Guerrero-Santana v. Gonzales

• Decision Date: 17 August 2007
• Docket Number: No. 06-2364.,06-2364.
• Parties: Ramón Santiago GUERRERO-SANTANA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

499 F.3d 90

Ramón Santiago GUERRERO-SANTANA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 06-2364.

United States Court of Appeals, First Circuit.

Submitted July 16, 2007.

Decided August 17, 2007.

Lazar Lowinger and Pamela Lindmark, on brief for petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, Office of Immigration Litigation, and Benjamin J. Zeitlin, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

Before TORRUELLA, Circuit Judge, SELYA and CYR, Senior Circuit Judges.

SELYA, Senior Circuit Judge.

The petitioner, Ramón Santiago Guerrero-Santana, seeks judicial review of a decision of the Board of Immigration Appeals (BIA) denying his motion to reopen a removal proceeding. In support of his petition, he suggests that the BIA abused its discretion both by failing to consider his claim of ineffective assistance of counsel and by refusing to apply equitable tolling to relieve him from the adverse effect of a missed deadline. Concluding, as we do, that the BIA did not abuse its discretion, we deny the petition.

The circumstances are easily explained. The petitioner, a citizen of the Dominican Republic, entered the United States without inspection on or about December 13, 1996. Within a matter of weeks, the authorities charged him with deportability under former section 241(a)(1)(B) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1251(a)(1)(B) (1996).

The removal proceeding was initiated by an order to show cause, which required the petitioner to appear before an immigration judge (IJ). At the petitioner's request, the immigration court transferred venue from Houston, Texas, to Boston, Massachusetts. Following the transfer, the IJ scheduled a hearing for September 11, 1997. A notice was sent by certified mail, return receipt requested, to the address provided by the petitioner. That notice commanded him to appear for the scheduled hearing and advised him that failure to appear could result in an order of deportation in absentia.

The court received a return receipt signed by the petitioner and bearing a date of June 11, 1997. Nevertheless, the petitioner failed to appear for the scheduled session. The IJ entered a removal order in absentia.

In May of 2004 — approximately seven years later — the petitioner, represented by counsel in the person of John Seabrook, moved to reopen his case. In his motion papers, the petitioner contended that he had not become aware of either the scheduling notice or the deportation order until sometime in 2001. He attempted to justify his ignorance of these facts by claiming that the address he had provided to the immigration court was his brother's and that, when he arrived in Massachusetts, his brother and sister-in-law were in the throes of separating. As a result, he was forced to rely on his sister-in-law for mail. Both the petitioner's brother and sister-in-law furnished statements in support of the foregoing scenario.

The petitioner's tale of woe did not end there. He added that once he became aware of the deportation order in 2001, he retained an attorney named James Dragon. He said that he hired Dragon in conjunction with his wife, an American citizen whom he had married earlier that year. But Dragon (or so the petitioner said) inexplicably failed to move to reopen his case as he had directed.

The IJ denied the motion to reopen. Crucially, she found that the petitioner had received appropriate notice of the scheduled hearing. She premised this finding on the fact that the petitioner personally had signed the return receipt. She added that, by waiting approximately seven years before moving to reopen, the petitioner had failed to comply with the ninety-day filing deadline for motions to reopen. See 8 C.F.R. § 1003.23(b)(1). Furthermore, the petitioner had not established that this delay was justified by exceptional circumstances. By the same token, he had not established prima facie eligibility for relief from deportation.

The petitioner appealed from this ruling. The BIA rejected his appeal, adopting and affirming the IJ's decision on May 17, 2005. The petitioner did not seek judicial review but, rather, frittered away yet another year before again moving to reopen.

This time, the petitioner was represented by his third lawyer in a five-year span — attorney Lazar Lowinger. In his motion to reopen, filed with the BIA, he reiterated his lack of notice claim, which the BIA already had rejected. He did however, add a new wrinkle — an allegation that he had received ineffective assistance of counsel from his two previous attorneys.

In this regard, the petitioner claimed that Dragon (who had since been disbarred on unrelated grounds) had neglected to file a motion to reopen on his behalf. His second lawyer, Seabrook, had rendered ineffective assistance, the petitioner maintained, by failing to raise Dragon's malpractice as a ground for relief in the first motion to reopen. While the petitioner conceded that his second motion to reopen was untimely, he claimed an entitlement to equitable tolling based on his counsels' ineffectiveness.

The BIA rejected the petitioner's second motion to reopen, noting that he had proffered no evidence to prove that ineffective assistance of counsel had caused the untimely filing of the motion. This petition for judicial review followed. In it, the petitioner repeats the claims presented in his second motion to reopen and asseverates that his untimely filing should be excused because (i) his due process rights were violated due to ineffective assistance of counsel and (ii) that ineffective legal representation entitled him to equitable tolling of the ninety-day filing deadline.

We preface our analysis of this asseverational array with a precis of the applicable legal standards. Motions to reopen removal proceedings are disfavored as contrary to "the compelling public interests in finality and the expeditious processing of proceedings." Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.2007) (quoting Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir.2005)). Consequently, we accord considerable deference to the BIA's decision on a motion to reopen and review such a decision solely for abuse of discretion. See Raza, 484 F.3d at 127; Roberts, 422 F.3d at 35. This means, in effect, that the BIA's decision will stand unless the petitioner can show that it rests on an error of law or that it is patently arbitrary. Raza, 484 F.3d at 127; Roberts, 422 F.3d at 35.

A myriad of statutes and regulations attends the conduct of removal proceedings. Under this regime, motions to reopen are limited both numerically and temporally. Thus, an alien ordinarily may file only a single motion to reopen a removal proceeding — and that motion ordinarily must be submitted within ninety days of the rendition of the final administrative decision. See 8 C.F.R. § 1003.23(b)(1). To be sure, the ninety-day deadline is subject to enumerated exceptions. See, e.g., 8 U.S.C. § 1229a(c)(7)(C)(ii), (iv); 8 C.F.R. §§ 1003.2(c)(3)(i)-(iv), 1003.23(b)(4)(i)-(iv). To cite one example, the deadline is 180 days when an order is entered in absentia and the alien shows the existence of exceptional circumstances. See 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1). To cite another example, the deadline may be extended indefinitely when the alien shows mis-delivery or non-delivery of the statutorily required notice. See id. § 1003.23(b)(4)(iii)(A)(2).

In this case, the petitioner's due process and equitable tolling claims both implicate the quality of his legal representation. While aliens have no constitutional right to counsel in removal proceedings, they are entitled to due process. See Lozada v. INS, 857 F.2d 10, 13 (1st...