Romer v. Holder

663 F.3d 40, 2011 U.S. App. LEXIS 24571, 2011 WL 6144908
CourtCourt of Appeals for the First Circuit
DecidedDecember 12, 2011
Docket10-2112
StatusPublished
Cited by6 cases

This text of 663 F.3d 40 (Romer v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Romer v. Holder, 663 F.3d 40, 2011 U.S. App. LEXIS 24571, 2011 WL 6144908 (1st Cir. 2011).

Opinions

THOMPSON, Circuit Judge.

Oleksandr Romer, a citizen of Ukraine who is married to a United States citizen, asks that we overturn an immigration-court decision denying his motion to reopen removal proceedings as time- and number-barred, rejecting his request that the time and number limitations be tolled, ordering him removed to Ukraine, and imposing a ten-year bar on any adjustment of status because he overstayed an earlier voluntary-departure deadline. Finding that the immigration court inadequately explained its rationale for rejecting tolling and imposing the ten-year bar, we grant the petition for review, vacate the decision below, and remand.1

Romer entered the United States on a visitor’s permit in 1999. He overstayed the permit, and the government initiated removal proceedings. On November 8, 2005, an immigration judge (IJ) granted Romer voluntary departure by March 8, 2006. In an effort to remain in the country legally, Romer enlisted the services of attorney Vladislav Sirota after (he says) Sirota told him that he could successfully challenge the IJ’s decision.

Sirota’s first order of business was to file a timely motion to reopen removal proceedings — Romer’s first such motion. The IJ denied the motion on January 16, 2006, and mailed a copy to Sirota; Sirota (Romer says) never passed the message on to him. And so Romer remained in the country while his voluntary-departure deadline came and went.

Beginning in November 2005 and continuing for years, Romer and his wife (they say) called Sirota’s office once every few months to find out how the case was progressing. They say they were rarely able to speak directly with Sirota, but that they were often reassured by staff that cases like his can take time. They also say Sirota’s office advised them that Romer did not need to leave the country and could wait out his case’s resolution — even after immigration officers came to his home looking for him. In 2008, Sirota sought an additional $4,000 from Romer for another motion, claiming he had to apprise the immigration court of Romer’s wife’s change from lawful permanent resident to citizen. Romer paid the $4,000 fee in full.

On April 15, 2010, Romer was arrested, and he has remained in custody ever since. On April 25, 2010, an attorney at Sirota’s [42]*42firm filed a motion to reopen — Romer’s second — that was nearly a carbon-copy of the first. The IJ again denied the motion, observing that Romer had already reached his limit of one motion to reopen under 8 C.F.R. § 1003.23(b).2 The IJ further determined that, because Romer had overstayed his voluntary departure period, 8 U.S.C. § 1229c(d)(l)(B)3 imposed an absolute ten-year bar on any adjustment of status.

Several days later, Romer’s wife hired attorney Gregory Romanovsky to help Romer out of his predicament. Romanovsky filed another motion to reopen — Romer’s third — this time based on Sirota’s alleged incompetence and the case Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A.1988).4 Romanovsky also argued that the time5 and number limitations of § 1003.23(b) should be equitably tolled because Romer diligently pursued what he thought were legitimate means to remain in the country, and that the ten-year bar should not apply because Romer did not voluntarily overstay his term for departure but instead reasonably relied on counsel’s advice that he could remain in the United States.

For the third time, the immigration court denied Romer’s motion to reopen. The IJ brushed aside Romer’s claim that he had been misled, concluding that the new allegations were nothing more than “excuses” for disregarding the court’s then-five-year-old voluntary-departure order. The Board of Immigration Appeals (BIA) affirmed without comment, and this appeal followed. We have jurisdiction under 8 U.S.C. § 1252. See Neves v. Holder, 613 F.3d 30, 35 (1st Cir.2010); see also Kucana v. Holder, — U.S. —, 130 S.Ct. 827, 840, 175 L.Ed.2d 694 (2010).

Where the BIA affirms without issuing an opinion, we focus our review on the Id’s decision. Castillo-Diaz v. Holder, 562 F.3d 23, 26 (1st Cir.2009). We review the denial of a motion to reopen for abuse of discretion. Aponte v. Holder, 610 F.3d 1, 4 (1st Cir.2010). Abuse-of-discretion review entails significant deference to the IJ’s fact-finding and de novo review of any legal conclusions. Vaz dos Reis v. Holder, 606 F.3d 1, 3 (1st Cir.2010). The abuse-of-discretion standard also means that we review immigration courts’ explanations for at least minimal adequacy, “because ‘cursory, summary or conclusory statements ... leave us to presume nothing other than an abuse of discretion.’ ” Aponte, 610 F.3d at 4 (quoting Onwuamaegbu v. Gonzales, 470 F.3d 405, 412 (1st Cir.2006)). In the end, then, “we will vacate the decision below if the [immigration court] committed a material error of law or failed to articulate its reasoning adequate[43]*43ly.” Id. at 5. Here, we will apply this standard to Romer’s two arguments: that the time and number restrictions on his motion to reopen should be equitably tolled, and that imposition of the ten-year adjustment-of-status bar was inappropriate because his failure to timely depart was not voluntary.

First, Romer asks us to find that equitable considerations allow him to escape the time and number restrictions that doomed his motion to reopen. Generally speaking, “[t]he motion to reopen is a procedural device [that] selves to ensure that aliens get a fair chance to have their claims heard.” Id. (quoting Kucana, 130 S.Ct. at 837) (internal quotation marks omitted). But motions to reopen come with significant limitations: in the usual case, a party may file only one such motion, 8 C.F.R. § 1003.23(b)(1); 8 U.S.C. § 1229a(c)(7)(A), and must do so within 90 days of the final removal order, 8 U.S.C. § 1229a(c)(7)(C)(i).

In general, equitable principles may apply to ease the strict application of procedural limitations. Bay State HMO Management, Inc. v. Tingley Systems, Inc., 181 F.3d 174, 182 (1st Cir.1999) (“Equity demands that we not allow ... draconian result[s] to turn on ... procedural quirk[s].”). These principles’ application in the immigration context is not always so clear-cut; for example, the BIA has held that ten-year adjustment-of-status — bars the principle we discuss next are not subject to equitable easing. See In re Zmijewska, 24 I. & N. Dec.

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Bluebook (online)
663 F.3d 40, 2011 U.S. App. LEXIS 24571, 2011 WL 6144908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/romer-v-holder-ca1-2011.