Galvez Pineda v. Gonzales

• Decision Date: 26 October 2005
• Docket Number: No. 04-9590.,No. 03-9501.,03-9501.,04-9590.
• Citation: 427 F.3d 833
• Parties: Luis GALVEZ PI&#209;EDA, Jr.; Maria Evelyn Roque Pi&#241;eda; Johanna Roque Pi&#241;eda; Robinson Roque Pi&#241;eda; Darwin Roque Pi&#241;eda; Amiel Roque Pi&#241;eda, Petitioners, v. Alberto R. GONZALES, United States Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

427 F.3d 833

Luis GALVEZ PIÑEDA, Jr.; Maria Evelyn Roque Piñeda; Johanna Roque Piñeda; Robinson Roque Piñeda; Darwin Roque Piñeda; Amiel Roque Piñeda, Petitioners, v. Alberto R. GONZALES, United States Attorney General,^* Respondent.

No. 03-9501.

No. 04-9590.

United States Court of Appeals, Tenth Circuit.

October 26, 2005.

Jeff Joseph (Jennifer Kain-Rios with him on the brief), Joseph Law Firm, P.C., Denver, CO, 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), Office of Immigration Litigation, Civil Division United States Department of Justice, Washington, DC, 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 Piñdas' 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)).

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 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.

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 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 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 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...