Guido Tapia-Yaguachi v. Eric Holder, Jr. , 458 F. App'x 402 ( 2012 )

Case: 11-60485 Document: 00511724613 Page: 1 Date Filed: 01/13/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 13, 2012
No. 11-60485
Summary Calendar Lyle W. Cayce
Clerk
GUIDO RENAN TAPIA-YAGUACHI,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A074 398 115
Before REAVLEY, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
Guido Renan Tapia-Yaguachi (Tapia) seeks review of an order of the Board
of Immigration Appeals (BIA) dismissing his appeal from the immigration
judge’s denial of his motion to reopen an in absentia deportation order. We
review the denial of a motion to reopen “under a highly deferential
abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.
2005). The BIA’s decision must be upheld as long as it is not “capricious, racially
invidious, utterly without foundation in the evidence, or otherwise so irrational
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-60485
that it is arbitrary rather than the result of any perceptible rational approach.”
Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (internal quotation marks
and citation omitted).
Given that Tapia’s deportation proceedings began in 1996, 8 U.S.C.
§ 1252b (repealed) supplies the applicable procedural requirements. The statute
provides that “written notice [of the time and place of the deportation
proceedings] shall be given in person to the alien (or, if personal service is not
practicable, written notice shall be given by certified mail to the alien or to the
alien’s counsel of record, if any).” § 1252b(a)(2)(A). A deportation order may be
entered in absentia if, after the written notice required under subsection (a)(2)
has been provided to the alien or the alien’s counsel of record, the alien fails to
appear. § 1252b(c)(1). Additionally, the statute provides that a deportation
order entered in absentia may be rescinded “upon a motion to reopen filed within
180 days after the date of the order of deportation if the alien demonstrates that
the failure to appear was because of exceptional circumstances,” or “upon a
motion to reopen filed at any time if the alien demonstrates that the alien did
not receive notice in accordance with subsection (a)(2) of this section.”
§ 1252b(c)(3)(A), (B).
The BIA determined that notice of the November 6, 1996 hearing was
properly served on Tapia’s former counsel, Rose Marie de Leon. It determined
that Tapia’s claim that exceptional circumstances prevented him from appearing
at the hearing was untimely, that he had not established that equitable tolling
was warranted, and that he had not exercised due diligence. The BIA also
determined that Tapia had not satisfied the procedural requirements for
establishing a claim of ineffective assistance of counsel.
In his opening brief, Tapia asserts that there is no evidence that de Leon
entered an appearance on his behalf. However, following the Attorney General’s
supplementation of the administrative record with the notice of appearance form
signed by de Leon, he concedes in his reply brief that de Leon entered an
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No. 11-60485
appearance on his behalf in the immigration court. Tapia notes, however, that
his signature does not appear on the form filed by de Leon. He argues that the
entry of appearance form does not establish that de Leon was authorized to act
as his attorney, and he contends that the record does not support a
determination that notice to de Leon was proper.
Tapia has not established that the notice of representation filed by de Leon
was invalid because his signature does not appear on the form. Substantial
evidence supports the BIA’s determination that de Leon was his counsel in the
immigration court at the time of his deportation hearing before the immigration
court, and we defer to that finding. See Zhang v. Gonzales, 432 F.3d 339, 344
(5th Cir. 2005).
In “our system of representative litigation . . . each party is deemed bound
by the acts of his lawyer-agent and is considered to have notice of all facts, notice
of which can be charged upon the attorney.” Link v. Wabash R.R., 370 U.S. 626,
634 (1962) (internal quotation marks and citation omitted). The record shows
that notice of the November 6, 1996 hearing was served on Attorney de Leon via
certified mail. This service satisfied both constitutional and statutory notice
requirements. See id.; § 1252b(a)(2). Tapia has not established that the BIA
erred in determining that notice was properly served on his counsel of record.
Tapia contends that the BIA’s discussion of a claim of ineffective
assistance of counsel and equitable tolling are not relevant. He also asserts that
he need not establish due diligence because his claim of improper notice can be
brought at any time. As Tapia has failed to show error in the BIA’s
determination that notice was properly served on his counsel of record, we will
not consider these arguments.
Tapia has failed to show that the BIA abused its discretion in denying his
motion to reopen. See Singh, 436 F.3d at 487. Accordingly, his petition for
review is DENIED.
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