Juan Perez-Pablo, et al v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Tomasa Calmo-Carrillo. Decision: Affirmed. Petition Denied. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 04/07/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12253
Non-Argument Calendar
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Agency No. A097-625-806

JUAN PEREZ-PABLO,
TOMASA CALMO-CARRILLO,
ROLANDO PEREZ-CALMO,
LEOVEL PEREZ-CALMO,
HERLINDA PEREZ-CALMO,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 7, 2017)

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Before JORDAN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Juan Perez-Pablo, Tomasa Calmo-Carrillo, Rolando Perez-Calmo, Leovel
Perez-Calmo, and Herlinda Perez-Calmo (“the petitioners”), proceeding with
counsel, seek review of the Board of Immigration Appeals’ (“BIA”) final order
affirming the Immigration Judge’s (“IJ”) denial of their motion to reopen in
absentia removal proceedings, pursuant to the Immigration and Nationality Act
(“INA”) § 240(b)(5)(C), 8 U.S.C. § 1229a(b)(5)(C). On appeal, the petitioners
argue that the BIA abused its discretion in affirming the IJ’s denial of the
petitioners’ motion to reopen, where they submitted sworn affidavits and an article
establishing that a hurricane prevented their appearance at the September 14, 2004,
removal hearing, and where, despite their attorney’s specific instruction to avoid
their case, they exercised due diligence in pursuing their case by seeking counsel
immediately after the hurricane had passed. The petitioners also argue that the
BIA abused its discretion in affirming the IJ’s declination to equitably toll the 180day filing deadline due to their failure to diligently pursue their case, where they
pursued their rights diligently, but were held back due to the hurricane’s wreckage
and their attorney’s ineffective assistance of counsel, which were both
extraordinary circumstances out of their control.

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We review the BIA’s decision as the final judgment, unless and to the extent
the BIA expressly adopted the IJ’s decision. Kazemzadeh v. U.S. Att’y Gen., 577
F.3d 1341, 1350 (11th Cir. 2009). Where the BIA agrees with the IJ’s decision, we
review the decisions of both the BIA and the IJ. Id. We will not review issues the
BIA declined to address. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir.
2016). Here, the BIA issued its own decision, but to the extent that the BIA agreed
with the IJ’s findings, we review both decisions. Kazemzadeh, 577 F.3d at 1350.
We review the denial of a motion to reopen an immigration proceeding for
an abuse of discretion, under which we will only determine whether the BIA
exercised its discretion arbitrarily or capriciously. Jiang v. U.S. Att’y Gen., 568
F.3d 1252, 1256 (11th Cir. 2009). The appellant bears a heavy burden in proving
arbitrariness or capriciousness because motions to reopen in the context of removal
proceedings are particularly disfavored. Zhang v. U.S. Att’y Gen., 572 F.3d 1316,
1319 (11th Cir. 2009).
Under INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A), when an alien fails
to attend his removal proceeding, he will be ordered removed in absentia so long
as he is removable and was provided with written notice of the proceeding. INA
§ 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). The alien may only seek rescission of
the in absentia removal order by filing a motion to reopen removal proceedings
within 180 days after the order of removal was entered, and by demonstrating that
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he failed to appear due to “extraordinary circumstances.” Jiang, 568 F.3d at 1256;
see INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i) (citing “exceptional
circumstances”). The INA’s 180-day deadline for filing a motion to reopen an in
absentia removal order is a non-jurisdictional claim-processing rule, subject to
equitable tolling. Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1362-65 & n.4
(11th Cir. 2013) (en banc). To prevail on an equitable tolling claim, the appellant
must show that: (1) he has pursued his rights diligently, and (2) some extraordinary
circumstance stood in his way. See id. at 1363 n.5.
The BIA did not abuse its discretion by affirming the IJ’s denial of the
petitioners’ motion to reopen. The petitioners do not dispute receiving the notice
of removal and the in absentia removal order. Because the petitioners did not file
their motion to reopen until September 25, 2015, just over 11 years after the IJ’s
September 14, 2004, final removal decision, their motion was untimely and they
needed to satisfy the equitable tolling requirements. INA § 240(b)(5)(C)(i), 8
U.S.C. § 1229a(b)(5)(C)(i); Jiang, 568 F.3d at 1256; Avila-Santoyo, 713 F.3d at
1362-65 & n.4.
The BIA properly affirmed the IJ’s declination to equitably toll the 180-day
deadline for the petitioners’ motion to reopen. The BIA did not exercise its
discretion in an arbitrary or capricious manner where it reasonably concluded from
the evidence that the petitioners did not exercise due diligence in pursuing their
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rights. Jiang, 568 F.3d at 1256; Zhang, 572 F.3d at 1319. According to PerezPablo’s and Calmo-Carrillo’s sworn declarations, from the time they consulted
Milano in late September 2004 until their move to California in 2014, they
specifically avoided contacting either the immigration court or alternative counsel
due to their fear of deportation. The record demonstrates no other efforts by the
petitioners in pursuing their case prior to 2014. Thus, the BIA was within its
discretion to conclude that the petitioners failed to show the requisite diligence for
equitable tolling. Avila-Santoyo, 713 F.3d at 1363 n.5.
The petitioners also argue that the BIA erred in adopting the IJ’s summary
conclusion that they failed to comply with Matter of Lozada, 19 I&N Dec. 637
(BIA 1988), as to their ineffective assistance of counsel argument. However,
because the BIA did not adopt this conclusion, but rather concluded that the duediligence issue was dispositive, we need not review the IJ’s conclusion on this
matter. Gonzalez, 820 F.3d at 403. Nevertheless, because the petitioners failed to
show entitlement to equitable tolling, we need not consider the merits of their
motion to reopen on ineffective assistance of counsel grounds. See Ruiz-Turcios v.
U.S. Att’y Gen., 717 F.3d 847, 851 (11th Cir. 2013) (concluding that entitlement to
equitable tolling must be satisfied before consideration of the merits of the claim
underlying the motion to reopen).

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Upon review of the record and consideration of the parties’ briefs, we deny
the petitioners’ petition.
PETITION DENIED.

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