Eneugwu v. Garland ( 2022 )

Case: 20-61162 Document: 00516563591 Page: 1 Date Filed: 12/01/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 1, 2022
No. 20-61162
Lyle W. Cayce
Clerk
Bobby Onyeka Eneugwu; Odera Obinna Eneugwu,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A078 555 678; A078 555 679
Before Jones, Southwick, and Ho, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
Two brothers from Nigeria petition this court to overturn the Board
of Immigration Appeals’ refusal to allow their removal proceedings to be
reopened. They argue their counsel’s ineffectiveness caused their
application for asylum and other relief to be incomplete and therefore denied,
and that counsel’s failures constituted extraordinary circumstances justifying
reopening of their removal proceedings. We disagree and deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
On November 20, 1997, Bobby Onyeka Eneugwu and Odera Obinna
Eneugwu, brothers who are natives of Nigeria, were admitted into the United
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No. 20-61162
States on tourist visas with permission to remain in the United States until
May 19, 1998. They have remained in the United States until now without
permission. In March 2009, the Department of Homeland Security
(“DHS”) issued Notices to Appear (“NTA”) to the Eneugwus, charging
them as removable under 8 U.S.C. § 1227(a)(1)(B) as noncitizens who re-
mained in the United States for a time longer than permitted. The Eneugwus
failed to appear at the Immigration Court hearing in December 2009 and,
accordingly, were ordered removed in absentia.
In September 2012, attorney Michael Mattson entered an appearance
on behalf of the Eneugwus, filed an admission of the factual allegations set
forth in each NTA, and conceded the charges of removability. In December
2012, Mattson moved to withdrew after being informed the Eneugwus would
be seeking other counsel. It was not until April 2015, though, that an Immi-
gration Judge (“IJ”) granted Mattson’s motion to withdraw.
Thereafter, the Eneugwus proceeded pro se at IJ hearings on Decem-
ber 12, 2017, and on March 21, 2018. At the March 2018 hearing, the Eneug-
wus filed individual applications for asylum, withholding of removal, and pro-
tection under the Convention Against Torture (“CAT”). At that hearing,
the IJ provided the Eneugwus with “biometrics instructions, advised [them]
of the importance of having their fingerprints taken, advised them to request
a fingerprint appointment right away, detailed, in depth, the process for re-
questing a fingerprint appointment, and warned [them] that the failure to
have their fingerprints taken prior to the merits hearing would lead to their
applications being denied.”
A merits hearing was held on March 25, 2019. Attorney Patrick
Chukwu entered his appearance on behalf of the Eneugwus. The IJ asked if
the Eneugwus had submitted their biometrics request to the address listed in
the biometrics instructions previously provided to them. The Eneugwus an-
swered they had not done so because their attorney did not tell them to have
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their fingerprints taken. The IJ then played the recording of the March 2018
hearing, where the IJ had stated the importance of and the process for finger-
printing. The IJ found no good cause for the Eneugwus’ failure to provide
their fingerprints, deemed the Eneugwus’ applications abandoned, and or-
dered the Eneugwus’ removal to Nigeria. The Eneugwus did not appeal.
In August 2019, the Eneugwus, through new counsel, filed a motion
to reopen on the grounds of ineffective assistance of counsel. Specifically,
the Eneugwus alleged Chukwu was ineffective when he failed to remind them
of the biometrics requirement and failed to submit their I-589 applications.
Further, the Eneugwus claimed that, but for Chukwu’s failure to provide ef-
fective assistance, they would have been afforded a hearing on the merits.
The IJ found the Eneugwus’ motions were untimely filed and not sub-
ject to equitable tolling. As to their claim that Chukwu failed to file their I-
589 applications, the IJ found the Eneugwus had already filed applications
they completed on March 21, 2018, and that they failed to show how the sub-
sequent applications substantively differed from the applications already filed
with the court. Regarding the claim that Chukwu failed to notify the Eneug-
wus of the biometrics requirement, the IJ found the Eneugwus “were aware
of the need to have their fingerprints taken prior to their merits hearing and
that their failure to do so would lead to the denial of their applications.”
As to counsel’s effectiveness, the IJ concluded the Eneugwus failed to
show Chukwu was ineffective or that his actions were prejudicial to their
cases. Therefore, their due process claims failed. Further, the IJ concluded
the Eneugwus failed to establish some extraordinary circumstance prevented
timely filing of their motions. Accordingly, the IJ determined equitable toll-
ing would not apply to their untimely motions. Given its rejection of the
Eneugwus’ ineffective assistance of counsel claims, the IJ found no basis to
reopen the case sua sponte. The Eneugwus filed an appeal to the Board of
Immigration Appeals (“BIA”).
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The BIA stated the Eneugwus did not contest the untimeliness of the
motion to reopen. As to equitable tolling based on ineffective counsel, the
BIA agreed with the IJ’s findings that the Eneugwus failed to establish
Chukwu provided ineffective assistance. Further, the BIA agreed the Eneug-
wus failed to show exceptional circumstances justifying a sua sponte reopen-
ing. The BIA dismissed the appeal.
One member of the BIA dissented, disagreeing with the IJ’s findings
regarding the assistance of counsel. The dissent considered that the Eneug-
wus retained an attorney to help them pursue all their claims. Their attorney
gave them a list of actions they needed to take in preparation for their merits
hearing, but the list did not include complying with the fingerprint require-
ment. According to the dissent, Chukwu’s failure to remind the Eneugwus
of the fingerprint requirement, after assuming responsibility for their case,
constituted ineffective assistance. The dissent also found the ineffective as-
sistance resulted in prejudice because it deprived the Eneugwus of a full hear-
ing on their applications for relief.
The Eneugwus timely filed a petition for review.
DISCUSSION
The Eneugwus argue the BIA abused its discretion in affirming the
IJ’s denial of their motions to reopen based on ineffective counsel and in re-
fusing to reopen the proceedings sua sponte.
The BIA’s denial of a motion to reopen is reviewed for an abuse of
discretion. Ramos-Portillo v. Barr, 919 F.3d 955, 958 (5th Cir. 2019). The
decision will stand unless it is “capricious, irrational, utterly without founda-
tion in the evidence, based on legally erroneous interpretations of statutes or
regulations, or based on unexplained departures from regulations or estab-
lished policies.” Id. (quotation marks and citation omitted). The BIA’s legal
conclusions are reviewed de novo; while we look for substantial evidence to
support fact findings, we will reverse only “when the record compels a
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different finding.” Garcia v. Garland, 28 F.4th 644, 646 (5th Cir. 2022) (quo-
tation marks and citation omitted). Relevant here, “[ineffective assistance of
counsel] is a constitutional claim that involves a mixed question of law and
fact.” Diaz v. Sessions, 894 F.3d 222, 227 (5th Cir. 2018) (quotation marks
and citation omitted).
I. Equitable tolling
The Eneugwus contend the BIA abused its discretion in affirming the
IJ’s denial of their motion to reopen as untimely, because they showed the
deadline should have been equitably tolled. Generally, an alien may file only
one motion to reopen removal proceedings; it must be filed within 90 days of
the entry of a final order of removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i). The
numerical limitation and time period are subject to equitable tolling. See
Lugo-Resendez v. Lynch, 831 F.3d 337, 343–44 (5th Cir. 2016).
An alien is entitled to equitable tolling by showing “(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circum-
stance stood in his way and prevented timely filing.” Id. at 344 (quotation
marks and citation omitted). Equitable tolling only applies in “rare and ex-
ceptional circumstances.” United States v. English, 400 F.3d 273, 275 (5th
Cir. 2005) (quotation marks). It is not invoked by a “garden variety claim of
excusable neglect.” Rashidi v. American President Lines, 96 F.3d 124, 128 (5th
Cir. 1996) (quotation marks).
We need not decide if ineffective assistance of counsel would be an
extraordinary circumstance justifying equitable tolling of the deadline for
seeking reopening. See Diaz, 894 F.3d at 227. That is because there has been
no argument that the untimeliness of the motion to reopen was the result of
ineffectiveness of counsel. The dissenting member of the BIA found ineffec-
tiveness for failure to ensure, or at least remind, about the need for biometrics
information. Even if so, the later failure to move within the time to reopen
was not caused by that shortcoming. The failure to move in timely fashion to
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reopen was an independent basis for the BIA to deny relief. We need not
consider the issue of ineffective counsel as to the biometrics information.
The Eneugwus have not shown any basis for equitable tolling of the
filing deadline for reopening.
II. BIA’s denial of the motion to reopen sua sponte
The Eneugwus seek review of the BIA’s decision to deny their motion
to reopen their removal proceedings sua sponte. We do not have “jurisdiction
to review the BIA’s discretionary decision not to invoke its sua sponte author-
ity to reopen a case because there is no legal standard against which to judge
that decision.” Mejia v. Whitaker, 913 F.3d 482, 490 (5th Cir. 2019) (quota-
tion marks and citation omitted).
The Eneugwus contend our refusal to review denials of sua sponte re-
opening of proceedings are “erroneous in light [of] the U.S. Supreme
Court’s controlling reasoning in Dada v. Mukasey, 554 U.S. 1 (2008), Heckler
v. Chaney, 470 U.S. 821 (1985), Kucana v. Holder, 558 U.S. 233 (2010), and
Mata v. Lynch,” 576 U.S. 143 (2015). The two most recent of the cited Su-
preme Court opinions expressly declined to reject the position of this court
and of other circuits that refusal to reopen sua sponte is not reviewable. See
Mata, 576 U.S. at 148; Kucana, 558 U.S. at 251 n.18. We conclude these Su-
preme Court opinions do not undermine our holdings that we do not have
jurisdiction to review refusals to reopen sua sponte.
The petition for review is DENIED in part, and to the extent it asserts
error when the BIA refused to reopen sua sponte, the petition is DIS-
MISSED.
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