Hernandez-Moran v. Gonzales

• Decision Date: 20 May 2005
• Docket Number: No. 04-1317.,04-1317.
• Citation: 408 F.3d 496
• Parties: Luciano HERNANDEZ-MORAN, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

408 F.3d 496

Luciano HERNANDEZ-MORAN, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.

No. 04-1317.

United States Court of Appeals, Eighth Circuit.

Submitted: February 14, 2005.

Filed: May 20, 2005.

Miryam Antunez De Mayolo, Waterloo, IA, for appellant.

James A. Hunolt, Dept. of Justice, Washington, D.C, for appellee.

Before LOKEN, Chief Judge, RILEY, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Luciano Hernandez-Moran appeals from the Board of Immigration Appeals ("BIA") denial of his motion to reopen. For reversal, Hernandez argues that his Fifth Amendment due process rights were violated because his counsel was ineffective. We affirm.

I. Background

Hernandez-Moran was a 66-year-old citizen of El Salvador who had been living in the United States for 34 years. He only speaks Spanish, has no convictions, and has three adult children who are permanent residents of the United States. Hernandez-Moran applied for and obtained temporary residence status under the Special Agricultural Worker Program. Later, the Immigration and Naturalization Service terminated his temporary residence status for failure to submit certain requested evidence.¹ Hernandez-Moran was subsequently charged with removal.

At the hearing, Hernandez-Moran, represented by attorney Opeolu Banwo, admitted to removability but indicated that he intended to apply for relief from deportation through the registry,² as well as for cancellation of removal. The immigration judge (IJ) set a two-month deadline for Hernandez-Moran to file his application for relief. Banwo failed to either file an application or request an extension of time to file, claiming that he had not obtained all of the supporting documentation. At a calendar hearing, the IJ determined that Hernandez-Moran's application for relief had been abandoned. During that hearing, Banwo admitted his failure to file Hernandez-Moran's application for relief. The hearing was not translated into Spanish and although the IJ granted Hernandez-Moran voluntary departure, the IJ failed to inform him of this.

Following the calendar hearing, Banwo had no further contact with Hernandez-Moran. However, Banwo appealed Hernandez-Moran's case to the BIA, which administratively closed the case to allow him to apply under the Temporary Protected Status Program. The BIA's decision was mailed to Banwo's office and to Hernandez-Moran's address of record. Neither Banwo nor the BIA had Hernandez-Moran's current address so he was never informed of the BIA's decision. No Temporary Protected Status Program application was filed on Hernandez-Moran's behalf. As a result, DHS filed a motion to reinstate removal proceedings and notified Banwo. The BIA affirmed the IJ's decision that Hernandez-Moran abandoned his application and granted voluntary departure. Again the BIA's order was mailed to Hernandez-Moran's address of record.

Subsequently, a "Notice to Obligor to Deliver Alien" was sent to Hernandez-Moran's current address. Following receipt of the notice, Hernandez-Moran with new counsel, filed a motion to reopen removal proceedings and for a stay of removal. He filed the motion more than 90 days after the BIA's final decision, arguing ineffective assistance of counsel. Hernandez-Moran alleged that he informed Banwo about his ineffective assistance claim and gave Banwo an opportunity to respond. With his motion, Hernandez-Moran submitted a letter of complaint to the state bar alleging that he and Banwo never communicated effectively because he spoke Spanish and Banwo did not. Hernandez-Moran also complained that he had no interpreter at the immigration proceedings.

The BIA granted Hernandez-Moran a stay but later denied his motion to reopen removal proceedings based on ineffective assistance of counsel, under Matter of Lozada, 19 I. & N. Dec. 637, 639(BIA), aff'd, 857 F.2d 10 (1st Cir.1988). Hernandez-Moran filed a petition for review and a motion to stay removal with this court. We granted a temporary stay of deportation but later vacated the stay.

II. Discussion

We review the BIA's denial of a motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 324, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Gebremaria v. Ashcroft, 378 F.3d 734, 738 (8th Cir.2004). Such motions are disfavored "because of the strong public interest in bringing litigation to a close, and because `[g]ranting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case.'" Id. at 737 (quoting INS v. Abudu, 485 U.S. 94, 108, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)). The party moving to reopen bears a heavy burden. Doherty, 502 U.S. at 323, 112 S.Ct. 719; Abudu, 485 U.S. at 110, 108 S.Ct. 904. "An abuse of discretion occurs if a decision is without rational explanation, departs from established policies, invidiously discriminates against a particular race or group, or where the agency fails to consider all factors presented by the alien or distorts important aspects of the claim." Feleke v. INS, 118 F.3d 594, 598 (8th Cir.1997) (holding in context of an asylum claim).

Hernandez-Moran argues that his first counsel, Banwo, was ineffective in not filing his petitions on time, violating his Fifth Amendment due process rights. Consequently, Hernandez-Moran contends that equitable tolling of the filing statute was appropriate, see Heideman v. PFL, Inc., 904 F.2d 1262, 1265-67 (8th Cir.1990), and the IJ abused his discretion in failing to apply equitable tolling. Hernandez-Moran also argues that he substantially complied with the requirements of Lozada and that the BIA's assertions that he made no attempt to bring an interpreter and failed to provide his most recent address to Banwo are unsupported conclusions. We disagree.

We believe that Hernandez-Moran's ineffective assistance of counsel claim fails under the Lozada requirements. Lozada requires that Hernandez-Moran: (1) submit an affidavit detailing the agreement between him and Banwo; (2) show that the allegations of ineffective assistance were communicated to Banwo and that Banwo was given an opportunity to respond; and (3) submit a statement as to whether a complaint was filed against Banwo with the disciplinary authority of the state bar. Lozada, 19 I. & N. Dec. at 639. Hernandez-Moran did not meet any...