Zimmer's Books

by William K. Zimmer, in Immigration Matters

 

The procedural history, facts of record, holding and rationale in Eneugwu v. Garland (December 1, 2022) No. 20-61162 are as follows:

 

Case History

The Department of Homeland Security (“DHS”) issued Notices to Appear (“NTA”) to the Petitioners.

 

An Immigration Judge ordered the Petitioners removed from the United States.

 

The Petitioners did not appeal their removal orders.

 

The Petitioners filed a motion to reopen immigration court proceedings.

 

The Immigration Judge denied the Petitioners’ motion to reopen.

 

The Petitioners filed an appeal to the Board of Immigration Appeals (“BIA”).

 

The BIA dismissed the Petitioners’ appeal.

 

The Petitioners timely filed a petition for review.

 

 

Facts

• The Petitioners are natives and Citizens of Nigeria who were admitted to the United States as visitors with permission to remain until May 19, 1998.
• The Petitioners never departed from the United States.
• In March 2009, the DHS issued NTAs to the Petitioners, charging them as removable under section 237(a)(1)(B) of the Immigration and Nationality Act, as amended (“the Act”) as noncitizens who had remained in the United States for a time longer than permitted.
• In September 2012, the Petitioners’ first attorney filed an admission of the factual allegations set forth in each NTA, and conceded the charges of removability.
• In December 2012, the Petitioners’ first attorney moved to withdraw, upon being advised by the Petitioners that they were seeking other counsel.
• On April 2015, the Immigration Judge granted the first attorney’s motion to withdraw.
• The Petitioners then proceeded pro se (i.e. represented themselves) in immigration court proceedings on December 12, 2017, and on March 21, 2018.
• On March 21, 2018, the Petitioners filed individual applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).
• On March 21, 2018, upon receiving the Petitioners’ applications, the Immigration Judge provided the Petitioners with “biometrics instructions, advised [them] of the importance of having their fingerprints taken, advised them to request a fingerprint appointment right away, detailed, in depth, the process for requesting a fingerprint appointment, and warned [them] that the failure to have their fingerprints taken prior to the merits hearing would lead to their applications being denied.”
• At their final merits hearing on March 25, 2019, a second attorney appeared on behalf of the Petitioners.
• The Immigration Judge then asked the Petitioners if they had submitted their biometrics request to the address listed in the biometrics instructions previously provided to them.
• The Petitioners answered that they had not submitted their biometrics request because their attorney did not tell them to have their fingerprints taken.
• The Immigration Judge found no good cause for the Petitioners’ failure to provide their fingerprints, deemed their applications abandoned and ordered their removal to Nigeria.
• The Petitioners did not appeal.
• In August 2019, the Petitioners’ third attorney filed a motion to reopen on the grounds of ineffective assistance of counsel attributed to their second attorney because he had failed to remind them of the biometrics requirement and failed to submit their I-589 applications.
• The Immigration Judge found the Petitioners’ motions to reopen were untimely filed and that the Petitioners had failed to show the second attorney was ineffective or that his actions were prejudicial to their cases.
• The Immigration Judge also concluded the Petitioners had failed to establish an extraordinary circumstance that prevented timely filing of their motions and therefore equitable tolling does not apply to their untimely motions to reopen.
• Finally, the Immigration Judge found no basis to reopen the case sua sponte (legalese meaning by spontaneous self-urging or recommendation).
• The Petitioners then appealed denial of their motions to reopen to the BIA.
• The BIA (with one dissenting member) agreed with the Immigration Judge’s findings that the Petitioners had failed to establish the second attorney had provided ineffective assistance.  The BIA further agreed the Petitioners had failed to show exceptional circumstances justifying a sua sponte reopening.
• Consequently, the BIA dismissed the appeal.
• The Petitioners timely filed a petition for review.

 

Held

Petition for Review DISSMISSED

 

Rationale

The Petitioners asserted that:

1. the BIA had abused its discretion in affirming the Immigration Judge’s denial of their motion to reopen as untimely, because they had shown the deadline should have been equitably tolled based on ineffective assistance of counsel; and
2. BIA abused its discretion by refusing to reopen their immigration proceedings sua sponte.

 

The Fifth Circuit Court of Appeal reasoned as follows:

 

Equitable Tolling

• Although the numerical limitation and time deadlines relating to motions to reopen are subject to equitable tolling, the moving party must show: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Lugo-Resendez v. Lynch, 831 F.3d 337, at 344 (5th Cir. 2016).
• Whether ineffective assistance of counsel might have been an extraordinary circumstance justifying equitable tolling of the deadline governing the Petitioners’ motions to reopen need not be decided because the Petitioners failed to advance any argument that the untimeliness of the motion to reopen was the result of ineffectiveness of counsel.
• The Petitioners failure to move in timely fashion to reopen their immigration court proceedings was independent from their second attorney’s alleged omission to ensure, or at least remind the Petitioners, about the need for biometrics information.
• Therefore, the Petitioners have not shown any basis for equitable tolling of the filing deadline relating to their motions to reopening.

 

Sua Sponte Reopening

• Appellate courts do not have “jurisdiction to review the BIA’s discretionary decision not to invoke its sua sponte authority to reopen a case because there is no legal standard against which to judge that decision.” Mejia v. Whitaker, 913 F.3d 482, at 490 (5th Cir. 2019).
• The two most recent of the cited Supreme Court opinions expressly declined to reject the position of the Fifth Circuit Court of Appeal and of other circuits that refusal to reopen sua sponte is not reviewable.  See Mata, 576 U.S. at 148; Kucana, 558 U.S. at 251 n.18.
• Therefore, the United States Supreme Court decisions cited by the Petitioners do not undermine Fifth Circuit Court of Appeal precedent holdings that it does not have jurisdiction to review refusals to reopen sua sponte.

 

Commentary

In Eneugwu v. Garland (December 1, 2022) No. 20-61162, the Fifth Circuit Court of Appeal addresses a scenario involving biometric requirements, motions to reopen, ineffective assistance of counsel allegations, equitable tolling and the sacrosanct discretion of Immigration Judges and the BIA to exercise sua sponte authority.

 

Biometrics

In the good old days, before January 31, 2005 when 8 C.F.R. § 1003.47 governing security investigations went into effect, applicants for asylum and other applicants for relief that required background investigation simply submitted fingerprints with their applications.  The Immigration Judge would allow a reasonable time for the former Immigration and Naturalization Service ("INS") or, after 2002, the DHS to perform “background checks.”  After the government had been given a reasonable time to conduct a background check, the Immigration Judge had the discretion to conduct a hearing on the merits of the application and grant or deny the application.  After January 31, 2005, however, Immigration Judges must wait to issue a decision until after the DHS reports that the appropriate investigations or examinations have been completed.  See 8 C.F.R. § 1003.47(g). 

This new delay goaded some Immigration Judges to grumble.  The underlying sentiment was that the former INS or DHS should conduct their investigation on their own time (as they had in the past) without imposing backlogs of pending court decisions that had to be managed locally by the immigration courts.

Now, pursuant to 8 C.F.R. § 1003.47, “[f]ailure to provide biometrics or other biographical information . . . will constitute abandonment of the application . . ..”

This is the reason the Immigration Judge deemed the Petitioners’ applications abandoned in Eneugwu v. Garland.

 

Equitable Tolling

A motion to reopen “shall be filed within 90 days of the date of entry of a final administrative order of removal.”  See section 240(c)(7)(C)(i) of the Act.

A practical mechanic to remember about motions to reconsider and motions to reopen, especially for procrastinators, that is not discussed in Eneugwu v. Garland, is how deadlines are calculated:

[T]he day the Immigration Judge renders an oral decision or mails a written decision counts as “day 0.”  The following day counts as “day 1.”  Statutory and regulatory deadlines are calculated using calendar days.  Therefore, Saturdays, Sundays, and legal holidays are counted.  If, however, a statutory or regulatory deadline falls on a Saturday, Sunday, or legal holiday, the deadline is construed to fall on the next business day.

See section 3.1(c)(ii)(D) of the Immigration Court Practice manual.

The Fifth Circuit Court of Appeal made clear in Tomasa Yamileth Masin-Ventura v. Garland (July 21, 2022) No. 21-60610, that equitable tolling (i.e. equitable extension) of the filing deadline for motions to reopen is not a free-for-all.

The Fifth Circuit Court of Appeal reviews denials of motions to reopen “under a highly deferential abuse-of-discretion standard.”  Fuentes-Pena v. Barr, 917 F.3d 827, at 829 (5th Cir. 2019).   Specifically, a discretionary BIA decision relating to a motion to reopen will not be disturbed “so long as it is not capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.”  Yu Zhao v. Gonzales, 404 F.3d 295, at 304 (5th Cir. 2005).  

Based on this standard, it might not be unreasonable to conclude that even an artless or inappropriate administrative decision might survive abuse-of-discretion review.

The Fifth Circuit Court of Appeal has previously acknowledged that in some circumstances equitable tolling may be appropriate.  An alien is entitled to equitable tolling of a statute of limitations only if:  

1. He has been pursuing his rights diligently; and
2. some extraordinary circumstance has stood in his way and prevented timely filing. 

See Lugo-Resendez v. Lynch, 831 F.3d 337, at 344 (5th Cir. 2016).  

In my experience, many late motions to reopen lie wrecked beneath the stormy seas of litigation after shattering on the rocks of the requirement to exercise reasonable diligence.

Immigration law is all about people.  It is easy to become distracted and preoccupied with the obvious and unsettling impact of an extraordinary circumstance. 

Immigration practitioners, however, must never depart from the mental discipline necessary to a lawyer’s function.  Human tragedy, trauma and hardship will sometimes characterize an extraordinary circumstance.  Immigration practitioners must maintain composure and remain objective enough to assess and determine what evidence can be adduced to establish how an extraordinary circumstance prevented or interfered with the exercise of reasonable diligence or obscured the ordinary earmarks of reasonable diligence.

For example, the Petitioner in Masin-Ventura v. Garland claimed that she had been “forced into an abusive marriage where her free will was dominated by her assailant” and her assailant had prevented her from obtaining information about her immigration status and her 2006 removal proceedings.  She might have been suffering from post-traumatic stress or debilitating depression in a way that interfered with her ability to function or cooperate with her attorney.  In other words, the two-year delay needed to be explained in a way that is consistent with the legal requirement to prove reasonable diligence.  In Masin-Ventura v. Garland, no explanation was provided in the record under review.

Similarly, the Petitioners in Eneugwu v. Garland might have been victimized by ineffective assistance of counsel, but they failed to connect the dots and present a cogent argument explaining how the ineffective assistance of counsel prevented them from timely filing their motions to reopen in order to demonstrate an extraordinary circumstance that justified their untimely motions.

Solely identifying an extraordinary circumstance without explaining how such extraordinary circumstance stood in the way of timely filing a motion to reopen is fatal, as a matter of law, to the motion to reopen.  After 19 years of service as an Immigration Judge, I can categorically verify that failing to explain how an extraordinary circumstance interfered with the timely filing of a motion to reopen is a common oversight. 

On the bright side, the application of equitable tolling might be applicable to the filing deadline for BIA appeals.  In Jose Santos Boch-Saban v. Garland (April 8, 2022) No. 20-60540, the Fifth Circuit Court of Appeal determined that the thirty-day deadline for filing an appeal with the BIA under 8 C.F.R. § 1003.38 is non-jurisdictional and subject to equitable tolling.

Finally, don’t overlook the possibility of avoiding the need to establish eligibility for equitable tolling in the first place by persuading the DHS attorney to join your motion to reopen.  Time and number bars do not apply to jointly filed motions to reopen.  See 8 C.F.R. § 1003.23(b)(4)(iv).

 

Ineffective Assistance of Counsel

What constitutes ineffective assistance of counsel?

The BIA’s decision in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988) defines the template for demonstrating ineffective assistance of counsel in immigration court proceedings as follows:

1. affidavit of respondent setting forth in detail his retainer agreement, including representations that his attorney did or did not make;
2. provide an opportunity for the accused attorney to respond; and
3. indicate that a complaint has been filed with an appropriate disciplinary authority, and if not explain why not.

The attorney’s response or failure or refusal to respond should be submitted with the motion to reopen.

Hopefully, the following summary of factors and case law will illuminate the contours of ineffective assistance of counsel.

• Although right to counsel in immigration proceedings is grounded on 5^th Amendment due process protection, ineffective assistance of counsel is a denial of due process only if it taints the proceeding as fundamentally unfair in a way that prevents the respondent from reasonably presenting his case.
• Prejudice arising from an attorney’s performance must be shown.
• Lozada’s first attorney had filed a notice of appeal, indicating that a separate written brief would follow.  No brief, however, was filed and the BIA summarily dismissed the appeal.  See 8 C.F.R. § 1003.1(d)(2)(E).  The BIA stated that solely relying on action or inaction that justifies summary dismissal to reopen immigration proceedings would circumvent the appeals process by allowing a respondent to reopen proceedings for simply not pursuing an appeal and then claiming ineffective assistance of counsel.
• Defects of Lozada’s motion: 

1. Lozada did not establish that his former counsel had agreed to prepare an appellate brief or had been engaged to do so. 

2. Lozada did not allow an opportunity for his former counsel to present his version of the circumstances surrounding the alleged ineffective assistance of counsel.   

3. Lozada did not notify disciplinary authorities.  (According to the BIA, this requirement not only deters meritless claims, but also highlights standards expected from attorneys who represent persons in immigration proceedings.) 

4.  Lozada failed to show prejudice arising from failure or decision not to file an appellate brief, because after a full fair hearing (void of any inadequacy of his former attorney’s representation) Lozada did not merit a grant of relief as a matter of discretion and was not eligible for voluntary departure as a matter of law.

 

Policy Rationale For Matter of Lozada

Matter of Lozada standards:

1. Establish a method of monitoring immigration attorneys, serving long term interest in “policing” the immigration bar;

2. Deter meritless claims;

3. Protect against collusion;

4. Reduce pressure for conducting hearings to test reliability of affidavits.

See Matter of Rivera-Claros, 21 I&N Dec. 599 (BIA 1996).

 

Examples of Exceptions to Lozada Compliance

• No need to comply with Lozada where the record establishes ineffective assistance of counsel on its face – Escobar-Grijalva v. INS, 206 F.3d 1331 (9^th Cir. 2000) (strong dissent); Yang v. Gonzales, 478 F.3d 133, at 142-43 (2^nd Cir. 2007).  
• Court presumed ineffective assistance of counsel without Lozada compliance where alien was deceived and given bad advice by a notorio who posed as an attorney - Lopez v. INS, 184 F.3d 1097 (9^th Cir. 1999).
• Lozada compliance not required where alien’s failure to appear was promptly addressed with a motion to reopen within 3 days accompanied with an affidavit from counsel who accepted full responsibility for his secretary’s inadvertent erroneous information given to the alien about the date of the missed hearing – Lo v. Ashcroft, 341 F.3d 934 (9^th Cir. 2003); Fadiga v. Attorney General, 488 F.3d 142, at 156 (3^rd Cir. 2007) (collusion rationale rejected where attorney admitted error in detailed affidavit; “seems unlikely that a lawyer would go so far as to commit perjury (i.e. intentionally filing a false affidavit) in furtherance of such collusion”).
• Compliance with Lozada futile where alien’s attorney had been suspended for failure to respond to previous charges of ineffective assistance of counsel – Morales Apolinar v. Mukasey, 514 F.3d 893, at 896 (9^th Cir. 2008).  However, even under the 6th Amendment, disbarment of attorney is not necessarily ineffective assistance of counsel; prejudice must be demonstrated -  United States v. Ross, 338 F.3d 1054, at 1056 (9th Cir. 2003), citing United States v. Cronic, 466 U.S. 648, at 658 (1984).
• Alien excused from filing formal complaint against his attorney where alien reasonably believed that the attorney had already been suspended from the practice of law – Esposito v. INS, 987 F.2d 108 (2^nd Cir. 1993).
• Lozada requirements can be satisfied at any time where alien did not fully comply in pro-se motion to reopen to the Immigration Judge, but later complied in his appeal to the BIA -  Saakian v. INS, 252 F.3d 21 (1^st Cir. 2001).
• Filing disciplinary complaint excused where alien only complied with the first two prongs of Lozada, but submitted enough information in his motion to reopen to help his former attorney to avoid the same mistakes in the future – Rranci v. Attorney General, 540 F.3d 165, at 174 (3^rd Cir. 2008).

 

Tactical Decisions

Reasonable tactical decisions are not ineffective assistance of counsel:

• Concession of alienage with the goal of pursuing cancellation of removal, rather than pursue motion to suppress based on confidentiality provisions of 1986 Legalization Program was a reasonable tactical decision – Torres-Chavez v. Holder, 567 F.3d 1096, at 1102 (9^th Cir. 2009).
• It is not ineffective assistance of counsel to make tactical decisions that ultimately fail to the client’s detriment – LeBlanc v. INS, 715 F.2d 685, at 694 (1^st Cir. 1983); Rodriguez-Gonzalez, v. INS, 640 F.2d 1139, at 1142 (9^th Cir. 1981).
• Hindsight applied to unwise tactical decision to withdraw asylum application does not constitute ineffective assistance of counsel - Awad v. Ashcroft, 328 F.3d 336, at 343 (7^th Cir. 2003).
• Ineffective assistance of counsel not apparent where a tactical decision may have been made to concede an exclusion charge when a deportation charge was more correct, because no substantive difference affecting the case disposition between excludable and deportable existed – DeZavala v. Ashcroft, 385 F.3d 879 (5^th Cir. 2004).
• Failure to inform immigration court that respondent was married to a U.S. citizen and potentially eligible for adjustment of status where respondent had previously been found to have entered into a fraudulent marriage to avoid challenge to credibility is a tactical decision that did not result in violation of due process -   Romero v. INS, 399 F.3d 109, at 111-12 (2^nd Cir. 2005).
• Recommendation to seek voluntary departure instead of pursuing a meritless asylum application does not constitute ineffective assistance of counsel – Jiang v. Mukasey, 522 F.3d 266, at 270 (2^nd Cir. 2008).  However, “[L]awyer may not burden a client’s decision making by threatening to withdraw if the client refuses to settle.”  Nehad v. Mukasey, 535 F.3d 962, at 971 (9th Cir. 2008).  This case also involved a sudden change of strategy to accept voluntary departure without knowing if there was another country in which the client could reside coupled with insufficient legal research regarding pending legislation.
• Client’s failure to inform attorney about her female genital mutilation which the attorney did not include in her asylum claim attributed to the client and not the quality of the attorney’s representation – Azanor v. Ashcroft, 364 F.3d 1013, at 1023 (9^th Cir. 2004).
• No ineffective assistance of counsel found where client never informed attorney about the basis for an asylum hearing claimed to be omitted from asylum hearing – Wang v. Ashcroft, 367 F.3d 25, at 28 (1^st Cir. 2004).  However, the BIA may not credit one person’s version over another person’s version on a material issue of fact without a hearing to determine who is correct – Magala v. Gonzales, 434 F.3d 523, at 526 (7th Cir. 2005).

 

Sua Sponte Authority of Immigration Judges and the BIA

For those who are new to motion practice in immigration proceedings, an Immigration Judge and the BIA can sua sponte reconsider any order or disposition or reopen any proceeding that the respective decision maker issued or concluded.  See 8 C.F.R. §§ 1003.23(b) and 1003.2(a).

As noted above in this post, the term, sua sponte, is legalese meaning by spontaneous self-urging or recommendation on the part of a decision maker.  The fact that sua sponte authority technically denotes self-initiated action, does not prevent parties from requesting the exercise of such authority.

The BIA has held that an alien who is seeking the favorable exercise of sua sponte authority must demonstrate the existence of an exceptional situation that warrants reopening.  Matter of Beckford, 22 I&N Dec. 1216 (BIA 2000).  The BIA declared in Matter of G-D-, 22 I&N Dec. 1132, at 1133-1134 (BIA 1999) that: 

As a general matter, we invoke our sua sponte authority sparingly, treating it not as a general remedy for any hardships created by enforcement of the time and number limits in the motions regulations, but as an extraordinary remedy reserved for truly exceptional situations.       

The exercise of sua sponte authority, however, is purely discretionary.  Therefore, appellate courts might decline to review motion denials issued in the exercise of sua sponte authority.  See Heckler v. Chaney, 470 U.S. 821, at 830 (1985) ("[R]eview is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion.").  See, also, Ramos-Bonilla v. Mukasey, 543 F.3d 216 (5th Cir. 2008); Anaya-Aguilar v. Holder, 683 F.3d 369, at 371-72 (7th Cir. 2012); Pllumi v. Attorney Gen. of the U.S., 642 F.3d 155, at 159-60 (3d Cir. 2011) (“If . . . the BIA declines to exercise its sua sponte authority . . . in a manner that does not indicate a misunderstanding of its authority, then that decision will be unreviewable.); Gor v. Holder, 607 F.3d 180, at 187-93 (6th Cir. 2010).

Consequently, a party seeking to reopen immigration court proceedings should not completely rely on a motion for the exercise of sua sponte authority.   

Persuading the decision maker at the administrative level of proceedings to favorably exercise sua sponte authority is virtually essential.  Establishing abuse of discretion in an appellate court is likely to be a strenuous and uncertain task.

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