United States Court of Appeals
For the First Circuit
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD
OF IMMIGRATION APPEALS
Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Howard, Circuit Judge.
Jorge Guttlein and Guttlein & Associates on brief for
Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil
Division, Carl H. McIntyre, Jr., Assistant Director, Office of
Immigration Litigation, and Gary J. Newkirk, Trial Attorney, Office
of Immigration Litigation, on brief for respondent.
July 9, 2008
SELYA, Senior Circuit Judge. The petitioner, Victor
Beltre-Veloz, claims that the Board of Immigration Appeals (BIA)
abused its discretion by denying his motion to reopen a removal
proceeding. He claims that the motion should have been allowed
because (i) he had received ineffective assistance of counsel,
culminating in an in absentia order of removal; and (ii) he had
advanced valid grounds for tolling the time limit that ordinarily
applies to the filing of a motion to reopen. We find these claims
unpersuasive and, therefore, deny relief.
The facts are straightforward. Beltre-Veloz, a native
and citizen of the Dominican Republic, entered Puerto Rico without
inspection on or about January 20, 1993. Some two and one-half
years later, he was apprehended attempting to board a commercial
flight to the continental United States. The Immigration and
Naturalization Service (INS) proceeded to issue a show-cause order
as a means of testing his immigration status.1
The INS subsequently rescinded this order to enable the
petitioner to testify as a material witness in an ongoing criminal
case. As part of the cooperation agreement, the agency arranged
for the petitioner's release on personal recognizance and provided
him with an employment authorization document. That document, by
its terms, expired on June 21, 1996.
On March 1, 2003, the relevant functions of the INS were
transferred to the Department of Homeland Security. For ease in
exposition, we refer throughout this opinion to the INS.
[End Page 2]
At some point prior to the expiration of the work
authorization, the petitioner flew to New York without either
informing the INS or securing its approval. His immigration file
showed a Puerto Rico address as his residence in the United States,
and he never amended that filing even though applicable regulations
require such notification within five days of any change in
address. See 8 C.F.R. § 1003.15(d)(2).
The petitioner's immigration file also reflected that he
was represented by a lawyer based in Puerto Rico, Rosaura GonzÃ¡lez-
Rucci. On September 4, 1996, the INS served both the petitioner
and his attorney with a new show-cause order. The order posited
that the petitioner was removable as an alien present in the United
States without having been lawfully admitted or paroled. See 8
U.S.C. § 1182(a)(6)(A)(i). The INS thereafter issued a superseding
notice to appear,2 sending copies by certified mail to GonzÃ¡lez-
Rucci and to the petitioner's address of record (an address at
which his spouse still resided).
The notice to appear did not specify a hearing date. To
fill that lacuna, the immigration court scheduled a hearing for
October 7, 1997. The hearing notice was mailed to the petitioner's
Effective April 1, 1997, deportation proceedings were to be
initiated by the issuance of a notice to appear instead of a show-
cause order. Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104, § 304(a), 110 Stat.
3009-546, -587; see also Peralta v. Gonzales, 441 F.3d 23
, 26 n.4
(1st Cir. 2006).
[End Page 3]
attorney, see 8 C.F.R. § 1003.13 (specifying that notices may be
sent to the alien's attorney of record), as well as to the
petitioner's address of record.
The petitioner and his counsel appeared for the October
7 session. Thereafter, the immigration judge (IJ) issued a notice
for a resumed hearing to be held on January 8, 1998. As provided
by the regulations, see id., the court mailed the notice to
GonzÃ¡lez-Rucci as the petitioner's attorney of record.
The lawyer attended the January 8 hearing but the
petitioner did not. The IJ ordered the petitioner's removal in
absentia. No appeal was taken from that order.
Eight years passed before the petitioner resurfaced. On
July 31, 2006, the petitioner moved through new counsel to reopen
the removal proceeding. The motion broadly alleged ineffective
assistance of counsel. It asserted among other things that the
petitioner's former lawyer (GonzÃ¡lez-Rucci) had failed to advise
him of the hearing scheduled for January 8, 1998. The motion was
accompanied by an affidavit, signed by the petitioner, attesting to
the truth of the skeletal facts set forth in the motion papers.
Annexed to the motion was a copy of a letter, dated June
30, 2006, from the petitioner to the United States District Court
[End Page 4]
for the District of Puerto Rico. That missive sought to initiate
disciplinary proceedings against GonzÃ¡lez-Rucci.3
On August 23, 2006, the IJ denied the motion to reopen,
noting that GonzÃ¡lez-Rucci had been present at the January 8
hearing and had insisted that she mailed a copy of the hearing
notice to the petitioner. Going a step further, the IJ observed
that, in all events, the petitioner's ineffective assistance claim
did not comply with the procedural requirements for the maintenance
of such a claim. See Matter of Lozada, 19 I. & N. Dec. 637, 639
The BIA affirmed the IJ's denial of the motion to reopen.
It concluded that the petitioner not only had failed to satisfy the
Lozada requirements but also that his lackadaisical conduct
foreclosed any tolling of the prescribed 180-day deadline for
filing motions to reopen. See 8 C.F.R. §§ 1003.23(b)(4)(ii)-(iii).
This timely petition for judicial review followed. In
it, the petitioner contends that he substantially complied with the
Lozada requirements and, furthermore, that he acted with sufficient
diligence to warrant tolling the 180-day filing period.
Motions to reopen removal proceedings are disfavored
because, as a general matter, such motions are at odds with "the
The record contains a subsequent letter, dated September 19,
2006, from the United States District Court to the petitioner.
That letter states in pertinent part that GonzÃ¡lez-Rucci was not
admitted to practice there.
[End Page 5]
compelling public interests in finality and the expeditious
processing of proceedings." Guerrero-Santana v. Gonzales, 499 F.3d 90
, 92 (1st Cir. 2007). Accordingly, we cede substantial deference
to the BIA's judgment and review refusals to reopen under a
deferential abuse-of-discretion standard. Raza v. Gonzales, 484 F.3d 125
, 127 (1st Cir. 2007). Applying that standard, we will
uphold a denial of a motion to reopen unless we conclude that the
BIA either committed a material error of law or exercised its
authority in an arbitrary, capricious, or irrational manner.
Guerrero-Santana, 499 F.3d at 92; Raza, 484 F.3d at 127.
Appellate review in this esoteric corner of the law plays
out against a well-defined statutory and regulatory mosaic. As
part of this mosaic, a motion to reopen an in absentia removal
order must be proffered within 180 days of the entry of the
challenged order unless the alien's absence from the hearing was
due to "exceptional circumstances." 8 U.S.C. § 1229a(b)(5)(C)(I).
Ineffective assistance of counsel can qualify as an exceptional
circumstance. See Asaba v. Ashcroft, 377 F.3d 9
, 11 (1st Cir.
2004); Saakian v. INS, 252 F.3d 21
, 25 (1st Cir. 2001).
Seizing on this line of authority, the petitioner argues
that ineffective assistance of counsel caused his absence from the
January 8, 1998 hearing and, consequently, produced the in absentia
removal order. He claims that the lack of communication similarly
accounted for the belated filing of his motion to reopen.
[End Page 6]
We can make short shrift of this asseverational array.
The BIA, in Lozada, 19 I. & N. Dec. at 639, erected a framework for
the adjudication of ineffective assistance of counsel claims. That
framework, which we have approved, see Lozada v. INS, 857 F.2d 10
13 (1st Cir. 1988), is designed to screen out frivolous, stale, and
collusive claims. See Tai v. Gonzales, 423 F.3d 1
, 5 (1st Cir.
2005); Betouche v. Ashcroft, 357 F.3d 147
, 150 (1st Cir. 2004).
The framework includes a number of specific elements, which we
An alien seeking to reopen a removal proceeding on the
ground of ineffective assistance of counsel must submit (i) an
affidavit setting forth in reasonable detail the nature and scope
of the engagement that counsel undertook; (ii) an account of how
counsel mishandled those undertakings; (iii) evidence that the
lawyer has been informed of the allegations against her and
afforded an opportunity to respond; and (iv) evidence that the
alien has either filed a complaint with the appropriate
disciplinary authority or possesses a legitimate excuse for not
doing so. See, e.g., Betouche, 357 F.3d at 149; Lozada, 19 I. & N.
Dec. at 639.
The record here is pellucid that the petitioner did not
touch these bases. For one thing, there is no evidence that he
notified GonÃ¡lez-Rucci of the allegations against her. The fact
that the petitioner claims conclusorily in his brief that "every
[End Page 7]
effort was made to find prior counsel" does not cure this
infirmity. The claim is unsupported; no details are supplied and
the record is entirely barren of any evidence relating to what
efforts were made. To cinch matters, we long have recognized that
a party's factual allegations in a legal memorandum do not
constitute evidence, nor do they establish material facts. See
Jupiter v. Ashcroft, 396 F.3d 487
, 491 (1st Cir. 2005); see also 8
C.F.R. § 1003.23(b)(3) (providing that motions to reopen "shall be
supported by affidavits and other evidentiary material"). We
conclude, therefore, that the BIA acted within the encincture of
its discretion in denying the motion to reopen on this ground
alone. See, e.g., Asaba, 377 F.3d at 12.
If more were needed "" and we doubt that it is "" the
record does not establish the petitioner's compliance with the
other prerequisites for an ineffective assistance claim. For
example, while the petitioner served an affidavit together with his
motion to reopen, that document makes no mention of the nature,
scope, or substance of the petitioner's arrangement with GonzÃ¡lez-
Rucci, nor does it indicate what communications the petitioner had
with the attorney over the years. This, in itself, is a fatal
flaw. See Ruiz-MartÃnez v. Mukasey, 516 F.3d 102
, 121 (2d Cir.
2008) (affirming denial of motion to reopen where affidavit failed
to "set forth [the petitioner's] agreement with his prior attorneys
[End Page 8]
concerning what actions would be taken or what they did or did not
represent in this regard").
Then, too, the petitioner never registered a meaningful
complaint about his former counsel. Although he wrote a letter
seeking the initiation of disciplinary proceedings against her, he
directed the missive to the wrong court "" a court that had no
authority over the lawyer. See supra note 3. Making a complaint
to a body that is powerless to address it is the same as making no
complaint at all. That is particularly true where, as here, the
misdirection is unexplained.
The petitioner labors to excuse this massive shortfall by
styling his efforts as "substantial compliance." There are two
principal difficulties with the petitioner's invocation of this
euphemism. First, it defies both ordinary meaning and common sense
to term either the petitioner's largely unknown efforts or his
woefully deficient proffer "substantial." Second, no claim of
substantial compliance was ever presented to the BIA. That is
game, set, and match: it is settled law that theories not raised
before the BIA cannot be broached for the first time before this
court. See Molina de Massenet v. Gonzales, 485 F.3d 661
, 664 (1st
Cir. 2007); Aguilar v. Gonzales, 475 F.3d 415
, 418 (1st Cir. 2007).
With no founded claim of exceptional circumstances, the
petitioner's last hope is a freestyle claim of equitable tolling.
Passing the question of whether such an argument is cognizable at
[End Page 9]
all "" a matter on which we take no view "" the facts of this case
furnish no traction for such an argument. We explain briefly.
It cannot be gainsaid that due diligence is a sine qua
non for equitable tolling. See Guerrero-Santana, 499 F.3d at 94.
Here, however, even accepting as true the petitioner's
unsubstantiated allegation that his attorney failed to notify him
of the scheduled January 8 hearing, due diligence is lacking. The
critical datum is that the petitioner waited eight years before
inquiring into his immigration status, despite knowing both that
removal proceedings had commenced and that his work permit had
expired. That inordinate period of delay belies any serious
assertion of due diligence. So, we cannot fault the BIA for
determining that the petitioner's protracted disregard of his
immigration obligations pretermitted any claim for equitable
tolling. See Mahmood v. Gonzales, 427 F.3d 248
, 252 (3d Cir. 2005)
(finding a lack of due diligence in light of petitioner's failure
to inquire about the status of his immigration case).
We need go no further. For the reasons elucidated above,
we hold that the BIA did not abuse its discretion in refusing to
grant the petitioner's untimely motion to reopen.
The petition for judicial review is denied.
[End Page 10]