs when counsel's deficiencies render
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the proceeding so fundamentally unfair that the alien is unable
reasonably to present his case and is prejudiced as a result).
The second major flaw in the BIA's analysis is its
failure to give proper weight to the minor extent of the
petitioner's tardiness. Though some of our sister circuits have
held that minor tardiness is not a failure to appear at all, see,
e.g., Perez v. Mukasey, 516 F.3d 770, 774-75 (9th Cir. 2008); Abu
Hasirah v. U.S. Dep't of Homeland Sec., 478 F.3d 474, 478 (2d Cir.
2007) (per curiam); Cabrera-Perez v. Gonzales, 456 F.3d 109, 116-
17 (3d Cir. 2006) (per curiam); Alarcon-Chavez v. Gonzales, 403
F.3d 343, 346 (5th Cir. 2005), we need not go that far. Suffice
it to say that all absences are not to be treated equally. In the
circumstances of this case, the BIA ought to have differentiated
between a total failure to appear and a tardy appearance — and it
did not do so. This is especially important here because (as a
general rule) minor tardiness should be excused more readily than
more flagrant absences. See Jerezano, 169 F.3d at 615; cf.
Herbert, 325 F.3d at 72 (expressing skepticism about whether minor
tardiness should be treated as a "true failure to appear" (internal
citation omitted)). We hold, therefore, that the BIA acted
unreasonably when it gave no weight at all to the minor extent of
the petitioner's tardiness. We add, moreover, that the BIA's
omission is all the more stark given the petitioner's unbroken
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record of timely appearances at a lengthy series of earlier
immigration hearings.
The combined effect of the BIA's failure to give due
weight to these two salient factors is magnified by the presence
of other mitigating considerations. For instance, counsel's
lackluster performance at the removal hearing was only the latest
act of lawyerly incompetence visited upon the petitioner. Had the
petitioner received effective assistance of counsel from the very
beginning, he quite probably would have attained legal permanent
resident status long before April of 2012. His first attorney
bungled not one but two I-751 petitions. Then — when the
petitioner's second attorney learned that the government might
nonetheless be willing to exercise prosecutorial discretion in the
petitioner's case — she neglected to follow up in any meaningful
way: she did not file a new I-751 petition, did not request
administrative closure, and did not so much as file a motion
formally entreating the government to exercise prosecutorial
discretion.
The short of it is that the petitioner's previous
attorneys pulled the rug out from under him time and again, and
this fact ought to have weighed heavily in the totality of the
circumstances analysis. See Kaweesa, 450 F.3d at 69 & n.12
(emphasizing that the core of the analysis is the meaningful
opportunity to be heard, which includes consideration of the
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effectiveness of counsel's assistance); see also Vaz Dos Reis, 606
F.3d at 4.
What is more, the BIA should consider "the strength of
the alien's underlying claim" when it inquires into the existence
of exceptional circumstances and applies the totality of the
circumstances rubric. Kaweesa, 450 F.3d at 69. Here — even though
the petitioner has had some trouble with the law, see supra note
1 — this factor counsels in favor of reopening. Had his previous
attorneys provided adequate assistance, the petitioner would have
been a promising candidate for legal permanent resident status: he
entered the United States legally more than 15 years ago at the
age of nine and has never left; he completed high school and
vocational school here; he attended a community college; his mother
has been married for some time to an American citizen; and his
younger brother already has received Deferred Action for Childhood
Arrivals (DACA) status.2
2 Aliens with DACA status have been granted temporary relief
from deportation to work or study in the United States. The
program is available to aliens who, among other things, entered
the United States before a particular age, have continuously
resided in the United States, and are either in school, have
graduated from school, or are United States military veterans.
Memorandum from Janet Napolitano, Sec'y, Dep't of Homeland Sec.,
to David Aguilar, Acting Comm'r, U.S. Customs & Border Prot., et
al. 1 (June 15, 2012),
https://www.ice.gov/doclib/about/offices/ero/pdf/s1-certain-
young-people.pdf (last visited Sept. 29, 2016).
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Finally, the factors that ordinarily militate against
allowing motions to reopen are at a low ebb in this case. For
example, we have stated that the exceptional circumstances
standard is intended to remove the temptation to skip a hearing
simply to delay imminent deportation. See Herbert, 325 F.3d at
71. Granting the petitioner's motion to reopen, though, would
have done no violence to this principle: the record does not
support an inference that the petitioner's late arrival at the
hearing was motivated in any way by a desire to postpone an
adjudication of his case. And we have been more forgiving of minor
delays where, as here, nothing in the petitioner's record reflects
any intent to avoid a hearing or delay removal. See Kaweesa, 450
F.3d at 71; Herbert, 325 F.3d at 72 n.1.
To sum up, the BIA neglected to give due weight to the
role of the petitioner's lawyer in failing promptly to ameliorate
the situation caused by the petitioner's late arrival at his
removal hearing. This bevue was compounded by the BIA's failure
to distinguish the petitioner's minor and uncharacteristic
tardiness from a total boycott of — or an attempt to delay — a
scheduled hearing and its concomitant failure to give due weight
to the extremely modest extent of the petitioner's tardiness.
These failures, taken together, constituted exceptional
circumstances sufficient to ground the petitioner's motion. And
in all events, the totality of the circumstances was favorable to
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reopening. We thus hold that the BIA abused its discretion by
finding that the circumstances that prevented the petitioner from
having his day in court were unexceptional and by denying the
motion to reopen. The petitioner is entitled to present his case
at a merits hearing.3
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we grant the petition for judicial review, reverse the BIA's denial
of the motion to reopen, and remand with instructions to set aside
the in absentia removal order and reopen the petitioner's removal
proceedings.
So ordered.
3
We do not have jurisdiction over — and therefore do not
address — the petitioner's alternative claim that the BIA abused
its discretion by failing to reopen his case sua sponte. See
Charuc v. Holder, 737 F.3d 113, 115 (1st Cir. 2013) (explaining
that it is "settled beyond hope of contradiction that the decision
whether to exercise this sua sponte authority is committed to the
unbridled discretion of the BIA" (internal citation omitted)).
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