Hakhinyan v. Holder, Jr. , 343 F. App'x 367 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
September 3, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
ARSEN HAKHINYAN,
Petitioner,
v. No. 08-9586
(Petition for Review)
ERIC H. HOLDER, JR., *
United States Attorney General,
Respondent.
ORDER AND JUDGMENT **
Before BRISCOE, HOLLOWAY, and EBEL, Circuit Judges.
Petitioner Arsen Hakhinyan seeks review of a decision by the Board of
Immigration Appeals (BIA) denying his untimely motion to reopen and/or reissue
a removal order based on ineffective assistance of counsel. Mr. Hakhinyan
asserts that the BIA improperly declined to apply equitable tolling to his motion
*
Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for
Michael B. Mukasey as the respondent in this appeal.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and erroneously found that he failed to exercise due diligence in pursuing it. We
deny the petition for review.
I. Background
Mr. Hakhinyan, a native and citizen of Armenia, entered the United States
on or about July 1, 2000, with authorization to stay for one year. Shortly before
that year elapsed, Mr. Hakhinyan applied for asylum which was apparently denied
because, on December 11, 2001, the INS issued a Notice to Appear charging
Mr. Hakhinyan with removability for having overstayed his visa. At a hearing
before an immigration judge (IJ), Mr. Hakhinyan conceded he was removable, but
renewed his request for asylum and sought withholding of removal, protection
under the Convention Against Torture, and voluntary departure.
Those applications were denied, but Mr. Hakhinyan was granted the
privilege of voluntary departure. Mr. Hakhinyan, through his attorney, filed a
timely appeal to the BIA, indicating that he would not file a brief on appeal. On
April 30, 2004, the BIA affirmed the removal order. No appeal was taken to this
court.
On February 6, 2008, almost four years after the BIA’s final decision,
Mr. Hakhinyan, proceeding pro se, filed with the BIA a motion to reopen removal
proceedings and to reissue its prior decision (hereafter “motion to reopen”),
arguing that his prior attorney had been ineffective in prosecuting his
administrative appeal by failing to submit a brief to the BIA. On October 6,
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2008, the BIA denied the motion to reopen finding it untimely and refusing to toll
the ninety-day filing period. See 8 C.F.R. § 1003.2(c)(2). In doing so, the BIA
found that Mr. Hakhinyan failed to act with due diligence in filing the motion.
The BIA noted that, while Mr. Hakhinyan substantially complied with the
requirements for bringing ineffective assistance of counsel claims as set out in
Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), 1 nothing in his personal
affidavit specified that he had contracted with counsel to file a brief on appeal. In
response to Mr. Hakhinyan’s contention that his attorney failed to inform him of
the BIA’s denial of his appeal, thus preventing him from filing a timely motion to
reopen or an appeal to this court, the BIA noted that, approximately forty days
after the BIA’s decision denying his appeal, Mr. Hakhinyan received a “bag and
baggage” letter. 2 That letter put Mr. Hakhinyan on notice that his appeal had
been denied. The BIA observed, however, that “[d]espite learning of the Board’s
dismissal at that time, the respondent has failed to show the requisite due
1
While this matter was pending, then-Attorney General, Michael Mukasey,
partially overruled the decision in Lozada. See Matter of Compean, 24 I. & N.
Dec. 710 (A. G. 2009) (Compean I). Compean I, however, applied only to claims
raised after its publication date of January 7, 2009. Even if Compean I had not
recently been vacated by Attorney General Holder, see Matter of Compean,
25 I. & N. Dec. 1 (A. G. 2009), Lozada would have still applied to
Mr. Hakhinyan’s ineffective assistance claim.
2
A “bag and baggage” letter “issues once the government determines that
there is no further administrative relief available to an alien who is subject to an
order of removal, and instructs the alien to appear at a specified location and time
for removal.” Singh v. Gonzales, 494 F.3d 1170, 1172 n.3 (9th Cir. 2007).
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diligence to toll the nearly 4 years’ delay in filing his motion. . . . Specifically,
knowing he had an outstanding ‘bag and baggage’ letter, instead of reporting to
immigration authorities as he was required to do, he moved to California, and
then failed to take action to resolve his immigration status in the nearly 4 years
prior to filing the instant motion.” Admin. R. at 2-3. The BIA similarly denied
Mr. Hakhinyan’s motion to reissue its prior decision, in part, because of his
failure to establish due diligence in filing the claim. Id. at 3. Mr. Hakhinyan now
challenges the BIA’s denial of his motion to reopen.
II. Appellate Jurisdiction
The BIA decision denying Mr. Hakhinyan’s motion to reopen was issued on
October 6, 2008. The Immigration and Nationality Act requires that
Mr. Hakhinyan’s petition for review be filed “not later than 30 days after the date
of the final order of removal.” 8 U.S.C. § 1252(b)(1). The thirty-day time limit
is a “mandatory and jurisdictional” prerequisite. Nahatchevska v. Ashcroft,
317 F.3d 1226, 1227 (10th Cir. 2003) (quotation omitted). Mr. Hakhinyan’s
petition for review was filed in this court on December 17, 2008, well beyond the
thirty-day time limit. Respondent has filed a motion to dismiss for lack of
jurisdiction based on this late filing. For the reasons explained below, we deny
that motion and proceed to the merits.
On November 5, 2008, within the time for perfecting an appeal, this court
received a cover letter and pro se petition for review from Mr. Hakhinyan. While
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Mr. Hakhinyan’s cover letter was addressed to this court, the caption on his
petition for review identified the Eleventh Circuit as the court being appealed to,
and the petition incorrectly stated on the first page that the initial proceedings had
been conducted before an immigration judge in Atlanta, Georgia, making
jurisdiction appropriate only in the Eleventh Circuit. Our clerk’s office,
therefore, transferred the petition to the Eleventh Circuit. The Eleventh Circuit
received the transferred petition on November 10, 2008, and, on January 7, 2009,
dismissed it for lack of jurisdiction, reasoning that by November 10, the petition
was untimely. Alternatively, and contrary to the statement in the petition, the
Eleventh Circuit realized that this court is the proper venue for review because
the immigration hearing had actually been conducted in Denver, Colorado. In the
meantime, Mr. Hakhinyan filed his “motion to admit his timely petition for
review and to assert jurisdiction” with this court. That motion was filed on
December 17, 2008.
We agree with respondent that the December 17, 2008 filing was untimely.
It is our obligation, however, to administer the business of this court fairly and in
the interest of justice. We, therefore, exercise our discretion to assert jurisdiction
over the petition for review timely “received” in this court on November 5, 2008,
and then transferred to the Eleventh Circuit. The original petition was filed on
November 5, 2008, within the statutory time, and in the Tenth Circuit, the correct
court. We find support for this solution in the transfer statute, where even a
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misfiled petition will carry with it, to the proper court upon transfer, the filing
date upon which it was actually filed, albeit in the wrong court.
28 U.S.C. § 1631 (“[T]he action or appeal shall proceed as if it had been filed in
or noticed for the court to which it is transferred on the date upon which it was
actually filed in or noticed for the court from which it is transferred.”).
We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the BIA’s
discretionary denial of the motion to reopen because Mr. Hakhinyan’s petition for
review, based on a claim of ineffective assistance of counsel, raises
“constitutional claims and legal questions.” Schroeck v. Gonzales, 429 F.3d 947,
951 (10th Cir. 2005); see also Omar v. Mukasey, 517 F.3d 647, 650 (2d Cir.
2008) (holding court of appeals has jurisdiction to review claim of ineffective
assistance of counsel).
We review the BIA’s decision to deny the motion to reopen for an abuse of
discretion. Galvez Piñeda v. Gonzales, 427 F.3d 833, 838 (10th Cir. 2005). “The
BIA abuses its discretion when its decision provides no rational explanation,
inexplicably departs from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements.” Id. (quotation omitted).
“[T]here is no abuse of discretion when . . . [the BIA’s] rationale is clear, there is
no departure from established policies, and its statements are a correct
interpretation of the law.” Id. (quotation omitted).
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III. Discussion
Mr. Hakhinyan argues that his motion to reopen should have been
considered timely because it was filed within ninety days of discovering the
extent of his former counsel’s ineffectiveness. 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). Although this ninety-day period may be
equitably tolled, see Riley v. INS, 310 F.3d 1253, 1258 (10th Cir. 2002), the alien
must have exercised due diligence in pursuing his case, Galvez Piñeda, 427 F.3d
at 838.
As mentioned, the BIA found that Mr. Hakhinyan failed to show due
diligence in the four years between the issuance of the Board’s denial of his
appeal and the filing of his motion to reopen sufficient to warrant tolling of the
ninety-day period for filing the motion. Mr. Hakhinyan argues that only after he
received information pursuant to the Freedom of Information Act in November of
2007 did he understand the contours of his ineffectiveness claim. We agree with
the BIA, however, that once Mr. Hakhinyan received his “bag and baggage”
letter, approximately forty days after the BIA denied his appeal, he was on notice
that he had lost his appeal and needed to file a motion to reopen or appeal to this
court if he was to proceed further. When Mr. Hakhinyan was unable to contact
his former counsel, he made no attempt then to obtain his file from the agency.
Indeed, as noted by the BIA, instead of reporting to authorities as required after
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receipt of his “bag and baggage” letter, Mr. Hakhinyan moved to California and
did nothing to challenge the removal order for almost four years. The BIA did
not abuse its discretion in refusing to toll the filing requirements for the motion to
reopen.
Mr. Hakhinyan sees inconsistency in the fact that the BIA, in denying his
motion to reopen as untimely, stated that he had substantially complied with the
Lozada requirements. Compliance with Lozada, however, does not insure the
success of a motion to reopen based on ineffective assistance of counsel if the
motion itself and the Lozada compliance comes, as it did here, too late.
Throughout his brief, Mr. Hakhinyan argues both the merits of his
ineffective assistance claim and his challenge to the IJ’s underlying order of
removal. Those issues are not before us, however. This appeal concerns solely
whether the BIA erred in denying Mr. Hakhinyan’s motion to reopen based on
untimeliness. We conclude that the BIA did not abuse its discretion. The BIA’s
decision rationale was clear, the BIA did not depart from its well-established
policies, and the BIA’s decision was a correct interpretation of the law. See
Galvez Piñeda, 427 F.3d at 838.
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We GRANT respondent’s motion to proceed on appeal without prepayment
of costs or fees. Respondent’s motion to dismiss for lack of jurisdiction and the
petition for review are DENIED.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
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