Infanzon v. Ashcroft
Decision Date | 28 October 2004 |
Docket Number | No. 03-9565.,03-9565. |
Citation | 386 F.3d 1359 |
Parties | Oscar Federico INFANZON, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent. |
Court | U.S. Court of Appeals — Tenth Circuit |
Patrick C. Hyde of Patrick C. Hyde, P.C., Denver, CO, for Petitioner.
Linda S. Wendtland, Assistant Director, Rena I. Curtis, Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondent.
Before HENRY, MURPHY, and TYMKOVICH, Circuit Judges.
Petitioner seeks review of a Board of Immigration Appeals (BIA) order denying his motion to reopen removal proceedings. We have jurisdiction, and we deny the petition for review.1
The record reflects that the immigration judge (IJ) denied petitioner's application for asylum and withholding of removal on July 5, 1999. The IJ determined that petitioner, a Peruvian national, had failed to demonstrate the requirements for asylum and withholding of removal. Admin. R. at 276-81. On June 19, 2002, the BIA affirmed the IJ's decision without opinion, permitting voluntary departure. Id. at 253. Petitioner did not seek judicial review of the order affirming the IJ's removal order. According to petitioner, he departed the United States in August of 2002, but soon returned and was apprehended and placed in custody of the Immigration and Naturalization Service (INS)2 on November 6, 2002. Id. at 65.
On January 24, 2003, petitioner filed his motion to reopen with the BIA. Id. at 213. He claimed that because of "ineffective assistance of counsel and lack of material evidence" not previously available at his original hearing, he had been denied the right to have his asylum claim fairly considered. Id. at 215. Following a response by the INS, the BIA denied the motion to reopen on two grounds: first, the motion was untimely filed because it was not filed within ninety days after the BIA decision on removal entered June 19, 2002, as required by 8 U.S.C. § 1229a(c)(6)(C)(i); 8 C.F.R. § 1003.2(c)(2)(2003), and second, the motion failed to comply with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), when ineffective assistance of counsel is alleged.3 Admin. R. at 2.
In his petition for review, petitioner presents three issues. First, he claims that under the circumstances of his case, the BIA was obligated to reopen the case sua sponte under 8 C.F.R. § 1003.2(a), rather than rely on the timeliness requirement of § 1003.2(c). Pet'r Opening Br. at 10. Next, he contends that the BIA is obligated to provide the reviewing court a "rationale and evidence on the record as a whole." Id. at 10-11. Finally, he argues that the decision in Lozada does not always require the filing of a complaint against former counsel because the BIA or another attorney would be better suited to report the ineffectiveness of former counsel, particularly where the petitioner is in custody. Id. at 11.
With respect to plaintiff's first issue, we do not have jurisdiction to consider petitioner's claim that the BIA should have sua sponte reopened the proceedings under 8 C.F.R. § 1003.2(a) because there are no standards by which to judge the agency's exercise of discretion. See Belay-Gebru v. INS, 327 F.3d 998, 1000 (10th Cir.2003).
We also do not have jurisdiction to review the BIA's June 19, 2002 order affirming the IJ's denial of petitioner's application for asylum because he did not timely file a petition for review from that order within thirty days as required by 8 U.S.C. § 1252(b)(1). See Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir.2003) ( ); see also Boudaguian v. Ashcroft, 376 F.3d 825, 827 (8th Cir.2004) ( ).
We do, however, retain jurisdiction to consider the BIA's denial of petitioner's motion to reopen the proceedings. We recently held that we lacked jurisdiction to review an IJ's denial of a motion for continuance because that is a form of discretionary relief for which judicial review is precluded under 8 U.S.C. § 1252(a)(2)(B)(ii). Yerkovich v. Ashcroft, 381 F.3d 990, 994 (10th Cir.2004). A motion to reopen, on the other hand, is separately authorized by 8 U.S.C. § 1229a(c)(6) ( ), as further explicated by 8 C.F.R. § 1003.2(c). It is considered a final, separately appealable order. See Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) ( ).
Moreover, a different section of the very statute limiting jurisdiction to review certain discretionary decisions, i.e., § 1252(a)(2)(B)(ii), also directs that appeals taken from an order of denial of a motion to reopen or reconsider will be consolidated "with the review of the order" sought to be reopened or reconsidered. 8 U.S.C. § 1252(b)(6) (). This section would have been unnecessary if Congress had intended such motions to be among those discretionary decisions not subject to review. Only where judicial review of the underlying order is precluded is denial of a subsequent motion to reopen also precluded. See, e.g., Patel v. United States Attorney Gen., 334 F.3d 1259, 1261 (11th Cir.2003) ( ); Dave v. Ashcroft, 363 F.3d 649, 652 (7th Cir.2004) ( ); Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir.1997) ( ).
The government does not dispute that we have jurisdiction because "motions to reopen are the functional equivalent of and analogous to final orders of removal." Resp. Supp. Br. at 2. We conclude we have jurisdiction over the denial of the motion to reopen.
Gurung v. Ashcroft, 371 F.3d 718, 720-21 (10th Cir.2004) (alteration in original) (further quotation and citation omitted). Here, although the BIA's decision is succinct, its rationale is clear, there is no departure from established policies, and its statements are a correct interpretation of the law.
To the extent petitioner argues that we are unable to determine on what grounds the BIA denied the motion to reopen, he is wrong. See Pet'r Opening Br. at 14. The motion was denied because it was untimely filed and failed to meet the requirements of Lozada. Admin. R. at 2; see Osei v. INS, 305 F.3d 1205, 1209 (10th Cir.2002). "[T]he BIA uses the criteria set forth in [Lozada] as a screening device and does not generally consider the merits of such claims until the alien has met certain threshold requirements." Id. at 1209 (citations omitted). Petitioner's motion to reopen was not filed within ninety days, a fact petitioner did not even mention in the motion itself. See 8 C.F.R. § 1003.2(c)(2).
In response to the motion to reopen, the INS noted that even if petitioner were claiming that the time for filing the motion should be subject to equitable tolling, petitioner had failed to comply with the requirements for equitable tolling as outlined in Riley v. INS, 310 F.3d 1253, 1258 (10th Cir.2002):
The BIA must examine Appellant's situation to determine whether his particular case warrants equitable tolling.... Specifically, the BIA must review Appellant's due diligence along with his attempts to comply with the BIA's requirements detailed in Matter of Lazoda, 19 I. & N. Dec. 637, 639 (BIA 1988) ( ) affidavit detailing agreement with counsel, 2) counsel informed of allegations and given opportunity to respond, and 3) complaint filed with disciplinary authorities).
See Admin. R. at 196.
In reply, petitioner attempted to explain his compliance with Lozada by stating (1) that "an affidavit is unnecessary because the former attorney has obviously contracted to represent" him in an effective manner, (2) that the motion to reopen did not rest entirely on ineffective assistance of counsel but also "on an unfair individual asylum hearing, which may or may not have been as a result of ineffective assistance of counsel," and (3) that he did not "want to begin a lawsuit against his former attorney," having "neither the money nor the desire now to file an ineffective assistance of counsel complaint." Admin. R. at 68. Petitioner further stated that the exhibits presented with his motion to reopen "most likely [were] not discovered or presented at the prior hearing as a matter of ineffective assistance of counsel." Id. at 69. One of these documents was a statement from petitioner's doctor based on a December 23, 2002 examination, concluding petitioner had been abused and "continues to suffer the physical and psychological consequences of [his] mistreatment." Id. at 220. Petitioner's hearing, however, occurred in January of 1999. Id. at 290. The injuries...
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