Dubina v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 25, 2023
• Docket: 21-1174
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

OLEG DUBINA; DIANA KOROL, No. 21-1174 Agency Nos. Petitioners, A217-001-956 A217-001-955 v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 5, 2023** Seattle, Washington

Before: WARDLAW and M. SMITH, Circuit Judges, and HINKLE, Senior District Judge.***

Oleg Dubina, a native and citizen of Ukraine, and his wife Diana Korol, a

native of Germany and a citizen of Ukraine, (collectively, “Petitioners”) petition

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Robert L. Hinkle, United States Senior District Judge for the Northern District of Florida, sitting by designation. for review of a Board of Appeals’ (“BIA”) decision denying their motion to reopen

asylum proceedings as untimely. We have jurisdiction pursuant to 8 U.S.C. §

1252, and we affirm.

On February 3, 2020, the Immigration Judge (“IJ”) denied Petitioners’

asylum, withholding, and CAT claims. Petitioners expressly waived their right to

appeal in that proceeding. Petitioners nevertheless appealed to the BIA, arguing

that their “decision to waive an appeal was emotional, irrational, and illogical.”

On March 20, 2020, the BIA “summarily dismissed” Petitioners’ appeal, holding

that Petitioners did not “claim that they had any difficulty understanding the

proceedings, or that they did not voluntarily waive their right to appeal.” On April

29, 2021, Petitioners filed a motion to reopen with the BIA.

1. To the extent that Petitioners’ motion to reopen sought asylum based on

new evidence of changed country conditions in Ukraine, the BIA correctly

concluded that the motion to reopen was not properly before it and should have

been made to the IJ. Under the BIA’s “place-of-filing” rule, “a motion to reopen

must be filed with the immigration judge when the Board dismisses an appeal on

jurisdictional grounds and does not enter a decision on the merits.” Hernandez v.

Holder, 738 F.3d 1099, 1100 (9th Cir. 2013). The BIA’s March 2020 summary

dismissal was based on its lack of jurisdiction as “the Immigration Judge’s

decision became administratively final upon respondent’s waiver of the right to

2 21-1174 appeal.” The BIA never entered a decision on the merits of Petitioners’ application

for asylum.

2. The BIA properly construed the remainder of Petitioners’ post-judgment

motion as a motion to reconsider its March 20, 2020 summary dismissal of their

appeal from the IJ’s February 3, 2020 denial of their claims for asylum, removal,

and for CAT relief. The BIA correctly observed that the motion squarely

challenged the BIA’s “determination that [Petitioners] waived appeal of the

Immigration Judge’s decision.”

3. The BIA reasonably determined that Petitioners were not entitled to

equitable tolling for their untimely motion based on ineffective assistance of

counsel. Appellate counsel, brought in three days before the deadline for timely

filing an appeal to the BIA, and lacking a transcript of the prior proceedings, made

the tactical decision to preserve the appeal by meeting the deadline and requesting

a trial transcript. See Torres-Chavez v. Holder, 567 F.3d 1096, 1101 (9th Cir.

2009) (“counsel’s informed decisions” and “strategic choices” must be respected

“if they are based on professional judgment”). Because appellant counsel’s tactical

decisions do not amount to ineffective assistance of counsel, the BIA did not err in

finding that Petitioners’ motion was not entitled to equitable tolling.

4. Nor did the BIA err in finding that equitable tolling was not warranted

based on trial counsel’s allegedly deficient performance. The trial transcript

3 21-1174 supports trial counsel’s statement that he discussed with them their right to appeal,

that Dubina did not want to be further detained, and that he expressed on the record

Petitioners’ willingness to waive appeal in exchange for the designation of Russia,

not Ukraine, as the first country of removal. Trial counsel’s tactical decisions,

made at Petitioners’ request, do not amount to ineffective assistance of counsel.

Hernandez-Ortiz v. Garland, 32 F.4th 794, 802 (9th Cir. 2022) (“[W]hen counsel

does not pursue a particular course of action as a tactical choice, she generally has

not provided ineffective assistance, even if the choice turns out to be unwise or to

the client’s detriment.”) (internal quotations omitted). Accordingly, ineffective

assistance did not prevent Petitioners from timely filing their motion to reconsider.

PETITION DENIED.

4 21-1174