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Keywords

attorneyhearingmotiondeportationjudicial review

hearingmotiondeportationjudicial review

Related Cases

Guerrero-Santana v. Gonzales

Facts

The petitioner, a citizen of the Dominican Republic, entered the United States without inspection in December 1996 and was charged with deportability shortly thereafter. He failed to appear for a scheduled hearing in September 1997, resulting in a removal order in absentia. After several years, he attempted to reopen his case, claiming he was unaware of the deportation order until 2001 and alleging ineffective assistance of counsel from his previous attorneys. His second motion to reopen was denied by the BIA due to untimeliness and lack of evidence supporting his claims.

The petitioner, a citizen of the Dominican Republic, entered the United States without inspection on or about December 13, 1996. Within a matter of weeks, the authorities charged him with deportability under former section 241(a)(1)(B) of the Immigration and Nationality Act (INA), 8 U.S.C. 1251(a)(1)(B) (1996). The removal proceeding was initiated by an order to show cause, which required the petitioner to appear before an immigration judge (IJ). At the petitioner's request, the immigration court transferred venue from Houston, Texas, to Boston, Massachusetts. Following the transfer, the IJ scheduled a hearing for September 11, 1997. A notice was sent by certified mail, return receipt requested, to the address provided by the petitioner. That notice commanded him to appear for the scheduled hearing and advised him that failure to appear could result in an order of deportation in absentia.

Issue

Did the BIA abuse its discretion in denying the petitioner's motion to reopen based on ineffective assistance of counsel and the application of equitable tolling?

Rule

Motions to reopen removal proceedings are disfavored and subject to strict deadlines. An alien must file a motion to reopen within ninety days of the final administrative decision, and equitable tolling is only available under exceptional circumstances.

Motions to reopen removal proceedings are disfavored as contrary to 'the compelling public interests in finality and the expeditious processing of proceedings.'

Analysis

The court found that the petitioner failed to demonstrate how his previous counsels' alleged ineffectiveness caused the delay in filing his second motion to reopen. The significant gap of fourteen months between the denial of the first motion and the filing of the second was not adequately explained. Furthermore, the court noted that the doctrine of equitable tolling is not applicable when a party has not exercised due diligence.

Conclusion

The appellate court denied the petition for judicial review, affirming the BIA's decision that it did not abuse its discretion in denying the motion to reopen.

Who won?

The government prevailed in the case because the court upheld the BIA's decision, finding no abuse of discretion in denying the motion to reopen.

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