Ortega–marroquin v. Holder

• Decision Date: 23 May 2011
• Docket Number: No. 10–1846.,10–1846.
• Citation: 640 F.3d 814
• Parties: Daniel Rolando ORTEGA–MARROQUIN, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.American Immigration Council; National Immigration Project of the National Lawyers Guild, Amici on Behalf of Petitioner.
• Court: U.S. Court of Appeals — Eighth Circuit

640 F.3d 814

Daniel Rolando ORTEGA–MARROQUIN, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.American Immigration Council; National Immigration Project of the National Lawyers Guild, Amici on Behalf of Petitioner.

No. 10–1846.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 17, 2011.Filed: May 23, 2011.

[640 F.3d 815]

Brian J. Blackford, argued, Omaha, NE, for petitioner.Christopher C. Fuller, argued, Washington, DC, for respondent.Trina Realmuto, argued, Boston, MA, for amicus in support of petitioner National Immigration Project of National Lawyers Guild.Beth Werlin, Washington, DC, on the amicus brief in support of petitioner American Immigration Council.

[640 F.3d 816]

Before SMITH, GRUENDER, and BENTON, Circuit Judges.BENTON, Circuit Judge.

Daniel Rolando Ortega–Marroquin (“Ortega”) appeals from a final order of removal by the Board of Immigration Appeals. He seeks review of the Board's decision to reverse itself by granting the government's motion for reconsideration and vacating the Board's prior decision (that had allowed Ortega to reopen his case). Having jurisdiction under 8 U.S.C. § 1252(a)(1), this court remands for further proceedings.

I.

Ortega, a native of Guatemala, illegally entered the United States in April 1992. In June, he formally requested asylum in the United States (claiming past persecution by gangs of guerillas), which was denied. In February 2006, the Department of Homeland Security issued a “Notice to Appear” in immigration court, charging him with illegally entering the United States. In the removal proceedings, Ortega renewed his asylum application and in 2007 requested both withholding and cancellation of removal with the aid of his attorney, Subhash Chandra.

At a hearing in February 2009, Ortega was represented by Robert Wees, a member of Chandra's firm. With permission of the immigration judge, Wees filed an amended cancellation-of-removal application (changing the addresses and updating other information from the application filed by Chandra). The immigration judge issued an oral decision denying Ortega's claims for asylum, withholding of removal, and cancellation of removal. The immigration judge found that Ortega had satisfied the continuous-physical-presence and good-moral-character requirements for cancellation, had committed no disqualifying crime, but failed to demonstrate that his qualifying relatives (his two U.S.-citizen children) would suffer exceptional and extremely unusual hardship as a result of his removal. See Immigration and Nationality Act § 240A(b); 8 U.S.C. § 1229b(b). The immigration judge found that Ortega's children had no significant medical issues. The immigration judge granted Ortega 60 days to depart the United States voluntarily in lieu of removal.

Ortega appealed to the Board. On June 22, 2009, it affirmed the immigration judge's decision in all respects, again granting Ortega 60 days to depart voluntarily. On July 23, 2009, Ortega filed a petition for review of the Board's decision with this court (No. 09–2740). He filed pro se and in forma pauperis with the help of a “notario.” ¹ In the petition, Ortega argued that his former counsel Chandra was ineffective because Chandra knew but omitted in the cancellation-of-removal application that Ortega's children suffer serious medical conditions, and in fact told Ortega that unless his children were on their death beds, medical evidence was not worth submitting. Ortega claims Chandra's error was perpetuated by Wees at the removal hearing and in the appeal to the Board. According to Ortega, his two U.S.-citizen children suffer from various conditions: lupus, a heart defect, a potentially

[640 F.3d 817]

cancerous eye tumor, recurrent bronchitis and asthma attacks, and severe clinical depression.

In August 2009, this court denied a stay of removal. See Ortega–Marroquin v. Holder, No. 09–2740 (8th Cir. Aug.20, 2009) (Order) (ECF/PACER electronic docket). While Ortega's petition for review of his asylum and withholding-of-removal claims was pending with this court, Homeland Security took Ortega into custody on October 28, 2009. While still in the United States, he filed an “emergency motion” for a stay of removal with this court, which was denied on November 6, 2009. See Ortega–Marroquin v. Holder, No. 09–2740 (8th Cir. Nov.6, 2009) (Order) (ECF/PACER electronic docket).

On November 23, 2009, now aided by his current counsel, Ortega filed an (untimely) motion to reopen his case with the Board, asking it to stay his removal pending adjudication of the motion. Ortega argued that his case should be reopened because of the ineffectiveness of prior counsel, providing new documentation of his children's health issues. Ortega acknowledged that under 8 U.S.C. § 1229a(c)(7)(C)(i), he should have filed the motion to reopen within 90 days after the Board's order dismissing his appeal (June 22, 2009). However, Ortega argued that his motion to reopen was timely under the doctrine of equitable tolling, because he relied on his “notario,” whose advice led him to file a pro se petition for review (on the ineffectiveness grounds) within the 90–day time limit in this court instead of with the Board. Further, once he realized his mistake, he hired current counsel and promptly filed the motion to reopen with the Board.

On November 24 (the next day), the Board denied Ortega's request for a stay of removal, finding little likelihood it would grant the motion to reopen. On December 17, Homeland Security removed Ortega to Guatemala.

Unaware that Ortega had been removed, the Board, on February 1, 2010, exercised its sua sponte reopening authority and granted Ortega's untimely motion to reopen his case. The Board said that “given all the circumstances presented, including the unrebutted representations that former counsel told the respondent he need not bother presenting evidence regarding his children's medical conditions, the particular situation of this family, and the lack of opposition from the Department of Homeland Security, we will grant this motion under our sua sponte authority.” While noting that Ortega sought to equitably toll the filing deadline for a motion to reopen, the Board did not rule on this issue; the basis of the grant was the Board's sua sponte authority.

On February 12, the government moved for reconsideration, informing the Board that Ortega had been removed in December, before the Board reopened his proceedings. The government argued that because Ortega was no longer in the United States, the Board could not rule on his motion to reopen, due to the departure bar in the immigration regulations, 8 C.F.R. § 1003.2(d): “Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion.”

On March 19, the Board granted the government's motion, vacated its prior decision to sua sponte reopen Ortega's case, and denied his motion to reopen. The Board determined: “As the respondent was removed subsequent to filing the motion to reopen, his departure resulted in the withdrawal of that motion.” The Board rejected as non-binding authority in

[640 F.3d 818]

this circuit Ortega's invocation of a Ninth Circuit case holding that involuntary removal by the government does not...