Rodriguez-Manzano v. Holder

• Decision Date: 09 January 2012
• Docket Number: No. 09–60795.,09–60795.
• Citation: 666 F.3d 948
• Parties: Bruno RODRIGUEZ–MANZANO, also known as Bruno Manzano, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

666 F.3d 948

Bruno RODRIGUEZ–MANZANO, also known as Bruno Manzano, Petitioner,

v.Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 09–60795.

United States Court of Appeals, Fifth Circuit.

Jan. 9, 2012.

Stephen Joseph O'Connor (argued), Law Office of Stephen O'Connor, Austin, TX, for Petitioner.

Ada Elsie Bosque, Sr. Lit. Counsel (argued), Tangerlia Cox, Juria L. Jones, Trial Atty., U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.

Appeal from the Board of Immigration Appeals.

Before WIENER, CLEMENT, and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Rodriguez–Manzano appeals both the Board of Immigration Appeals' (“BIA's”) dismissal of his initial appeal of the denial of his motion to reopen his deportation proceedings because of ineffective assistance of counsel and its denial of his motion for reconsideration. We AFFIRM the denial of Rodriguez–Manzano's initial motion to reopen. We REVERSE the BIA's denial of Rodriguez–Manzano's motion for reconsideration, however, because it abused its discretion by ignoring its own precedent to require Rodriguez–Manzano to show that he had exercised due diligence in pursuing his ineffective assistance of counsel claim.

I.

In October 1987, Rodriguez–Manzano, an El Salvadorian citizen, received an order to show cause from the then-Immigration and Naturalization Service ¹ charging him with entering the United States without an inspection. His attorney at that time, Roberto Ramos, admitted the allegations against him, conceded the charge, and requested asylum. In August 1988, the Immigration Judge sent Ramos a letter, notifying him that an “individual calendar hearing was scheduled for September 29, 1988, at the Immigration Judge's office in Harlingen, Texas.” When Rodriguez–Manzano failed to appear at the hearing, the Immigration Judge issued a boilerplate order that Rodriguez–Manzano be deported.

Nearly twenty years later, through new counsel, Rodriguez–Manzano filed a motion to reopen the proceedings against him, arguing that Ramos's ineffective assistance excused his failure to attend the 1988 hearing. Rodriguez–Manzano argued that “Mr. Ramos obviously failed to contact or notify [him] regarding his subsequent hearings before the Immigration Court.” The Immigration Judge denied Rodriguez–Manzano's motion, finding that Rodriguez–Manzano had failed to comply with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Lozada requires an alien seeking to reopen deportation proceedings because of ineffective assistance of counsel to present: (1) an affidavit from the alien detailing the relationship with counsel; (2) evidence that former counsel had been informed of the ineffective assistance of counsel claim and given a chance to respond to it; and (3) evidence as to whether a complaint had been filed with the appropriate disciplinary authorities. Lara v. Trominski, 216 F.3d 487, 496 (5th Cir.2000); Lozada, 19 I. & N. Dec. at 639.

Rodriguez–Manzano appealed the Immigration Judge's decision to the BIA. The BIA cited In re Cruz–Garcia, 22 I. & N. Dec. 1155 (BIA 1999) in support of its conclusion that Rodriguez–Manzano's motion to reopen was timely despite current regulations that impose timing limitations on motions to reopen filed today, because those regulations do not apply to motions to reopen deportation proceedings like Rodriguez–Manzano's that commenced in 1987. Although it concluded that the motion was timely filed, it dismissed Rodriguez–Manzano's appeal, determining that he had failed to comply with Lozada. Rodriguez–Manzano filed a timely petition for review of the BIA's decision.

Rodriguez–Manzano filed a motion for reconsideration² of the BIA's denial of his motion to reopen, or, in the alternative, a motion for the BIA to reopen the merits of his case sua sponte. Rodriguez–Manzano argued that since the BIA issued its original decision, he had complied with Lozada and attached a copy of a bar complaint he had filed against Ramos to his Motion for Reconsideration. He claimed that his prior failure to comply with Lozada was justified because he had been unable to locate Ramos. Indeed, further investigation revealed that Ramos was not a licensed attorney in Texas and that he no longer resided in the United States. Rodriguez–Manzano also claimed that Ramos's law office—the Law Office of Lionel Perez—refused to offer him any assistance in locating Ramos. The BIA agreed that Rodriguez–Manzano had complied with Lozada. Nevertheless, it denied his motion, reasoning that Rodriguez–Manzano had failed to pursue his claim with due diligence. Rodriguez–Manzano filed a timely petition for review of the BIA's decision.

II.

We first explain this case's statutory background that provides the basis of our jurisdiction over this appeal. Proceedings against Rodriguez–Manzano commenced in 1987. At that time, judicial review of the BIA's decisions was governed by Section 106(a) of the Immigration and Nationality Act (INA). See Medina v. INS, 1 F.3d 312, 314 & n. 4 (5th Cir.1993) (explaining that under Section 106(a), BIA decisions are appealed directly to the Court of Appeals). Since then, however, Congress has enacted two laws affecting our jurisdiction over claims raised in immigration petitions.

First, Congress repealed Section 106(a) of the INA and enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104–208, 110 Stat. 3009 (1996), which contained transitional rules limiting the scope of judicial review of deportation proceedings commenced prior to its effective date of April 1, 1997. IIRIRA §§ 306(b) & 309(c). Second, in 2005, Congress enacted the REAL ID Act, Pub.L. No. 109–13, 119 Stat. 231 (2005) (codified as amended at 8 U.S.C. § 1252), Section 106(d) of which provides:

A petition for review filed under former section 106(a) of the Immigration and Nationality Act (as in effect before its repeal by section 306(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ...) shall be treated as if it had been filed as a petition for review under section 242 of the Immigration and Nationality Act (8 U.S.C. § 1252), as amended by this section.

Accordingly, the jurisdictional rules codified in 8 U.S.C. § 1252 control here.

The government contends that our decision in Ramos–Bonilla v. Mukasey, 543 F.3d 216 (5th Cir.2008), prevents us from exercising jurisdiction here. In that case, the BIA denied Ramos–Bonilla's 2007 motion to reopen his deportation proceedings for not being timely filed as required by 8 C.F.R. § 1003.2(c)(2). Id. at 218–19. Ramos–Bonilla appealed, arguing that the BIA abused its discretion by failing to apply equitable tolling or waive 8 C.F.R. § 1003.2(c)(2)'s limitations on motions to reopen. Id. at 219. We agreed with the BIA that, under current regulations, Ramos–Bonilla's motion was untimely, and thus “the only remedy available was under the IJ's or the BIA's sua sponte authority to reopen the case.” Id. at 219. We held that because those regulations “g[a]ve[ ] an IJ or the BIA complete discretion to deny untimely motions to reopen, the reviewing court ha[d] no legal standard by which to judge the IJ's ruling, and therefore the court lack[ed] jurisdiction.” Id. at 220 (citing Enriquez–Alvarado v. Ashcroft, 371 F.3d 246, 249–50 (5th Cir.2004)).

Relying on that case, the government argues that we lack jurisdiction to review Rodriguez–Manzano's claim because his motion was untimely, and therefore, the BIA could only grant it sua sponte. The government's reliance on Ramos–Bonilla is misplaced because the regulatory regime relevant to that case does not apply here. For deportation orders issued prior to 1992, like Rodriguez–Manzano's, there are no time limits on motions to reopen or reconsider. See Cruz–Garcia, 22 I. & N. Dec. at 1159 (holding that post–1992 regulations imposing timing requirements on motions to reopen deportation proceedings do not apply retroactively to motions to reopen deportation proceedings commencing before 1992).³ Therefore, Rodriguez–Manzano's motion was not untimely, and we have jurisdiction to review the BIA's decision.

We review the BIA's decision, considering the Immigration Judge's underlying decision only if it influenced the BIA's determination. Ontunez–Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir.2002). We review the denial of a motion to reopen under “a highly deferential abuse-of-discretion standard.” Gomez–Palacios v. Holder, 560 F.3d 354, 358 (5th Cir.2009). We must uphold the BIA's decision unless it was “capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir.2006) (internal quotation marks omitted). Although we review questions of law de novo, we “accord[ ] deference to the BIA's interpretation of immigration statutes unless the record reveals compelling evidence that the BIA's interpretation is incorrect.” Gomez–Palacios, 560 F.3d at 358 (citing Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.1997)).

III.

1. Rodriguez–Manzano's Initial Motion To Reopen

Rodriguez–Manzano argues that the BIA abused its discretion by denying his initial motion to reopen. In 1988, when the Immigration Judge ordered Rodriguez–Manzano deported, Section 1252(b) required an alien seeking to reopen an in absentia deportation proceeding to demonstrate “reasonable cause” for failing to attend the previous hearing.⁴ Williams–Igwonobe v. Gonzales, 437 F.3d 453, 455 (5th Cir.2006) (observing that where an alien seeks to open a deportation hearing conducted under Section 1252(b) where the immigration judge reached the merits of the alien's claim for relief, the reasonable cause standard applies).⁵ Ineffective assistance of counsel can justify reopening deportation proceedings if the alien (1) provides an affidavit attesting to the relevant facts,...