Dawoud v. Holder

• Decision Date: 26 March 2009
• Docket Number: No. 08-1262.,08-1262.
• Citation: 561 F.3d 31
• Parties: Nicolas Hanna DAWOUD, Petitioner, v. Eric H. HOLDER, Jr.<SMALL><SUP>*</SUP></SMALL>, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

561 F.3d 31

Nicolas Hanna DAWOUD, Petitioner, v. Eric H. HOLDER, Jr.^*, Attorney General, Respondent.

No. 08-1262.

United States Court of Appeals, First Circuit.

Submitted December 5, 2008.

Decided March 26, 2009.

Saher J. Macarius, Audrey Botros and Law Offices of Saher J. Macarius, on brief for petitioner.

Gregory G. Katsas, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director and Gregory M. Kelch, Attorney, United States Department of Justice, on brief for respondent.

Before TORRUELLA, STAHL and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Nicholas Hanna Dawoud (Dawoud), a native and citizen of Lebanon, petitions for review of a decision of the Board of Immigration Appeals (BIA). The BIA — at the conclusion of languid proceedings notable for Dawoud's dilatory pursuit of his rights — denied Dawoud any relief on his motion to reopen based on ineffective assistance of counsel, and his request for a remand for an adjustment of status based on his marriage to a U.S. Citizen. Although Dawoud's case has not been free from irregularity, after careful consideration, we deny the petition.

Dawoud entered this country on April 17, 2002 as a non-immigrant admitted for business purposes, and was entitled to remain in the United States no later than June 16, 2002. Dawoud chose to remain past this date, and in due course, on January 9, 2003, the Department of Homeland Security (DHS) served him with a notice to appear. On April 9, 2003, Dawoud, appearing pro se, successfully sought a continuance of removal proceedings pending against him.

On June 2, 2003, Dawoud married Clotilde Sousa, a U.S. citizen. On June 26, 2003, pursuant to section 245(e) of the Immigration and Nationality Act, 8 U.S.C. § 1255(e), Ms. Sousa filed a Petition for Alien Relative (I-130 Petition) on behalf of Dawoud. At Dawoud's next hearing on November 12, 2003, again appearing pro se, Dawoud explained that he had recently married a U.S. citizen and requested a further continuance of all removal proceedings while his I-130 Petition was pending. Because he had "serious concerns as to the legitimacy and bona fides of the Respondent's marriage," the Immigration Judge ("IJ") instructed Dawoud to produce documentation in support of his wife's I-130 Petition and continued all proceedings until March 24, 2004 to provide Dawoud the opportunity to produce the relevant documents, but warned that no further continuances would be forthcoming.¹

In light of this turn of events, Dawoud retained the services of an attorney, Joseph Grimaldi, who agreed to represent Dawoud in his removal proceedings in exchange for two thousand dollars. Dawoud asserts that, at his first meeting with Grimaldi, Dawoud explained that the Immigration Judge requested documentation supporting his I-130 Petition, and Grimaldi led Dawoud to believe that he would gather the necessary documentation.

At the March 24 hearing, however, despite appearing to represent Dawoud, Grimaldi did not bring the requested documentation. Instead, Grimaldi moved for a continuance pending approval of the I-130 Petition, or in the alternative, voluntary departure to Lebanon. The IJ declined to continue the proceedings for any further length of time and ordered Dawoud removed to Lebanon. Dawoud, still acting through Grimaldi, filed a motion to reconsider and an emergency motion for a stay of removal on May 6, 2004.² The requested emergency stay of removal was granted on May 11, 2004, but on November 9, 2004 the IJ denied the motion to reconsider because, inter alia, (1) Dawoud failed to provide the documentation the IJ had previously requested, (2) the motion failed to raise any error of law or fact in the Court's prior decision, and (3) the motion was time-barred. 8 C.F.R. § 1003.23(b)(1). The IJ then vacated the stay and ordered Dawoud removed to Lebanon. On September 23, 2005, DHS approved the I-130 Petition Ms. Sousa filed on behalf of her husband, Dawoud.

In a later filed affidavit, Dawoud claimed that, after the motion to reconsider was denied, his attorney strongly discouraged him from filing an appeal of the IJ's March 24 decision, and failed to inform him of his ability to file a motion to reopen (or another motion to reconsider) based on ineffective assistance of counsel. On August 22, 2006, almost a year after the I-130 Petition was approved, with the aid of his present counsel Dawoud filed a motion to reopen based on ineffective assistance of counsel. Although Dawoud's motion to reopen included documents to support the allegation of ineffective assistance of counsel, the motion did not explain why he waited to file his motion to reopen until nearly eleven months after the approval of his I-130 Petition and over two years from the date of the IJ's initial decision to deny him further continuances.³

The IJ denied Dawoud's motion to reopen, after noting that the motion was time barred and did not fall within any exceptions to the ninety-day period for filing such motions.⁴ The IJ also considered the potential applicability of the doctrine of equitable tolling; in doing so, the IJ observed that Dawoud was not informed about time limitations for filing a motion to reopen based on ineffective assistance of counsel, and that DHS would "not be significantly prejudiced" if the motion to reopen were allowed. Nevertheless, the IJ concluded that even if equitable tolling were available in this circuit, Dawoud's delay of more than two years after an order of removal was entered against him, and nearly a year after DHS approved his I-130 Petition, was not consistent with the diligent pursuit of one's rights required for equitable tolling to apply.

Dawoud appealed the IJ's decision to the BIA, adding, in addition to his motion to reopen, a motion to remand based on the alleged new evidence of his approved I-130 Petition. He also attached a Form I-485 application to adjust his status based on the previously approved I-130 Petition. The BIA did not discuss, or provide any indication that it considered, its policy concerning motions to reopen for the purpose of permitting USCIS to adjudicate adjustment of status applications,⁵ but it nevertheless affirmed the IJ's denial of Dawoud's motion to reopen on timeliness grounds. The BIA further upheld the IJ's denial of equitable tolling because of Dawoud's lack of diligence in pursuing a motion to reopen based on ineffective assistance of counsel. The BIA therefore did not consider the merits of Dawoud's ineffective assistance of counsel claim. In addition, the BIA denied Dawoud's motion to remand for consideration of his I-485 adjustment of status application because Dawoud failed to offer any evidence that was not available and could not have been presented to the IJ during the March 24, 2004 hearing. The BIA further noted that granting Dawoud's motion for a remand would "undermine the Immigration Judge's decision denying [Dawoud's] request for a continuance, and would reward [Dawoud] for his delay in filing evidence previously requested by the Immigration Judge." Thus, the BIA concluded that granting a motion to remand would be "unjust" and therefore denied Dawoud all relief. This appeal timely followed.

The BIA's denial of a motion to reopen is reviewed for an abuse of discretion. Tandayu v. Mukasey, 521 F.3d 97, 100 (1st Cir.2008); Chen v. Gonzales, 415 F.3d 151, 153 (1st Cir.2005). The BIA's decision will be upheld "unless the complaining party can show that the BIA committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way." Tandayu, 521 F.3d at 100 (quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.2007)); see also Chen, 415 F.3d at 153 ("An abuse of discretion exists where the BIA misinterprets the law, or acts either arbitrarily or capriciously.") (quoting Toban v. Ashcroft, 385 F.3d 40, 45 (1st Cir.2004)).

Subject to exceptions not relevant in this case, motions to reopen removal proceedings are limited in two ways: aliens are limited to one such motion, and it must be filed within ninety days of the issuance of the final decision. 8 C.F.R. § 1003.23(b); see also Fustaguio Do Nascimento, 549 F.3d at 15-16. It is undisputed that Dawoud filed his motion to reopen more than ninety days after the IJ's March 24, 2004 decision became final. To avoid the inevitable finding that his motion to reopen was not timely, Dawoud argues that he is entitled to equitable tolling of the ninety-day period for filing a motion to reopen due to ineffective assistance of counsel.

Equitable tolling is a sparingly invoked doctrine, Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), used to excuse a party's failure to take an action in a timely manner, where such failure was caused by circumstances that are out of his hands, Salois v. Dime Sav. Bank, 128 F.3d 20, 25 (1st Cir.1997). We have not definitively decided "whether the BIA has either the authority or the obligation" to apply equitable tolling in the immigration context. Fustaguio Do Nascimento, 549 F.3d at 18 (quoting Guerrero-Santana v. Gonzales, 499 F.3d 90, 93 (1st Cir.2007)). It is nevertheless clear that even were equitable tolling available in such cases, we would require that one claiming equitable tolling show (1) lack of actual notice of a time limit; (2) lack of constructive notice of a time limit; (3) diligence in the pursuit of one's rights; (4) an absence of prejudice to a party opponent; and (5) the claimant's reasonableness in remaining ignorant of the time limit. Jobe v. INS, 238 F.3d 96, 100 (1st Cir.2001) (en banc); see also Chen, 415 F.3d at 154.

In the present case, the BIA concluded that in waiting over two years from the IJ's initial decision and approximately eleven months from the date his I-130 Petition was approved, Dawoud did not exercise diligence in the pursuit of his rights. Moreover, even before us, Dawoud has not explained this lengthy delay, or even identified the...