Pineda v. Ashcroft

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 26, 2005
• Docket: 03-9501
• Status: Published

Opinion

F I L E D United States Court of Appeals Tenth Circuit PUBLISH October 26, 2005 UNITED STATES COURT OF APPEALS Clerk of Court TENTH CIRCUIT

LUIS GALVEZ PIÑEDA, JR.; MARIA EVELYN ROQUE PIÑEDA; JOHANNA ROQUE PIÑEDA; ROBINSON ROQUE PIÑEDA; DARWIN ROQUE PIÑEDA; AMIEL ROQUE PIÑEDA,

Petitioners, v. No. 03-9501 and 04-9590 ALBERTO R. GONZALES, United States Attorney General, *

Respondent.

PETITIONS FOR REVIEW OF ORDERS OF THE BOARD OF IMMIGRATION APPEALS (B.I.A. NOS. A78-578-577; A78-578-578; A78-578-579; A78-578-580; A78-578-581; A78-578-582)

Jeff Joseph (Jennifer Kain-Rios with him on the brief), Joseph Law Firm, P.C., Denver, Colorado, for Petitioners.

Melissa Neiman-Kelting, Attorney (Mary Jane Candaux, Senior Litigation Counsel, Peter D. Keisler, Assistant Attorney General, Richard M. Evans, Assistant Director, and Thomas B. Fatouros, Attorney, with her on the briefs),

* On February 4, 2005, Alberto R. Gonzales became the United States Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Mr. Gonzales is substituted for John Ashcroft as a Respondent in this action. Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C, for Respondent.

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

HARTZ, Circuit Judge.

This case deals with two separate petitions by Mr. Luis Galvez Piñeda and

his family for review of decisions by the Board of Immigration Appeals (BIA or

Board). The First Petition seeks review of the BIA’s summary dismissal of the

Piñedas’ appeal for failure to file a brief, and the Second Petition seeks review of

the BIA’s denial of their motion to reopen as untimely. We affirm both decisions

of the BIA.

Mr. Piñeda entered the United States on a visitor’s visa on July 28, 1999,

and his wife and four teenaged children followed several months later. After

remaining past the time allowed on their visas, the Piñedas applied for asylum and

withholding of removal. On November 13, 2001, the immigration judge (IJ)

denied the applications and ordered them removed to the Philippines. They filed

a timely notice of appeal with the BIA. When their counsel failed to file a brief

in support of the appeal, after indicating on the notice-of-appeal form that they

would do so, the BIA summarily dismissed the appeal on December 9, 2002, as

authorized by 8 C.F.R. § 1003.1(d)(2)(E) (formerly 8 C.F.R. § 3.1(d)(2)(i)(E)).

-2- The Piñedas then acquired new counsel and on June 22, 2004, filed a

motion to reopen with the BIA, claiming that their first counsel’s ineffective

assistance on appeal had deprived them of due process. See 8 C.F.R. § 1003.2(c).

The BIA denied that motion because it was not filed within the 90-day period set

by 8 C.F.R. § 1003.2(c)(2), and the Piñedas had not shown sufficient diligence to

justify equitable tolling of the period.

Both the First and Second Petitions challenge final orders of removal that

are subject to our review under 8 U.S.C. § 1252(a)(1). See Infanzon v. Ashcroft,

386 F.3d 1359, 1361–62 (10th Cir. 2004) (the BIA’s denial of a motion to reopen

“is considered a final, separately appealable order”). The petitions have been

consolidated as required by 8 U.S.C. § 1252(d)(6).

I. FACTS

A. Background

Mr. Piñeda, his wife, Maria, and their children, Johanna, Robinson, Darwin

and Amiel, are all natives and citizens of the Philippines. Mr. Piñeda was a

successful businessman, prominent in his community.

The asylum claim stems from Mr. Piñeda’s alleged contacts with the New

People’s Army (NPA), a communist organization that operates in many areas of

the Philippines. According to Mr. Piñeda, beginning in late 1984 and continuing

until his departure for the United States in 1999, the NPA made a series of

-3- demands, more aggressive and threatening over time, for “assistance” in the form

of weapons, monetary payments, and other material goods. He testified before the

IJ that one particularly threatening confrontation with a representative of the NPA

caused him to take refuge with a relative in Manilla and then travel to the United

States in January 1999. He returned to the Philippines that July but stayed for

only a few days, again going to the United States after he determined that the

threat remained. His family followed between May and June 2000.

B. Administrative Proceedings

On June 27, 2000, the Piñedas filed applications for asylum and

withholding of removal, claiming past persecution of Mr. Piñeda on account of

his political opposition to the NPA and on account of his membership in a

particular social group, namely, business owners who are subject to extortion

from the NPA and whom the government is unwilling or unable to protect. On

November 13, 2001, the IJ conducted a hearing and denied the applications for

asylum and withholding of removal. Relying on a BIA precedent, the IJ held that

the continual demand for money in the form of a revolutionary tax did not

constitute persecution on account of political opinion because the political

opinion of the target was irrelevant to the demand. The IJ also found some of Mr.

Piñeda’s story “difficult to believe.” R. at 167.

-4- The Piñedas’ attorney filed a timely notice of appeal with the BIA on

December 12, 2001. The notice briefly stated several grounds for appeal,

including the IJ’s failure to find a well-founded fear of persecution and failure to

address the asylum claim based on membership in a particular social group.

Box 6 on the notice-of-appeal form was checked to indicate that the Piñedas

would “file a separate written brief or statement.” Id. at 154. Following that box

on the form is a conspicuous warning that failure to file the promised brief or

explain the failure to do so could result in summary dismissal of the appeal.

The BIA sent out a briefing schedule indicating that the Piñedas had until

April 15, 2002, to submit a brief in support of their appeal. On December 9,

2002, not having received a brief, the BIA summarily dismissed the appeal. The

Piñedas’ attorney filed a timely petition for review with this court.

C. Change of Counsel

After repeated, unsuccessful efforts to contact his attorney, Mr. Piñeda

obtained a new attorney, who also tried unsuccessfully to contact the first attorney

to obtain the Piñedas’ file. New counsel (who is also present counsel) ultimately

received a copy of the administrative record from this court on December 16,

2003.

The Piñedas’ present counsel filed a brief in support of the First Petition,

arguing that ineffective assistance of counsel prevented them from obtaining a

-5- fundamentally fair hearing on the merits of their appeal, and challenging the

merits of the IJ’s decision on several grounds. Counsel also initiated steps toward

reopening the appeal to the BIA on the ground of ineffective assistance of

counsel. In compliance with the requirements of Matter of Lozada, 19 I. & N.

Dec. 637, 639 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1988), he filed a complaint

against the first attorney with the Colorado Supreme Court Attorney Regulation

Counsel. And on June 22, 2004, he filed a motion to reopen with the BIA. On

August 24, 2004, the BIA denied that motion as untimely because it had not been

filed within 90 days of the Board’s original decision, as required by 8 C.F.R. §

1003.2(c)(2). It rejected equitable tolling of the 90-day period for the following

reasons:

Equitable tolling of the motions deadline is unavailable when a party fails to exercise due diligence on his own behalf. The pending motion was filed over a year late. The [Piñedas] claim that they were unaware of former counsel’s ineffective assistance until they consulted with the attorney who signed the pending motion, but failed to enter his appearance with the Board. Yet the attorney who signed the pending motion began representing the [Piñedas] on October 15, 2003, according to a letter he wrote to the Colorado Supreme Court Attorney Regulation Counsel. Even so, this motion was not submitted for 8 more months. As Riley v. INS, [310 F.3d 1253 (10th Cir. 2002),] requires, we have considered that the [Piñedas] have complied with the procedural requirements for making a claim of ineffective assistance of counsel . . . . However, the [Piñedas] have not shown due diligence in presenting their claims in the pending motion, where the motion was not filed for many months after new counsel was consulted. The [Piñedas] state that they did not become aware of former counsel’s ineffective assistance of counsel until current counsel received a copy of the

-6- administrative record. However, the [Piñedas] do not state when this occurred. Exhibits submitted with the motion indicate that counsel who signed the pending motion submitted a brief to the Tenth Circuit Court of Appeals on February 6, 2004, after receiving the administrative record. The pending motion was not filed for another four months.

R. at 2–3 (internal citations and quotation marks omitted). The Piñedas’ Second

Petition in this court seeks review of that denial.

II. DISCUSSION

A. Summary Dismissal of Appeal

The Piñedas’ First Petition challenges the BIA’s adverse ruling on their

appeal from the IJ’s removal order. Much of their brief to this court points to

alleged errors by the IJ. But procedural bar precludes the Piñedas from raising

these claims. Their failure to comply with the BIA’s requirement that they file

their promised brief, see 8 C.F.R. § 1003.1(d)(2)(E), led to the BIA’s dismissal of

their appeal. On a petition for review to this court we will not permit the

petitioner to circumvent proper procedural requirements of the BIA by presenting

contentions that were procedurally barred by the Board.

The Piñedas, however, have presented two arguments to overcome this

procedural bar. First, at oral argument the Piñedas claimed that the BIA

improperly imposed its briefing requirement in their case. They contended that

the BIA abused its discretion in not considering the appeal on the basis of the

grounds presented in the notice of appeal itself. But because this claim did not

-7- appear in their briefs to us, we will not address it. See Thomas v. Denny’s, Inc.,

111 F.3d 1506, 1510 n.5 (10th Cir. 1997).

Their second argument, which they did brief, is that they were denied due

process by the ineffective assistance of prior counsel in failing to file a brief in

support of their appeal to the BIA. They argue that this failure is cause to

overturn the BIA’s summary dismissal and remand to the BIA for proceedings on

the merits. But this claim of ineffective assistance of counsel cannot be heard by

this court in the first instance. Before we hear the issue the Piñedas must exhaust

their administrative remedies with the BIA. “[B]ecause the Board has created in

Lozada a mechanism for hearing due-process based claims of ineffective

assistance of counsel, such claims must first be presented to the Board.” Osei v.

INS, 305 F.3d 1205, 1208 (10th Cir. 2002). The appropriate method of

presentation is a motion to reopen the case before the BIA. See Soberanes v.

Comfort, 388 F.3d 1305, 1309 (10th Cir. 2004) (“[T]he means for

administratively correcting an instance of ineffective assistance of counsel is a

motion to reopen . . . .”). Failure to exhaust administrative remedies by not first

presenting a claim to the BIA deprives this court of jurisdiction to hear it. See

Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999).

To be sure, after submitting their First Petition to this court, the Piñedas

presented their ineffective-assistance-of-counsel claim to the BIA in a motion to

-8- reopen. But, as discussed below, that motion was untimely. We have recognized

in a variety of contexts that untimely filings with administrative agencies do not

constitute exhaustion of administrative remedies. See, e.g., Patel v. Fleming, 415

F.3d 1105, 1109, 1112 (10th Cir. 2005) (section 1983 litigation under the Prisoner

Litigation Reform Act); Esposito v. United States, 368 F.3d 1271, 1274 (10th Cir.

2004) (Federal Tort Claims Act); Harms v. IRS, 321 F.3d 1001, 1009-10 (10th

Cir. 2003) (untimely appeal to the Merit Systems Protection Board). The Piñedas’

untimely motion to reopen does not satisfy the exhaustion requirement.

Accordingly, we lack jurisdiction to review the Piñedas’ ineffective-assistance

claim and dismiss the First Petition to the extent that it raises that claim.

B. Denial of Motion to Reopen

The BIA denied the Piñedas’ motion to reopen as untimely. “We review

the BIA's decision on a motion to reopen for an abuse of discretion. The BIA

abuses its discretion when its decision provides no rational explanation,

inexplicably departs from established policies, is devoid of any reasoning, or

contains only summary or conclusory statements.” Mickeviciute v. INS, 327 F.3d

1159, 1162 (10th Cir. 2003) (internal citations and quotation marks omitted). On

the other hand, there is no abuse of discretion when “although the BIA’s decision

is succinct, its rationale is clear, there is no departure from established policies,

-9- and its statements are a correct interpretation of the law.” Infanzon, 386 F.3d at

1362.

To avoid unnecessary delay in immigration proceedings, motions to reopen

must be brought promptly. “An alien may file only one motion to reopen removal

proceedings (whether before the Board or the Immigration Judge) and that motion

must be filed no later than 90 days after the date on which the final administrative

decision was rendered in the proceeding sought to be reopened.” 8 C.F.R.

§ 1003.2(c)(2). The 90-day period may be extended, however, by equitable

tolling. See Riley v. INS, 310 F.3d 1253, 1258 (10th Cir. 2002). To determine

whether tolling is appropriate, “[a] simple cursory comparison of the date of

filing and the regulatory time line for filing motions is not enough. Specifically,

the BIA must review Appellant’s due diligence along with his attempts to comply

with the BIA’s requirements detailed in Matter of Lozada . . . .” Id.

Here, the BIA dismissed the Piñedas’ appeal of the IJ’s decision on

December 9, 2002. The period for filing the motion to reopen expired 90 days

later, on March 9, 2003. The motion to reopen was filed on June 22, 2004. The

Piñedas contend that the BIA did not properly consider their diligence when it

rejected their argument for equitable tolling. We disagree.

The government concedes that tolling would be appropriate up to the point

at which the Piñedas knew or should have known of prior counsel’s

-10- ineffectiveness. The Piñedas in turn concede that this point was reached in

December 2003, when present counsel received a copy of the administrative

record in the case and discovered that prior counsel had received a briefing

schedule from the BIA with which he had not complied. Based on these two

concessions, the motion would not have been due before March 2004. Even that

date, however, is three months before the motion was actually filed on June 22,

2004.

The Piñedas make essentially two arguments for further equitable tolling.

First, they claim to have exercised due diligence by pursuing the First Petition

before this court. Second, they argue that the additional time was necessary to

establish the prerequisites set forth in Lozada for the filing of the motion to

reopen. See Mickeviciute, 327 F.3d at 1162 n.2 (Lozada requires that a motion

based on a claim of ineffective assistance of counsel be supported by (1) an

“affidavit setting forth the agreement that was entered into with former counsel”;

(2) “evidence that former counsel was informed of the allegations and allowed the

opportunity to respond”; and (3) “evidence [that] the aggrieved party filed a

complaint with appropriate disciplinary authorities.”). We are not persuaded.

Pursuit of the First Petition in this court does not establish the requisite

diligence—diligence in pursuing the motion to reopen. Timeliness can be critical

in immigration cases. Removable aliens are not permitted to delay matters by

-11- pursuing multiple avenues of relief seriatim when no reason suggests why they

could not be pursued simultaneously. Present counsel filed the opening brief

regarding the First Petition on February 6, 2004. The Piñedas claim that it was

only after receiving the respondent’s answer brief (filed with this court on March

12, 2004) that they made a “strategic decision” to file a grievance against their

first counsel and a subsequent motion to reopen. Pet’r Br. Second Pet. at 50. But

that is precisely the point. It was a “strategic decision,” not necessity, that led

them to forgo a motion to reopen at the outset and rely solely on the First Petition,

“expecting that this court would directly address” the merits of that petition. Id.

at 51. We have not been given any reason why counsel could not have been

preparing the Lozada grievance and the motion to reopen while pursuing the First

Petition. Furthermore, even a determination of diligence up to March 12 would

be insufficient, as it was still more than 90 days thereafter that the motion was

filed.

The Piñedas’ second argument is that they needed the additional time to

comply with Lozada before filing the motion to reopen. But 90 days would have

been more than adequate to comply. And had the Piñedas been unable to fulfill

all the Lozada requirements within 90 days, they could still have filed the motion

and explained any unavoidable delay. See Lozada, 19 I. & N. Dec. at 639

(requiring that the motion “reflect whether a complaint has been filed with the

-12- appropriate disciplinary authorities regarding such representation, and if not, why

not”).

Thus, the record before us amply supports rejection of the equitable-tolling

argument on essentially the grounds stated by the BIA. To be sure, the BIA when

it ruled did not know the precise date on which the Piñedas had received the

administrative record, noting only that it must have been some time before the

filing of their February 6, 2004, opening brief with this court. But any absence of

evidence favorable to equitable tolling was the Piñedas’ fault, as they had the

burden of persuasion on the motion to reopen. Moreover, the BIA gave them

every benefit of the doubt by noting that even February 6 was more than 90 days

before the filing of the motion. The BIA did not abuse its discretion in denying

the motion to reopen.

III. CONCLUSION

Because the Piñedas failed to exhaust their administrative remedies by first

presenting their ineffective-assistance-of-counsel claim to the BIA, we DISMISS

the First Petition insofar as it raises that claim; in all other respects we DENY the

First Petition, AFFIRMING the BIA’s summary dismissal. We DENY the Second

Petition and AFFIRM the BIA’s denial of the Piñedas’ motion to reopen.

-13-