Fustaguio Do Nascimento v. Mukasey

• Decision Date: 01 December 2008
• Docket Number: No. 07-2608.,07-2608.
• Parties: Luzia FUSTAGUIO DO NASCIMENTO, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

549 F.3d 12

Luzia FUSTAGUIO DO NASCIMENTO, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

No. 07-2608.

United States Court of Appeals, First Circuit.

Submitted September 5, 2008.

Decided December 1, 2008.

Jeffrey B. Rubin, on brief for petitioner.

Patrick J. Glen, Attorney, Office of Immigration Litigation, Civil Division, Department of Justice, Gregory G. Katsas, Acting Assistant Attorney General, Civil Division, and Emily Anne Radford, Assistant Director, on brief for respondent.

Before TORRUELLA, BOUDIN, Circuit Judges, and SCHWARZER,^* District Judge.

TORRUELLA, Circuit Judge.

Petitioner Luzia Fustaguio do Nascimento ("Oliveras," her married surname) is a Brazilian citizen who entered the United States without inspection and was subsequently placed in deportation proceedings. She did not attend her deportation hearing, allegedly as a result of her attorney's ineffective assistance, and was ordered deported in absentia. More than eleven years after the deportation hearing, Oliveras seeks judicial review of the denial by the Board of Immigration Appeals ("BIA") of her second motion to reopen her deportation proceedings. After careful consideration, we deny the petition for judicial review.

I. Background

The facts are essentially undisputed.

Oliveras is a Brazilian citizen who entered the United States without inspection by crossing the Mexican border in November 1994. On March 25, 1996, the Immigration and Naturalization Service or "INS" (the predecessor entity to the United States Citizenship and Immigration Services, or "USCIS") arrested Oliveras during a raid at her place of work and placed her in deportation proceedings. On that day Oliveras was personally served with an Order to Show Cause,¹ which posited that Oliveras was removable. The Order highlighted the importance of promptly notifying the INS about any change of address. The Order was served in English, a language Oliveras did not understand.

Shortly after her arrest, Oliveras hired attorney David Luff to represent her in her immigration proceedings. She paid him approximately $800 in legal fees. When Oliveras moved to a new address she notified Attorney Luff, who indicated that he would file the appropriate change of address forms with the INS. He never did.

Shortly thereafter, the INS mailed two Notices of Hearing via certified mail to Oliveras' old address. Both were returned by the U.S. Postal Service as "attempted, not known."² She never learned of her hearing date and consequently did not attend. Oliveras' hearing was held on March 6, 1997. Due to her absence, the immigration judge ("IJ") entered an in absentia deportation order against Oliveras on March 7, 1997. Notice of the deportation order was sent via certified mail to Oliveras' old address. This time, the mailed notice was not returned. However, Oliveras states that she never received it. She did not appeal the order.

Attorney Luff never contacted Oliveras regarding the deportation order or her immigration case. After some period of time, Oliveras contacted an individual named Lee Gillitlie, who knew Attorney Luff, and asked him to make some inquiries regarding her immigration case. Gillitlie learned that Oliveras had been ordered deported in absentia and that Attorney Luff had taken no action regarding her case.³ Oliveras contends that Gillitlie never shared this information with her.

On July 28, 1997, Oliveras married an American citizen to whom she remains married to this day. On April 17, 2001, Oliveras' husband filed a petition to adjust Oliveras' immigration status. As a part of the status adjustment process, on October 11, 2001, Oliveras attended an interview at which she was told that, although she was prima facie eligible for adjustment of status, her petition could not be granted because an order of deportation had been entered against her.

Thereafter, Oliveras hired a second attorney who, on November 4, 2002, filed a motion to reopen Oliveras' immigration proceedings on grounds that she had been denied effective assistance of counsel by Attorney Luff. The Immigration Judge ("IJ") denied this motion on December 20, 2002, finding that it was time-barred. Oliveras appealed this denial to the BIA, who on February 5, 2004, affirmed the IJ's order. Specifically, the BIA found that Oliveras had failed to satisfy the requirements for the establishment of an ineffective assistance of counsel claim under BIA precedents in In re Assaad, 23 I. & N. Dec. 553 (BIA 2003) and Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Oliveras did not seek judicial review.

Three years later, on March 30, 2007, Oliveras' fourth lawyer filed a second motion to reopen Oliveras' immigration proceedings directly with the BIA. In that petition, Oliveras alleged that she had fixed the shortcomings of her ineffective assistance claim by fulfilling all of the Lozada requirements.⁴ The BIA nonetheless denied this motion on September 27, 2007, finding that it was both time and number-barred. The BIA also held that equitable tolling did not apply to Oliveras' second petition because Oliveras had failed to exercise due diligence. Oliveras now seeks judicial review.

II. Discussion

A. Standard of Review

Motions to reopen removal proceedings are disfavored as contrary to the "compelling public interests in finality and the expeditious processing of proceedings." Guerrero-Santana v. Gonzales, 499 F.3d 90, 92 (1st Cir.2007) (quoting Raza v. Gonzáles, 484 F.3d 125, 127 (1st Cir.2007)). Consistent with this policy, we review the BIA's denial of a motion to reopen under a deferential abuse of discretion standard. Kechichian v. Mukasey, 535 F.3d 15, 22 (1st Cir.2008). Accordingly, we will uphold the denial of a motion to reopen unless we conclude that the BIA either committed a material error of law or exercised its authority in an arbitrary, capricious or irrational manner. Id. In carrying out this inquiry, we review the BIA's findings of law de novo, granting due deference to the BIA's reasonable interpretation of the statutes and regulations within its purview. See Lin v. Mukasey, 521 F.3d 22, 26 (1st Cir.2008); Rotinsulu v. Mukasey, 515 F.3d 68, 72 (1st Cir.2008).

B. Motion to Reopen

In general, the right of an alien in removal proceedings to file a motion to reopen is limited both numerically and temporally. Guerrero-Santana, 499 F.3d at 93. Thus, an alien may ordinarily file only one motion to reopen a removal proceeding and that motion must be filed within ninety days of the issuance of the final administrative decision, in this case, the final deportation order. Id.; see also 8 C.F.R. § 1003.23(b)(1). Because the present petition involves Oliveras' second motion to reopen, which was filed more than ten years after the issuance of the final deportation order against her, Oliveras relies on statutory exceptions to the filing deadline, and alternatively, on due process and equitable tolling arguments to support her contention that the BIA abused its discretion in denying her motion. We are not persuaded.

1. Exceptional Circumstances

Oliveras argues that the time and numerical limitations provisions applicable to her case are those provided by 8 C.F.R. § 1003.23(b)(4)(iii)(A), which govern orders entered in absentia, rather than the general provisions at 8 C.F.R. § 1003.23(b)(1). However, for the reasons described herein, even if applicable, this provision would not sufficiently extend the filing period as to make timely the motion to reopen at issue in this appeal.

Despite the general rule, the regulations contain, among other exceptions, an exception to the ninety day filing deadline for orders entered in absentia. 8 C.F.R. at § 1003.23(b)(4). That exception provides that if the order of deportation was entered in absentia and the alien shows that the failure to appear was due to "exceptional circumstances beyond the control of the alien," she may file her motion to reopen within an extended 180-day period from the date of issuance of the order. Id. at § 1003.23(b)(4)(iii)(A)(1); see also Guerrero-Santana, 499 F.3d at 93. Moreover, there is no numerical limit on the number of motions to reopen an alien may file pursuant to this provision. See 8 C.F.R. § 1003.23(b)(4)(iii)(D). Oliveras relies on these provisions to argue that the ineffective assistance of her first attorney, in failing to change her address on file with the INS or notify her of the date of her deportation hearing, constitutes "exceptional circumstances" that justified an extension of the time available to her to move to reopen her immigration proceedings.

This court has held that ineffective assistance of counsel may qualify as an "exceptional circumstance" for the purpose of applying section 1003.23(b)(4)(iii)(A). See Beltre-Veloz v. Mukasey, 533 F.3d 7, 10 (1st Cir.2008); Saakian v. INS, 252 F.3d 21, 25 (1st Cir.2001). We will assume, without deciding, that Attorney Luff's conduct constituted assistance sufficiently ineffective to qualify as an exceptional circumstance. However, even if Oliveras showed exceptional circumstances, the regulation only allows 180-days from issuance of the in absentia deportation order to file a motion to reopen the proceedings. Thus, even affording Oliveras the benefit of the extended 180-day filing period for motions to reopen issued in absentia, Oliveras' second motion to reopen, which is the one at issue in this appeal, while not number-barred, would nevertheless still be time-barred. This motion was filed on March 30, 2007, ten years after Oliveras was ordered deported in absentia—well past the conclusion of section 1003.23(b)(4)(iii)(A)'s extended 180-day limitations period. Therefore, even if Oliveras was correct that section 1003.23(b)(4)(iii)(A) governs her case, the BIA was nevertheless well within its discretion in denying Oliveras' clearly untimely motion.

2. Due Process Violation

Oliveras alternatively argues that her due process right...