Neves v. Holder, No. 07-1091.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtPER CURIAM.
Citation613 F.3d 30
PartiesKelmer Da Silva NEVES, Petitioner, v. Eric H. HOLDER, Jr., * Attorney General, Respondent.
Docket NumberNo. 07-1091.
Decision Date21 July 2010

613 F.3d 30

Kelmer Da Silva NEVES, Petitioner,
v.
Eric H. HOLDER, Jr., * Attorney General, Respondent.

No. 07-1091.

United States Court of Appeals,First Circuit.

Submitted June 1, 2009.
Decided July 21, 2010.


613 F.3d 31

COPYRIGHT MATERIAL OMITTED.

613 F.3d 32

Saher Joseph Macarius with whom Audrey Botros and Law Offices of Saher Joseph Macarius, were on brief for petitioner.

Stacey I. Young, Trial Attorney, Office of Immigration Litigation, Civil Division, with whom Tony West, Assistant Attorney General, and Joshua E. Braunstein, Assistant Director, Office of Immigration Litigation, were on brief for respondent.

Before LYNCH, Chief Judge, TORRUELLA and EBEL, ** Circuit Judges.

PER CURIAM.

Kelmer Da Silva Neves, a native and citizen of Brazil, petitions for review of the Board of Immigration Appeals's (BIA) December 14, 2006, denial of his second motion to reopen proceedings. The government's efforts to remove him from the country started in 1999. We deny the petition.

Neves's second motion to reopen was time- and number-barred under 8 U.S.C. § 1229a(c)(7)(A), (C)(i) and 8 C.F.R. § 1003.2(c)(2). Save for several exceptions not at issue here, those provisions allow an alien to file only one motion to reopen proceedings based on new facts and require the alien to do so within ninety days after the final order of removal. Neves argued before the BIA that he was nonetheless entitled to equitable tolling of these filing requirements, or in the alternative that the BIA should sua sponte reopen proceedings, because of ineffective assistance of counsel. The BIA found that Neves was ineligible for equitable tolling because he had failed to show he had exercised due diligence in pursuing his

613 F.3d 33

claim and declined to exercise its sua sponte authority to reopen.

This court initially denied Neves's petition on the ground then urged by the government: that the BIA's finding of a lack of due diligence, on which the denial primarily rested, was a factual determination that federal courts lacked jurisdiction to review. See Da Silva Neves v. Holder, 568 F.3d 41, 42-43 (1st Cir.2009) (per curiam). This court further held that it lacked jurisdiction to review the BIA's discretionary denial of sua sponte reopening. Id. at 43. Neves filed a petition for a writ of certiorari in the Supreme Court.

While Neves's petition was pending, the Supreme Court decided Kucana v. Holder, --- U.S. ----, 130 S.Ct. 827, --- L.Ed.2d ---- (2010), in which it held that decisions on motions to reopen proceedings, like other proceedings made discretionary by regulation and not by statute, are generally subject to judicial review. Id. at 831, 840. In light of Kucana, in its reply brief to Neves's petition for writ of certiorari, the government abandoned its earlier jurisdictional position and recommended that the case be granted, vacated, and remanded. The Supreme Court granted certiorari and vacated and remanded the case to this court “for further consideration in light of Kucana v. Holder. Neves v. Holder, --- U.S. ----, 130 S.Ct. 3273, ---L.Ed. ----, 2010 WL 1946733, at *1 (2010) (mem.).

We hold that we have jurisdiction to review the BIA's decision to deny equitable tolling of the time and number limitations governing Neves's second motion to reopen but not to review the BIA's refusal to exercise its sua sponte authority to reopen. Even assuming arguendo that equitable tolling of these requirements is available, the BIA did not abuse its discretion in denying the motion. The BIA did not abuse its discretion in finding that Neves failed to show he had exercised due diligence in pursuing reopening, and substantial evidence supported that factual determination.

I.

Neves entered the United States as a B-2 visitor in 1999 and overstayed. On December 2, 1999, the Immigration and Naturalization Service (INS) issued a Notice to Appear. Neves conceded removability and applied for asylum and withholding of removal, claiming political persecution.

On November 1, 2000, an Immigration Judge (IJ) denied Neves's application for asylum and withholding of removal, finding that he was not credible on his claims of past persecution in Brazil and that his claims did not amount to persecution in any event. The IJ found Neves ineligible for voluntary departure. At this point, Neves was being represented by Joarez Reis, who had falsely represented himself as being a licensed attorney. Reis filed a notice of appeal to the BIA, and he listed as the forwarding address for correspondence a post office box that Reis had rented and that Reis had stopped checking when he fled criminal prosecution in Massachusetts. The BIA sent notice to that address.

Neves hired John Dvorak as his new attorney in June 2001, but Dvorak did not file an appearance until April 2002. On September 25, 2001, the BIA dismissed Neves's appeal as moot. Specifically, because the BIA was unable to reach Neves by mail at the address Reis had given the court, the BIA concluded that Neves's appeal had apparently been abandoned.

Nearly two years later, on August 21, 2003, Neves filed his first motion to reopen, requesting reconsideration of the BIA's September 2001 decision and reinstatement of voluntary departure. At this point, Neves was represented by yet another

613 F.3d 34

attorney, Gary Yerman. Neves acknowledged that his first motion to reopen was untimely. Neves argued that the BIA should nonetheless consider the motion because the abandonment of his appeal by Reis and the delay in filing his motion to reopen were caused by the ineffective assistance of Neves's former representatives, Reis and Dvorak. Neves also admitted that he had learned of the BIA's prior order in August 2002 but waited another year to file his first motion to reopen.

On December 3, 2003, less than four months later, the BIA denied this motion as untimely and held that Neves was ineligible for equitable tolling. In addition to rejecting Neves's ineffective assistance claim, the BIA found that Neves had not exercised due diligence in pursuing his claim. A year had elapsed between August 2002, when Neves acknowledged he had learned of the BIA's September 2001 decision, and August 2003, when Neves filed his motion to reopen. The denial of this first motion to reopen was not the subject of a timely petition for review and is not before us.

Two and a half years later, on June 30, 2006, Neves filed a second motion to reopen proceedings, seeking readjustment of status under section 245(i) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1255(i). Now represented by another new attorney, Neves argued that the time and number limitations on his second motion should be equitably tolled, even though the motion was otherwise time- and number-barred, because of attorney Yerman's deficient performance in handling Neves's first motion to reopen. 1 Neves further claimed that he had exercised due diligence by consistently contacting Yerman between 2003 and 2006 for updates on the status of his first motion to reopen. Neves said he was informed by one of Yerman's employees that the BIA might take years to issue its decision and that he should be patient. He provided no independent corroboration of his assertions. Neves claimed he only discovered in early June 2006 that the BIA had denied his first motion to reopen in 2003.

On December 14, 2006, less than six months later, the BIA denied this second motion to reopen as time- and number-barred and found Neves ineligible for equitable tolling. Though the BIA found that Neves had substantially complied with the requirements to show ineffective assistance of counsel by Yerman, it also found that Neves had failed to demonstrate he had exercised due diligence in pursuing his claim. Neves, the BIA found, was unable to provide the dates or details of when he contacted Yerman from 2003 to 2006 or to provide “sufficient specific, relevant information to corroborate his generalized assertion of due diligence.” The BIA also declined to sua sponte reopen the motion. This petition followed.

II.
A. Jurisdiction

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the INA by, inter alia, explicitly identifying several immigration matters “not subject to judicial review.” 8 U.S.C. § 1252(a)(2); Kucana, 130 S.Ct. at 828. Insulated matters include any...

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59 practice notes
  • Mendiola v. Holder, No. 12-9570
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 22 Agosto 2014
    ...of our sister circuits, see, e.g., Bi Ying Lian v. U.S. Att'y Gen., 546 F. App'x 917, 919 (11th Cir. 2013) (per curiam); Neves v. Holder, 613 F.3d 30, 34-35 (1st Cir. 2010) (per curiam); Gashi v. Holder, 382 F. App'x 21, 22-23 (2d Cir. 2010) (per curiam); Ozeiry v. Att'y Gen. of U.S., 400 F......
  • Thompson v. Barr, No. 18-1823
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 21 Mayo 2020
    ...F.3d 184, 188 (1st Cir. 2018) ; Ramírez-Matías v. Sessions, 871 F.3d 65, 68 (1st Cir. 2017) ; Guerrero, 766 F.3d at 126 ; Neves v. Holder, 613 F.3d 30, 35 (1st Cir. 2010). Still, we have never decisively answered the questions presented here: whether this Court has jurisdiction 959 F.3d 481......
  • Pineda v. Skinner Servs., Inc., Civil Action No. 16-12217-FDS
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 28 Septiembre 2020
    ...for parties who were prevented from complying with them through no fault or lack of diligence of their own." Neves v. Holder, 613 F.3d 30, 36 (1st Cir. 2010). A party seeking equitable tolling "bears the burden of establishing two elements: (1) that he has been pursuing his rights diligentl......
  • Filler v. Hancock Cnty., 1:15-cv-00048-JAW
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • 27 Enero 2016
    ...tolling, a "rare remedy to be applied in unusual circumstances, not a cure-all for an entirely common state of affairs." Neves v. Holder, 613 F.3d 30, 36 (1st Cir. 2010). To qualify a litigant "bears the burden to establishing two elements: (1) that he has been pursuing his rights diligentl......
  • Request a trial to view additional results
61 cases
  • Mendiola v. Holder, No. 12-9570
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 22 Agosto 2014
    ...of our sister circuits, see, e.g., Bi Ying Lian v. U.S. Att'y Gen., 546 F. App'x 917, 919 (11th Cir. 2013) (per curiam); Neves v. Holder, 613 F.3d 30, 34-35 (1st Cir. 2010) (per curiam); Gashi v. Holder, 382 F. App'x 21, 22-23 (2d Cir. 2010) (per curiam); Ozeiry v. Att'y Gen. of U.S., 400 F......
  • Thompson v. Barr, No. 18-1823
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 21 Mayo 2020
    ...F.3d 184, 188 (1st Cir. 2018) ; Ramírez-Matías v. Sessions, 871 F.3d 65, 68 (1st Cir. 2017) ; Guerrero, 766 F.3d at 126 ; Neves v. Holder, 613 F.3d 30, 35 (1st Cir. 2010). Still, we have never decisively answered the questions presented here: whether this Court has jurisdiction 959 F.3d 481......
  • Pineda v. Skinner Servs., Inc., Civil Action No. 16-12217-FDS
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 28 Septiembre 2020
    ...for parties who were prevented from complying with them through no fault or lack of diligence of their own." Neves v. Holder, 613 F.3d 30, 36 (1st Cir. 2010). A party seeking equitable tolling "bears the burden of establishing two elements: (1) that he has been pursuing his rights diligentl......
  • Filler v. Hancock Cnty., 1:15-cv-00048-JAW
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • 27 Enero 2016
    ...tolling, a "rare remedy to be applied in unusual circumstances, not a cure-all for an entirely common state of affairs." Neves v. Holder, 613 F.3d 30, 36 (1st Cir. 2010). To qualify a litigant "bears the burden to establishing two elements: (1) that he has been pursuing his rights diligentl......
  • Request a trial to view additional results

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