Garcia v. Lynch , 821 F.3d 178 ( 2016 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 15-1633
    JOSÉ GARCÍA,
    Petitioner,
    v.
    LORETTA E. LYNCH, ATTORNEY GENERAL,
    Respondent.
    PETITION FOR REVIEW OF ORDERS
    OF THE BOARD OF IMMIGRATION APPEALS
    Before
    Torruella, Selya and Thompson,
    Circuit Judges.
    Raymond Sánchez Maceira on brief for petitioner.
    Benjamin C. Mizer, Principal Deputy Assistant Attorney
    General, Civil Division, U.S. Department of Justice, John S. Hogan,
    Assistant Director, Office of Immigration Litigation, and Nicole
    N. Murley, Trial Attorney, on brief for respondent.
    May 9, 2016
    SELYA, Circuit Judge.          Immigration cases — like old
    soldiers — seem never to die.           They may fade away for a spell, but
    they often return in slightly altered postures.                So it is here.
    The petitioner, José García, is a native and citizen of
    the Dominican Republic.           He seeks judicial review of rulings
    rejecting serial attempts to revisit a final order of removal
    entered in 2009.       Though creative, his arguments are unavailing
    and, in the end, we dismiss his petition in part and deny it in
    part.
    We briefly rehearse the essential facts and travel of
    the case.      By virtue of his 1996 marriage to a United States
    citizen, the petitioner became a conditional lawful permanent
    resident.    See 8 U.S.C. § 1186a(a)(1).           In 1998, the couple filed
    an   I-751    joint    petition    to     remove    the     conditions     of   the
    petitioner's residency.          See 
    id. § 1186a(c)(3).
                United States
    Citizenship and Immigration Services (USCIS) denied the petition,
    citing marriage fraud.         See 
    id. § 1186a(b)(1).
                 After numerous
    procedural     detours,    the     petitioner's          conditional     permanent
    residency     status     was   terminated,         and    federal      authorities
    instituted     removal     proceedings        against       him.         See    
    id. §§ 1227(a)(1)(D)(i),
    1229(a).
    On May 20, 2009, an Immigration Judge (IJ) entered an
    order of removal in absentia after the petitioner failed to appear
    for a scheduled hearing.          See 
    id. § 1229a(b)(5).
                  Through his
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    attorney, the petitioner promptly moved to reopen the proceeding,
    claiming that his arrival at the hearing had been delayed by
    traffic conditions.    The IJ denied this motion, concluding that
    there had been no showing of "exceptional circumstances beyond
    [the] alien's control."    See 
    id. § 1229a(b)(5)(C)(i).
    The petitioner appealed the denial of his motion to
    reopen to the Board of Immigration Appeals (BIA).     In short order,
    however, the petitioner executed an about-face: he withdrew his
    appeal   and   requested   reinstatement   of   the   removal   order,
    professing a desire to return to his homeland.        The BIA obliged
    and, on July 10, 2009, the petitioner was removed and remitted to
    the Dominican Republic.
    Sometime in December of 2012, the petitioner reentered
    the United States illegally.    He was soon apprehended and charged
    criminally with unlawful reentry.    See 8 U.S.C. § 1326(a).
    On August 28, 2013, the petitioner again moved to reopen,
    alleging that he had received ineffective assistance of counsel
    during the 2009 removal proceedings.       The petitioner initially
    contended that his counsel had never filed a motion to reopen.
    When it came to light, though, that the petitioner's counsel had
    indeed filed such a motion eight days after the IJ's in absentia
    removal order, the petitioner switched gears and argued that the
    filed motion to reopen was "terribly flawed" as it had not included
    a sworn statement from the petitioner himself.
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    The IJ denied this second motion to reopen on multiple
    grounds.     Two of those grounds are relevant here.   First, the IJ
    ruled that the motion was time and number barred.1      See 8 C.F.R.
    § 1003.23(b)(1).      Second, the IJ ruled that the petitioner's
    ineffective assistance of counsel claim was faulty because it did
    not comply with any of the requirements enumerated in Matter of
    Lozada, 19 I&N Dec. 637 (BIA 1988).2      On March 12, 2015, the BIA
    affirmed the denial of the second motion to reopen, adding that
    1 Motions to reopen are generally subject to both temporal and
    numeric restrictions. See Meng Hua Wan v. Holder, 
    776 F.3d 52
    , 56
    (1st Cir. 2015); see also 8 C.F.R. § 1003.23(b)(1).       "A party
    ordinarily may file only one motion to reopen, and that motion
    must be filed within 90 days of the date of entry of the final
    administrative order." Meng Hua 
    Wan, 776 F.3d at 56
    . The deadline
    for filing a motion to reopen in absentia orders of removal
    broadens to 180 days if the alien can demonstrate that the failure
    to appear was the result of exceptional circumstances.       See 8
    C.F.R. § 1003.23(b)(4)(iii)(A)(1); Xue Su Wang v. Holder, 
    750 F.3d 87
    , 89-90 (1st Cir. 2014).
    2 Under Lozada, a valid motion to reopen based on ineffective
    assistance of counsel must be supported by:
    (1) an affidavit explaining the petitioner's agreement
    with counsel regarding legal representation; (2)
    evidence that counsel has been informed of the
    allegations of ineffective assistance and has had an
    opportunity to respond; and (3) if it is asserted that
    counsel's handling of the case involved a violation of
    ethical or legal responsibilities, a complaint against
    the attorney filed with disciplinary authorities or, in
    the alternative, an explanation for why such a complaint
    has not been filed.
    Taveras-Duran v. Holder, 
    767 F.3d 120
    , 123 n.2 (1st Cir. 2014)
    (quoting Punzalan v. Holder, 
    575 F.3d 107
    , 109 n.1 (1st Cir.
    2009)); see Lozada, 19 I&N Dec. at 639.
    - 4 -
    the petitioner had not demonstrated prima facie eligibility for
    any conservable relief from removal.
    The petitioner moved for reconsideration of the BIA's
    decision.    See 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b).   On
    May 15, 2015, the BIA denied reconsideration.     This petition for
    judicial review was filed on May 26, 2015.   See 8 U.S.C. § 1252(b).
    Because this case comes to us as a procedural motley, we
    begin by clarifying the scope of our review.   Congress has imposed
    statutorily prescribed time limits on parties seeking judicial
    review of final agency orders in immigration cases.         See 
    id. § 1252(b)(1);
    Hurtado v. Lynch, 
    810 F.3d 91
    , 93 (1st Cir. 2016).
    Generally, compliance with these time limits is mandatory and
    jurisdictional.    See Onwuamaegbu v. Gonzales, 
    470 F.3d 405
    , 406
    (1st Cir. 2006); Zhang v. INS, 
    348 F.3d 289
    , 292 (1st Cir. 2003).
    Here, the petitioner characterizes his petition for review as a
    challenge to both the denial of his second motion to reopen and
    the denial of his motion to reconsider.      The catch, however, is
    that he never filed a timely petition for judicial review of the
    BIA's denial of his second motion to reopen; that is, he never
    filed such a petition within thirty days of that denial.3     See 8
    3 The BIA's March 12, 2015 order was a final order, and the
    subsequent filing of a motion to reconsider does not toll the
    running of the period within which an aggrieved party may seek
    judicial review. See Saka v. Holder, 
    741 F.3d 244
    , 248-49 (1st
    Cir. 2013).   To that extent, then, we dismiss the petition for
    want of jurisdiction.
    - 5 -
    U.S.C.    §       1252(b)(1).      It        follows    inexorably     that     we    lack
    jurisdiction to review that portion of the petitioner's challenge.
    See 
    Hurtado, 810 F.3d at 93
    .
    This leaves us with jurisdiction to review only the BIA's
    May 15, 2015 denial of the petitioner's motion for reconsideration.
    We review the denial of a motion to reconsider solely for abuse of
    discretion.         See Martinez-Lopez v. Holder, 
    704 F.3d 169
    , 171 (1st
    Cir.   2013).          Under    this    deferential        approach,     no   abuse     of
    discretion will ordinarily be found unless the "denial was made
    without       a     rational    explanation,         inexplicably      departed       from
    established policies, or rested on an impermissible basis."                            
    Id. at 172
    (quoting 
    Zhang, 348 F.3d at 293
    ).
    In this instance, the BIA denied the petitioner's motion
    to reconsider for two principal reasons.                   First, it reasoned that
    the petitioner's ineffective assistance of counsel claim failed
    because       the     petitioner       had    not      complied   with    the        Lozada
    requirements. Second, it pointed out that the motion to reconsider
    identified neither any error of law or fact in the underlying
    decision nor any argument that the BIA overlooked in reaching that
    decision.         See 8 C.F.R. § 1003.2(b)(1); In re O-S-G, 24 I&N Dec.
    56, 58 (BIA 2006).
    Before us, the petitioner suggests that the BIA abused
    its discretion not only by requiring strict adherence to the
    demands of Lozada but also by failing to equitably toll the time
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    and number restrictions on motions to reopen.                Neither suggestion
    carries the day.
    The first of these suggestions is simply unpersuasive.
    The petitioner does not dispute that he neglected to comply with
    the Lozada requirements.         Rather, he posits that the ineffective
    assistance      of   his   counsel      is   "plain   on     the   face    of   the
    administrative record," Escobar-Grijalva v. INS, 
    206 F.3d 1331
    ,
    1335 (9th Cir. 2000), thus entitling him to an exception to the
    Lozada requirements.        We have, however, explicitly disavowed any
    "plain on the face of the administrative record" exception in favor
    of a case-by-case assessment of whether the BIA's application of
    Lozada was arbitrary.       See Zeng v. Gonzales, 
    436 F.3d 26
    , 31 (1st
    Cir. 2006).
    Contrary to the petitioner's importunings, our decision
    in Saakian v. INS, 
    252 F.3d 21
    , 26-27 (1st Cir. 2001), does not
    endorse a different rule.        Fairly read, Saakian stands for nothing
    more   than    the   commonplace     proposition      that     the   BIA    cannot
    arbitrarily apply the Lozada requirements.                 See Tai v. Gonzales,
    
    423 F.3d 1
    , 5-6 (1st Cir. 2005); Asaba v. Ashcroft, 
    377 F.3d 9
    , 11
    (1st Cir. 2004).       That ends this aspect of the matter: since the
    petitioner's     theory    of   legal    error   is   foreclosed     by    circuit
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    precedent, the BIA perforce did not abuse its discretion in denying
    the motion for reconsideration on this ground.4
    The   petitioner's   remaining   argument   —   that   the   BIA
    abused its discretion by failing to treat his otherwise time and
    number barred second motion to reopen as if it were a timeous first
    attempt under the doctrine of equitable tolling — is a non-starter.
    Passing the question of whether equitable tolling is available at
    all in this context, see Omar v. Lynch, 
    814 F.3d 565
    , 568-69, 569
    n.1 (1st Cir. 2016) (leaving question open); Muyubisnay-Cungachi
    v. Holder, 
    734 F.3d 66
    , 72 (1st Cir. 2013) (same), it is black-
    letter law that "arguments not raised before the BIA are waived
    due to a failure to exhaust administrative remedies."            Shah v.
    Holder, 
    758 F.3d 32
    , 37 (1st Cir. 2014) (quoting Molina de Massenet
    v. Gonzales, 
    485 F.3d 661
    , 664 (1st Cir. 2007)). That rule applies
    four-square in this case: the petitioner did not make his equitable
    tolling argument before the BIA.    Instead, the argument makes its
    debut in his briefing to this court.       His failure to advance the
    argument below means that it is unexhausted and, thus, cannot be
    considered in this judicial review proceeding.        See id.; see also
    4 We add that nothing in the record so much as hints that the
    BIA abused its discretion in insisting upon the applicability of
    the Lozada requirements here. In all events, we have consistently
    upheld BIA orders denying motions to reopen when — as in this case
    — the Lozada requirements have been flouted. See, e.g., Taveras-
    Duran v. Holder, 
    767 F.3d 120
    , 123-24 (1st Cir. 2014); 
    Zeng, 436 F.3d at 31-32
    .
    - 8 -
    DaCosta v. Gonzales, 
    449 F.3d 45
    , 49-50 (1st Cir. 2006) (refusing
    to consider equitable tolling argument not raised before the BIA).
    We need go no further. For the reasons elucidated above,
    we dismiss the petition for judicial review in part for want of
    jurisdiction and otherwise deny it.
    So Ordered.
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