Tapia-Martinez v. Gonzales

• Citation: 482 F.3d 417
• Decision Date: 27 February 2007
• Docket Number: No. 05-4413.,05-4413.
• Parties: Dolores TAPIA-MARTINEZ, Petitioner, v. Alberto R. GONZALES, Attorney General of United States, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

482 F.3d 417

Dolores TAPIA-MARTINEZ, Petitioner, v. Alberto R. GONZALES, Attorney General of United States, Respondent.

No. 05-4413.

United States Court of Appeals, Sixth Circuit.

Argued: February 13, 2007.

Decided and Filed: February 27, 2007.^*

ARGUED: Marisa C. Petrella, Petrella Brown PLC, Southfield, Michigan, for Petitioner. Daniel E. Goldman, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Marisa C. Petrella, Petrella Brown PLC, Southfield, Michigan, for Petitioner. Daniel E. Goldman, M. Jocelyn Wright, United States Department of Justice, Washington, D.C., for Respondent.

Before: SUHRHEINRICH, SUTTON, and McKEAGUE, Circuit Judges.

SUHRHEINRICH, Circuit Judge.

Petitioner, Dolores Tapia-Martinez, seeks judicial review of a decision of the Board of Immigration Appeals ("BIA"), denying her second motion to reopen as numerically barred under 8 C.F.R. § 1-3.2(c)(2). Petitioner asserts that because her second motion to reopen is based on ineffective assistance of counsel, equitable tolling should apply. Petitioner also argues that review by a three-member panel pursuant to 8 C.F.R. § 1003.1(e)(6)(v) is warranted. We AFFIRM.

I. Background

The facts were laid out in a prior appeal:

Petitioner is a native and citizen of Mexico. Pursuant to 8 U.S.C. § 1182(a)(6)(A)(i), the INS commenced removal proceedings against petitioner by filing a Notice to Appear in November 1999, alleging that petitioner was an alien living in the United States without being admitted or paroled. Petitioner appeared before an IJ on May 24, 2000, where she was informed that relief in the form of cancellation of removal might be available to her. At a hearing held before the IJ on August 9, 2000, petitioner, through her counsel, admitted the allegations in the Notice to Appear and conceded removability. Petitioner's lawyer also requested cancellation of removal for petitioner under 8 U.S.C. § 1229b. The IJ directed that petitioner's application for cancellation of removal "must be filed no later than September 25, 2000." The IJ also scheduled a merits hearing for May 7, 2001, for adjudication of petitioner's application for cancellation of removal.

The record indicates that petitioner never filed an application for cancellation of removal. On March 29, 2001, the INS filed a motion to pretermit petitioner's application for cancellation of removal. On April 19, 2001, petitioner moved to allow substitution of new counsel Marisa Petrella for old counsel Valerie Yaeger and also moved to postpone the May 7 hearing. On April 23, 2001, petitioner filed an emergency motion requesting leave to file a late application for cancellation of removal, alleging that Yaeger had provided ineffective assistance of counsel by not submitting a timely application.

At the hearing on May 7, 2001, the IJ granted the INS's motion to pretermit, granted petitioner's motion to substitute counsel, and denied petitioner's motion for leave to file a late application. With regard to the latter motion, the IJ noted that petitioner's former counsel had been suspended from the practice of law, but the IJ pointed out that petitioner's new counsel had failed to include any evidence or affidavits to support petitioner's motion for leave to file a late application. The IJ indicated that petitioner's counsel could file a motion to reopen petitioner's case, supported by proper evidence, based specifically on an argument that petitioner's previous counsel had been ineffective.

Petitioner then requested voluntary departure from the United States under 8 U.S.C. § 1229c, and she testified that she had the means to leave the United States and would do so if her request were granted. The IJ granted her voluntary departure, requiring her to leave on or before July 6, 2001. The IJ also notified petitioner that if she chose to appeal the IJ's decision, her appeal "must be filed . . . on or before June 6, 2001. If you do not file the appeal, it may be dismissed as untimely."

Petitioner chose to appeal the IJ's decision to the BIA but did not file a motion to reopen her case. On June 5, 2001, petitioner's counsel mailed the notice of appeal to the BIA via U.S. Postal Service Express Mail but failed to ensure it was sent via next-day delivery. Petitioner's appeal was not received by the BIA until June 7, 2001. For this reason, the BIA dismissed the appeal as untimely on August 8, 2002. See 8 C.F.R. §§ 1003.38(b)-(c).

Petitioner's counsel then moved the IJ to reopen and, in the alternative, to reconsider, petitioner's case. The motion was dated August 30, 2002, but it was not filed with the Immigration Court until September 3, 2002. Petitioner's counsel failed to pay the filing fees for the motions. The IJ denied the motions on September 10, 2002, noting that:

• the petitioner failed to include a fee receipt as required by 8 C.F.R. § 1003.23(b)(1)(ii); • the motion to reconsider was filed more than thirty days after the entry of the May 7, 2001, order, which was the order petitioner wanted the court to reconsider;

• the petitioner was no longer eligible for cancellation of removal, since she had remained in the United States beyond the date set for her voluntary departure, see 8 U.S.C. § 1229c(d); and

• petitioner did not support her motion to reopen with a copy of the application for the relief requested, see 8 C.F.R. § 1003.23(b)(3).

On October 10, 2002, petitioner timely appealed the IJ's decision to the BIA. On November 28, 2003, the BIA affirmed the IJ's decision without opinion, pursuant to 8 C.F.R. § 1003.1(e)(4), thereby rendering the IJ's September 10, 2002, decision the final agency determination for purposes of judicial review. Petitioner then petitioned this court for review of the IJ's September 10, 2002, decision.

Tapia-Martinez v. Gonzales, 142 Fed.Appx 882, 883-84 (6th Cir.2005).

This Court denied the petition for review on July 28, 2005, see id. at 886, holding that the BIA did not abuse its discretion in denying Petitioner's motion to reopen, or to reconsider, for the numerous reasons set out by the Immigration Judge ("IJ"). Id. at 884. First, we noted that she failed to include the fee receipt as required by 8 C.F.R. §§ 1003.23(b)(1)(ii) & 1003.31(b). Id. Second, although the IJ cited the wrong regulation, the IJ correctly held that petitioner's motion to reconsider was untimely. The motion was due within thirty days of the IJ's order becoming final. § 1003.23(b)(1). Id. at 884-85. Because Petitioner's counsel failed to file a timely appeal, the IJ's order became final on June 6, 2001, see id. § 1003.39, giving petitioner thirty days from that date to file a motion to reconsider. Id. at 885. Third, we held that Petitioner failed to support her motion to reopen with a copy of the application for relief requested, as required by § 1003.23(b)(3). Id.

Lastly, we noted that Petitioner sought to reopen her case because of the ineffective assistance of her prior counsel. Id. We stated that

regardless of the merits of her ineffective assistance claim, petitioner did not comply with the voluntary departure order of May 7, 2001. Under 8 U.S.C. § 1229c(d), an alien who is permitted to depart voluntarily but fails to do so within the specified time period is ineligible for certain relief, including cancellation of removal, for ten years. Petitioner was specifically advised of these potential consequences at the May 7, 2001, hearing. Because she did not abide by the terms of the voluntary departure, she became ineligible for cancellation of removal, and thus even if the IJ had been inclined to allow the petitioner to file an application for cancellation of removal, the application would have been denied.

Id.

On or about July 13, 2005, while awaiting a decision regarding judicial review of the BIA's decision, Petitioner asked the Department of Homeland Security to join in a second motion to reopen,¹ this time following the IJ's advice and premising the motion on ineffective assistance of counsel. The request to join the second motion to reopen was denied.² On August 19, 2005 Petitioner then independently filed a second motion to reopen. The BIA denied the second motion to reopen by order dated October 6, 2005, deciding that it exceeded the numerical limitations for motions to reopen, under 8 C.F.R. § 1003.2(c)(2).

On May 11, 2006, a panel of this Court granted Petitioner's motion for stay of removal pending judicial review of the BIA's decision denying her second motion to reopen. The BIA's denial of Petitioner's second motion to reopen is now before us.

II. Analysis

A. Motion to Reopen

The denial of a motion to reopen is reviewed for abuse of discretion. Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir.2006). An abuse of discretion occurs when the denial to reopen "was made without a rational explanation, inexplicably departed from established policies, or rested on an invidious discrimination against a particular group." Id. (quoting Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005)). Issues of law are reviewed de novo by this Court. Id.

The Board did not abuse its discretion in denying Petitioner's second motion to reopen as numerically barred. Section 240 of the Immigration and Nationality Act (INA), which governs removal proceedings, provides that an alien who is ordered removed may file only one motion to reopen. 8 U.S.C. § 1229a(c)(7)(A) (2006). Furthermore, 8 C.F.R. § 1003.2(c)(2) provides that "[e]xcept as provided in paragraph (c)(3) of this section, 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) (2007). Section 1003.2(c)(3) provides four exceptions to the time and numeric bar for motions to reopen; none are applicable here. See 8 C.F.R. § 1003.2(c)(3).³

Pet...