Cekic v. I.N.S.
| Decision Date | 18 January 2006 |
| Docket Number | Docket No. 03-4271(CON).,Docket No. 03-4270(L). |
| Citation | 435 F.3d 167 |
| Parties | Edin CEKIC and Samka Cekic, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Fokol Braha, Joshi & Associates, PC, New York, NY, (Sunit K. Joshi, on the brief), for Petitioners.
Michael E. Hegarty, Assistant United States Attorney, for William J. Leone, Acting United States Attorney for the District of Colorado, Denver, CO, (Hamid M. Khan, on the brief), for Respondent.
Before: CARDAMONE, McLAUGHLIN, and POOLER, Circuit Judges.
Edin and Samka Cekic, and their daughter, Ines, petition for review of the Board of Immigration Appeals' (the "BIA") affirmance of a denial of their motion to reopen their removal proceedings. Because we find that the BIA did not abuse its discretion in finding that the Cekics failed to act with reasonable diligence, we deny the petition for review.
The Cekics are citizens and nationals of Bosnia, a republic of the former country of Yugoslavia. They are Moslem. Following the ascendency of Slobodan Milosevic to the office of President of Serbia in 1989, the political climate in Yugoslavia became untenable for members of the Bosnian minority, particularly those of the Islamic faith. Consequently, the Cekics fled Yugoslavia and gained entry into the United States in 1994 by fording the Rio Grande river outside El Paso, Texas. The Cekics then traveled to New York City, by way of Dallas.
In May 1994, the Cekics applied for asylum and withholding of removal based upon alleged persecution due to their religious beliefs. In March 1996, the Immigration and Naturalization Service (the "INS") issued to the Cekics an order to show cause why they should not be removed. They were ordered to appear before an Immigration Judge ("IJ") in New York City that June. At some point during the next three months, the Cekics relocated to Las Vegas, Nevada. On June 17, 1996, only two days before their scheduled hearing in New York City, the Cekics retained counsel. Unhappily, their attorney advised them that they need not attend the June 19 hearing because she would file a motion for change of venue to Nevada. Relying on this ill-conceived advice, the Cekics did not appear at the hearing.
On June 19, the IJ, not yet having received the motion for change of venue, went forward with the hearing and ordered that the Cekics be removed in absentia. When the IJ received the motion for change of venue on June 20, he denied it as moot. The Cekics' attorney later admitted to advising them not to attend the hearing and blamed the untimely filing of the motion on one of her "office runners," who failed to get the motion to Federal Express on time.
The Cekics' attorney, apparently without their knowledge, filed a timely motion to reopen their removal proceedings, which was denied in July 1996. The IJ concluded that the Cekics had not made the necessary showing of exceptional circumstances to excuse their failure to appear at the June 19 hearing. See 8 U.S.C. § 1229a(e)(1) (defining "exceptional circumstances"). The Cekics' attorney, again without their knowledge, appealed this decision to the BIA.
In November 1998, the BIA affirmed the IJ's denial of the Cekics' motion to reopen. The INS then sent the Cekics a letter notifying them of the 1996 order of removal. The Cekics claim that they did not become aware of the 1996 order of removal until they received this letter in 1998. During the period between the 1996 order and the 1998 letter, the Cekics were in contact with their attorney's secretary, who reportedly told them that their attorney was unavailable but "taking care of [their] case." These assurances satisfied the Cekics that their claims were being pursued. After they received the INS letter in 1998, the Cekics met with another attorney who declined to take their case.
Unbeknownst to the Cekics, they were granted Temporary Protected Status ("TPS") at some point in the late 1990s, presumably due to the efforts of their original attorney in Las Vegas. They were made aware of this status only when, in 2000, they received notice that it had expired.
In late 2002, almost four years from the date of the BIA's affirmance of the IJ's denial of their motion to reopen, the Cekics retained new counsel and filed an untimely motion to reopen their removal proceedings based upon ineffective assistance of counsel. The BIA acknowledged that the Cekics satisfied the evidentiary requirements for bringing such a claim, as set forth in In re Lozada, 19 I & N Dec. 637 (BIA 1988), but denied the motion to reopen, concluding that the Cekics did not exercise due diligence by waiting nearly four years after learning of the in absentia order of removal against them to file the motion.
The Cekics now petition this Court for review of the BIA's decision.
The Cekics contend that the BIA abused its discretion by denying their motion to reopen their removal proceedings because they received ineffective assistance of counsel, which they believe should have tolled the deadline for filing the motion. We cannot agree.
This court reviews the BIA's decision to affirm an IJ's denial of a motion to reopen for abuse of discretion. Iavorski v. INS, 232 F.3d 124, 128 (2d Cir.2000). The BIA abuses its discretion when its "decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements." Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir.2001) (citations omitted).
To be timely, a motion to reopen must be "filed not 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). However, because "[c]laims of ineffective assistance of counsel satisfy the general requirement that motions to reopen present `new facts' that are `material and [were] not available and could not have been discovered or presented at the former hearing,'" Iavorski, 232 F.3d at 129 (citing 8 C.F.R. § 3.23(b)(3) (2000) (recodified at 8 C.F.R. § 1003.23(b)(3) (2003))), filing deadlines for motions to reopen premised on ineffective assistance may be subject to an equitable toll. Tolling is available if the alien can demonstrate that (1) his counsel's conduct violated the alien's constitutional right to due process, and (2) the alien "has exercised due diligence in pursuing the case during the period the alien seeks to toll." Id. at 135.
Both prongs of this test must be met. Thus, no matter how egregiously ineffective counsel's assistance may have been, an alien will not be entitled to equitable tolling unless he can affirmatively demonstrate that he exercised reasonable due diligence during the time period sought to be tolled. See id.
In order to establish that counsel was ineffective, the Cekics must demonstrate (1) "that competent counsel would have acted otherwise," and (2) that they were "prejudiced by . . . counsel's performance." Rabiu v. INS, 41 F.3d 879, 882 (2d Cir.1994) (citation omitted). This Court uses its own...
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