Elvira Mayancela de Perguachi v. Atty Gen USA ( 2012 )


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  • IMG-045                                        NOT PRECEDENTIAL
    
                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________
    
                                   No. 11-3256
                                   ___________
    
               ELVIRA GUALLPA MAYANCELA DE PERGUACHI;
                    MANUEL IGNACIO PERGUACHI CUJI,
                                     Petitioners
                                 v.
    
                ATTORNEY GENERAL OF THE UNITED STATES,
                                        Respondent
                   ____________________________________
    
                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                    (Agency Nos. A088-231-158; A088-231-146)
                  Immigration Judge: Honorable Frederic G. Leeds
                     ____________________________________
    
                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 14, 2012
            Before: SMITH, HARDIMAN AND STAPLETON, Circuit Judges
    
                           (Opinion file: March 22, 2012)
                                   ___________
    
                                    OPINION
                                   ___________
    
    PER CURIAM
    
         Petitioners, Elvira Guallpa Mayancela de Perguachi and Manuel Ignacio
    
    Perguachi Cuji, seek review of the Board of Immigration Appeals’ (“BIA” or
    “Board”) final order of removal. For the reasons that follow, we will deny the
    
    petition for review.
    
                                             I.
    
          Cuji and Perguachi are natives and citizens of Ecuador who have been in the
    
    United States unlawfully since 1994 and 1996, respectively. In June 2007, the
    
    government charged them each with removability pursuant to INA §
    
    212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i)] as aliens present without being
    
    admitted or paroled. Petitioners conceded removability as charged, but sought
    
    cancellation of removal under INA § 240A(b) [8 U.S.C. § 1229b(b)] on the ground
    
    that their three-year-old son, who is a United States citizen, has medical problems
    
    and would suffer undue hardship if they were forced to return to Ecuador.
    
          Following a hearing, the Immigration Judge (“IJ”) denied Petitioners’
    
    applications for cancellation of removal. The IJ explained that, in order to be
    
    eligible for that discretionary relief, Cuji and Perguachi were required to show that
    
    their removal “would result in exceptional and extremely unusual hardship” to
    
    their son. 8 U.S.C. § 1229b(b)(1)(D). The IJ noted that, although Petitioners had
    
    testified that their son’s health required regular monitoring, they had failed to
    
    submit any medical records or provide a doctor’s report “with a prognosis or
    
    diagnosis or indication that the child could not receive appropriate medical care in
    
    Ecuador.”    (AR000153).     Petitioners sought administrative review of the IJ’s
    
    
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    decision, but, by decisions dated March 31, 2009, the Board dismissed their
    
    appeals.
    
          On July 19, 2010, over fifteen months after the Board entered its final orders
    
    of removal, Petitioners filed a consolidated motion to reopen. In the motion,
    
    Petitioners claimed that their former attorney had rendered ineffective assistance
    
    by failing to ascertain that Perguachi’s parents were lawful permanent residents
    
    and could therefore serve as an alternative basis for their cancellation applications.
    
    Petitioners claimed that Perguachi’s parents had been lawful permanent residents
    
    since July 27, 1998, that they live half a block away from her in Newark, and that
    
    she takes care of them on a “day-to-day basis.” (AR000039-40.)
    
          In a decision dated February 8, 2011, the Board denied Petitioners’ motion
    
    to reopen.    The Board explained that, although Petitioners had substantially
    
    complied with the procedural requirements for an untimely motion to reopen based
    
    on a claim of ineffective assistance of counsel, see In re Lozada, 19 I. & N. Dec.
    
    637 (BIA 1988), they had failed to demonstrate either prejudice or due diligence so
    
    as to warrant equitable tolling. See Fadiga v. Att’y Gen., 
    488 F.3d 142
    , 159 (3d
    
    Cir. 2007).
    
          On March 9, 2011, Petitioners filed a letter brief with the BIA requesting
    
    reconsideration of its February 8, 2011 order. Petitioners’ letter brief consisted of
    
    the following single paragraph:
    
    
                                              3
                 In reopening, the [BIA] concluded that the [Petitioners] failed
          to show due diligence because the Motion to Reopen was not filed
          until July 27, 2010 when the record shows that the [Petitioners] first
          became aware of Mr. Perez’s ineffective assistance in March of 2009.
          However, this delay cannot be fairly ascribed to the [Petitioners]. The
          [Petitioners] exercised all the diligence that could possibly be
          expected of them in this case.
    
    (AR000011.)
    
          By order entered July 21, 2011, the BIA denied the motion. The Board
    
    found that Petitioners had failed to specify any error of fact or deficiency of law
    
    with respect to its due diligence determination, see 8 U.S.C.A. 1229a(c)(6)(C), and
    
    had not even addressed the alternative basis for its ruling on reopening, i.e., its
    
    prejudice finding.
    
              On August 22, 2011, Petitioners filed the present petition for review. 1
    
                                               II.
    
          On appeal, Petitioners challenge the BIA’s February 8, 2011 decision
    
    denying their consolidated motion to reopen. Specifically, they argue that the
    
    agency erred in concluding that they had failed to demonstrate either prejudice or
    
    due diligence to establish an ineffective assistance of counsel claim. We cannot,
    
    however, review the BIA’s February 8, 2011 decision denying Petitioners’ motion
    
    to reopen because they did not file their petition for review within thirty days of
    
    that order. See 8 U.S.C. § 1252(b)(1) (providing for 30-day deadline in which to
    
    
          1
              We have jurisdiction over this appeal pursuant to 8 U.S.C. § 1252(a)(1).
                                                4
    file petition for review); Stone v. I.N.S., 
    514 U.S. 386
    , 395 (1995) (explaining that
    
    a motion to reopen or reconsider does not toll the time to file a petition for review
    
    of the BIA’s underlying order).
    
          While the petition for review is timely with respect to the BIA’s July 21,
    
    2011 decision denying reconsideration, Petitioners neglect to sufficiently challenge
    
    that decision on appeal; although their brief contains passing references to the
    
    BIA’s decision, they have failed to make any specific arguments concerning the
    
    denial of reconsideration. Therefore, any challenge to the BIA’s July 21, 2011
    
    decision has been waived. See Li v. Att’y Gen., 
    633 F.3d 136
    , 140 n.3 (3d Cir.
    
    2011). In any event, we have reviewed the BIA’s order and conclude that it was
    
    not arbitrary, irrational, or contrary to law. See Zheng v. Att’y Gen., 
    549 F.3d 260
    ,
    
    265 (3d Cir. 2008). As the BIA noted, Petitioners failed to specify any error of fact
    
    or law in its prior decision, see 8 C.F.R. § 1003.2(b)(1), and instead simply
    
    declared—without any elaboration—that the delay in filing the motion to reopen
    
    “cannot be fairly ascribed to them.” (AR000003.)
    
                                            III.
    
          Accordingly, we will deny the petition for review. 2
    
    
    
    
          2
           Petitioners’ “Motion for Judicial Notice and to Supplement the Record of
    Proceedings” is denied. Pursuant to 8 U.S.C. § 1252(b)(4)(A), we are precluded
    from considering evidence that is not part of the administrative record.
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