Talamantes-Rojo v. Holder, Jr. , 341 F. App'x 462 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 18, 2009
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JUAN TALAMANTES-ROJO;
ASUNCION ROMERO-NUNEZ,
Petitioners, No. 08-9585
(Petition for Review)
v.
ERIC H. HOLDER, JR., *
United States Attorney General,
Respondent.
ORDER AND JUDGMENT **
Before TACHA, PORFILIO, and ANDERSON, Circuit Judges.
Juan Talamantes-Rojo and Asuncion Romero-Nunez, natives and citizens of
Mexico, petition for review of an order of the Board of Immigration Appeals
*
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 to grant the parties’ request for a decision on the briefs 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
(BIA or Board) denying their motion to reconsider. We dismiss the petition for
lack of jurisdiction.
BACKGROUND
Petitioners, who are married, entered the United States in 1991. In May
2006, during a merits hearing before an IJ, they filed applications for cancellation
of removal under 8 U.S.C. § 1229b(b)(1), claiming their removal “would result in
exceptional and extremely unusual hardship,” id. § 1229b(b)(1)(D), to their
United States-citizen son, James. A clinical psychologist testified during the
hearing and, as noted by the IJ, opined that “James has Attention Deficit and
Hyperactive Disorder . . . that may cause emotional damage and psychological
problems as [he] grows older.” Admin. R. at 143. The psychologist also stated,
again, as noted by the IJ, that James’s parents “would have difficulty locating
proper treatment for their son,” and that “treatment [in Mexico would] certainly
be beyond their financial means.” Id. 1 On December 22, 2006, the IJ denied
cancellation of removal because petitioners failed to sustain their burden of
showing exceptional and extremely unusual hardship to James. In so holding, the
IJ found the evidence was “not entirely consistent or compelling regarding the
severity of the child’s disorder” nor was it “conclusive regarding any treatment or
1
We rely on the IJ’s observations because the administrative record does not
contain a transcript of the hearing. See Pet’rs Br. at 3 n.5 (explaining that
because petitioners did not timely appeal the IJ’s decision to the BIA, the BIA
“did not transcribe [the] proceedings before the IJ”).
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the intensity of any treatment which [he] may need in the future.” Id. at 144. The
IJ did, however, grant petitioners’ request for voluntary departure.
Petitioners did not file a timely notice of appeal with the Board as required
by 8 C.F.R. § 1003.38(b). But on August 6, 2007, after retaining new counsel,
they filed an untimely notice of appeal and a motion urging the BIA to accept
their late appeal. Petitioners characterized this motion as a motion to reopen,
stating that it was brought pursuant to In re Lozada, 19 I. & N. Dec. 637, 638
(BIA 1988) (holding that ineffective assistance of counsel is a valid ground for
reopening when it prevented an alien “from reasonably presenting his case”). See
Chedid v. Holder, ___ F.3d ___, 2009 WL 2100615, at *5 n.4 (1st Cir. 2009)
(observing that the Lozada standard still governs). In the motion, petitioners
asserted that their former attorney’s performance was constitutionally ineffective.
Specifically, they claimed they were prejudiced by his failure to file a timely
notice of appeal with the Board and to marshal additional evidence, and that his
omissions rendered the proceedings fundamentally unfair. To remedy the
situation, they proposed, as best we can discern, that the BIA: accept the late
appeal under its certification authority, 8 C.F.R. § 1003.1(c); equitably toll the
90-day period applicable to motions to reopen 2 and reopen the proceedings,
2
See Galvez Pineda v. Gonzales, 427 F.3d 833, 838 (10th Cir. 2005)
(observing that although a “motion to reopen removal proceedings (whether
before the Board or the Immigration Judge) . . . [shall] be filed no later than 90
(continued...)
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id. § 1003.2(c); or sua sponte reopen the proceedings, id. § 1003.2(a). They also
sought a stay of removal and asked that their voluntary departure date be tolled.
On April 23, 2008, the BIA declined to certify the appeal and dismissed it
as untimely under 8 C.F.R. § 1003.38(b) and (c). Specifically, the BIA held:
[T]he appeal deadline [in § 1003.38(b)], which is jurisdictional, is
not subject to equitable tolling. [3] Moreover, even if we were to take
jurisdiction of this appeal by certification, the respondents have not
established that their former counsel’s failure to timely appeal
resulted in sufficient prejudice to warrant consideration of the appeal
on the basis of ineffective assistance of counsel. The respondents do
not appear to be statutorily eligible for cancellation of removal. In
addition, the Department of Homeland Security extended the
deadline for voluntary departure to September 28, 2007, which
negated the prejudice caused by prior counsel’s failure to timely post
the voluntary departure bond.
Admin. R. at 55 (citations and quotation omitted).
Petitioners did not petition for judicial review of the BIA’s decision. But
they did file a timely motion to reconsider the April order. 4 In it, they asked the
BIA to reconsider its decision not to certify the appeal; in particular, they claimed
2
(...continued)
days after the date on which the final administrative decision was rendered in the
proceeding sought to be reopened . . . [t]he 90-day period may be extended . . . by
equitable tolling” (citation and quotation omitted)).
3
But see Huerta v. Gonzales, 443 F.3d 753, 755 (10th Cir. 2006) (holding
appeal deadline in § 1003.38(b) to be “mandatory but not jurisdictional”
(emphasis added)).
4
A motion to reconsider is available to raise “errors of fact or law” in the
BIA’s prior decision and must be supported by “pertinent authority.” 8 C.F.R.
§ 1003.2(b)(1); see also 8 U.S.C. § 1229a(c)(6)(C).
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the BIA’s decision not to certify was erroneous because it was premised on a
faulty finding that petitioners were statutorily ineligible for cancellation of
removal, and that this finding yielded an incorrect determination that “counsel’s
error in not timely filing an appeal was harmless.” Id. at 17 (quotation omitted).
Next, they asserted that their “motion to reconsider . . . [was] timely and it may
very well also be equitably tolled under Tenth Circuit precedent.” Id. at 19
(citing Galvez Pineda, 427 F.3d at 838, and Riley v. INS, 310 F.3d 1253, 1258
(10th Cir. 2002) (holding that the 90-day regulatory deadline for filing a motion
to reopen may be equitably tolled)). 5 They also asserted that the BIA should sua
sponte reopen proceedings pursuant to 8 C.F.R. § 1003.2(a). Finally, petitioners
reiterated their request that the BIA toll their voluntary departure date.
On November 21, 2008, the BIA denied petitioners’ motion to reconsider.
Specifically, the BIA held:
We find no reason to disturb our prior decision. See 8 C.F.R.
§ 1003.2[(b)(1)]; see Matter of O-S-G-, 24 I & N Dec. 56
(BIA 2006). . . . [T]he respondents do not, in their motion, dispute
the fact that their appeal was filed 6 months late. Rather, [they]
argue that the Board erred in its previous decision by stating that the
respondents had failed to demonstrate prejudice because they do not
appear to be statutorily eligible for cancellation of removal. We find
any alleged error in this statement to be harmless, and continue to
find that the respondents have not shown prejudice from any alleged
5
This assertion makes little sense. Petitioners’ motion for reconsideration
was timely. Yet they argue that it should be equitably tolled, and in support, cite
authority holding that the deadline for filing a motion to reopen may be equitably
tolled.
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ineffective assistance of counsel. The Immigration Judge determined
that the respondents had failed to demonstrate that their departure
would result in exceptional and extremely unusual hardship to a
qualifying relative. The respondents’ arguments, in both their initial
appeal and the pending motion, fail to persuade us to disturb that
decision. Accordingly, the motion to reconsider is denied.
Admin. R. at 2 (citations omitted). This petition for review followed.
DISCUSSION
Much of petitioners’ appellate brief challenges the BIA’s April order
declining to certify their appeal and dismissing it as untimely. But petitioners
failed to file a petition for review from that decision within thirty days as required
by 8 U.S.C. § 1252(b)(1), and we therefore lack jurisdiction to review it.
Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th Cir. 2004); Nahatchevska v.
Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003) (per curiam).
Thus, we turn to the BIA’s denial of petitioners’ motion to reconsider.
Generally we have jurisdiction to consider the denial of a motion to reconsider,
Infanzon, 386 F.3d at 1361; Desta v. Ashcroft, 329 F.3d 1179, 1183 (10th Cir.
2003), and review such a decision for an abuse of discretion, see Belay-Gebru v.
INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003). In this case however—as detailed
below—our jurisdiction is lacking.
Petitioners argue that the BIA should have equitably tolled the regulatory
deadline for filing an appeal with the BIA. But we have no jurisdiction to
consider this argument because petitioners did not raise it in their motion to
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reconsider. See 8 U.S.C. § 1252(d)(1) (requiring exhaustion of administrative
remedies); Sidabutar v. Gonzales, 503 F.3d 1116, 1118 (10th Cir. 2007) (“[W]e
generally assert jurisdiction only over those arguments that a petitioner properly
presents to the BIA.”). We likewise are without jurisdiction to consider
petitioners’ argument, to the extent they make one, that the BIA abused its
discretion by not reconsidering its determination concerning DHS’s extension of
the deadline for voluntary departure. Again, this argument was not raised in their
motion to reconsider and it is therefore beyond our review. See id.Petitioners also argue that the BIA abused its discretion by denying
reconsideration of its prior determination not to certify their late appeal. But
because we cannot review the BIA’s decision not to certify the untimely appeal in
the first instance, Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir. 2005),
we also cannot review the BIA’s decision denying reconsideration of that
determination, Infanzon, 386 F.3d at 1362 (“[W]here judicial review of the
underlying order is precluded[,] . . . denial of a subsequent motion to reopen [or
reconsider is] also precluded.”). Finally, in so far as petitioners claim the BIA
abused its discretion by not exercising its sua sponte authority pursuant to
8 C.F.R. § 1003.2(a), we are without jurisdiction to consider this claim as well.
Belay-Gebru, 327 F.3d at 1000-01 (observing that the “decision of the BIA
whether to invoke its sua sponte authority is committed to its unfettered
discretion” and is therefore “not subject to judicial review” (quotation omitted)).
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CONCLUSION
We DISMISS the petition for review for want of jurisdiction.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
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