Molina-Rojas v. Garland
| Decision Date | 06 December 2022 |
| Docket Number | 21-9510 |
| Parties | AMARILDO MOLINA-ROJAS; MARIELA REMIGIO-CARHUAMACA, Petitioners, v. MERRICK B. GARLAND, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Petition for Review
Before TYMKOVICH, PHILLIPS, and EID, Circuit Judges.
Petitioners Amarildo Molina-Rojas and Mariela Remigio-Carhuamaca are natives and citizens of Peru. An immigration judge (IJ) denied their applications for cancellation of removal and ordered them removed from the United States. The Board of Immigration Appeals dismissed their appeal from that ruling as untimely filed. They filed two sequential motions to reopen, both of which the Board denied.
Petitioners have now filed a petition for review. We dismiss the petition in part for lack of jurisdiction and, exercising jurisdiction under 8 U.S.C. § 1252(a)(1), deny the remainder of the petition.
Petitioners entered the United States without inspection or admission in 2003 and 2004. In 2013 and 2014, they were served with Notices to Appear charging them with removability. They conceded removability but submitted applications for cancellation of removal under 8 U.S.C. § 1229b. The IJ pretermitted Ms. Remigio-Carhuamaca's application because a forgery conviction rendered her statutorily ineligible for cancellation. The IJ denied Mr. Molina-Rojas's application because he failed to demonstrate his removal would cause Petitioners' daughter the exceptional and extremely unusual hardship necessary for cancellation.
Petitioners' appeal had to be filed with the Board on or before August 22, 2019, but they did not file it until August 26, 2019, four days late. On October 24, 2019, the Board summarily dismissed the appeal as untimely.
On November 25, 2019, Petitioners filed a "Motion To Reopen Summarily Dismissing The Appeal Due To Failure To Timely File." R. at 102. They stated that the attorney who represented them during removal proceedings told them he was going to file an appeal but left the law firm before doing so, left no forwarding address, and did not alert Petitioners or anyone at the firm. Petitioners obtained a new attorney at the same firm, but she was only able to file the appeal late.
On January 30, 2020, the Board denied the motion. The Board construed it as a motion for reconsideration of its summary dismissal of the appeal and denied it because Petitioners had not identified any error by the Board but instead had alleged the late appeal was due to "a set of errors and unforeseen circumstances within the law office" and had "not made a claim for ineffective assistance of counsel as required by Matter of Lozada, 19 I&N Dec. 637 (BIA 1988)." R. at 91.
On April 14, 2020, Petitioners filed with the Board a "Motion To Reconsider And Re-Open Based On Ineffective Assistance Of Counsel." R. at 62. They argued their appeal was late due to ineffective assistance of their first attorney and asserted they had now complied with the Lozada requirements. They also asked the Board to equitably toll the filing deadline for their appeal.
The Board denied the motion as untimely and number-barred because (1) it was not filed within 30 days of the January 30 decision, as 8 C.F.R. § 1003.2(b)(2) requires for motions to reconsider; and (2) a party "'may not seek reconsideration of a decision denying a previous motion to reconsider,'" R. at 3 (quoting § 1003.2(b)(2)). Alternatively, the Board determined that even if it were to reach the merits of the motion, Petitioners did not assert any error of law or fact in the Board's previous decision but instead argued the Board should take the appeal on certification because they were the victims of an ineffective attorney.[1] The Board found insufficient reason to do so given that (1) both of Petitioners' attorneys worked at the same firm, and the IJ's decision was sent there; (2) current counsel was aware of the final hearing and admitted she lacked the necessary credentials to represent Petitioners; and (3) the record showed there was no fee agreement in place for former counsel or the firm to file an appeal with the Board.
Thereafter, Petitioners filed a petition for review with this court.
We first address Petitioners' persistent reference to the motions they filed with the Board as motions to reopen. The Board construed them as motions for reconsideration, and rightly so. In its order dismissing the appeal as untimely, the Board instructed Petitioners that they could challenge its ruling only by filing a motion to reconsider with the Board; for challenges to other findings or to reopen their case, they had to file a motion to reopen with the Immigration Court. In support, the Board cited In re Mladineo, which explains that the dismissal of an appeal as untimely renders "the attempted appeal . . . nugatory and the decision of the [IJ] remains undisturbed." 14 I. &N. Dec. 591, 592 (B.I.A. 1974). "If thereafter a motion is made to reopen or reconsider that decision, there appears to be no reason why the [IJ] should not adjudicate it, as he does in other cases where there was no appeal from his prior order." Id. Thus, the two motions Petitioners filed with the Board necessarily were motions for reconsideration of the Board's orders because there had been no appeal that could be reopened. Further, a motion for reconsideration concerns "errors of fact or law in the prior Board decision," § 1003.2(b)(1), which is what Petitioners' motions alleged-Board error in dismissing the appeal as untimely.
With this in mind, we turn to Petitioners' arguments. We review the Board's denial of a motion for reconsideration "for an abuse of discretion." Rodas-Orellana v. Holder, 780 F.3d 982, 990 (10th Cir. 2015). The Board "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." Id. (internal quotation marks omitted).
Petitioners do not directly challenge the Board's denial of the second motion for reconsideration as untimely and number-barred. Instead, they posit that their two motions for reconsideration were effectively one motion because, in denying the first motion, the Board "demanded that [they] comply with . . . Lozada," and they did so in their second motion. Pet'rs' Br. at 14. This, they claim, shows they diligently pursued a Lozada claim, so the Board should have considered it. They add that the Board should have equitably tolled the time to file the appeal based on ineffective assistance of counsel given that they eventually complied with the Lozada requirements. These arguments fail for several reasons.
First, Petitioners cite no authority for their novel theory that sequential motions for reconsideration should be viewed as one motion, and we reject it.
Second their diligence argument is based on a regulatory provision concerning motions to reopen, § 1003.2(c)(3)(v)(B), which makes the time and number limitations on motions to reopen inapplicable if the Board finds "[t]he movant exercised diligence in pursuing the motion to reopen." But as we have already explained, the Board correctly treated Petitioners' motions as motions to reconsider, not as motions to...
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