Esther Dada v. Eric Holder, Jr.

Filing

Per Curiam OPINION filed : The BIA did not abuse its discretion in denying Dada s motion to reopen as untimely and declining to apply equitable tolling. Accordingly, we DENY the petition for review, decision not for publication. Julia Smith Gibbons, Circuit Judge; Raymond M. Kethledge, Circuit Judge and Jane Branstetter Stranch, Circuit Judge.

Case: 12-3194

Document: 006111607782

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0216n.06
No. 12-3194

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ESTHER DADA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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Mar 01, 2013
DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS

BEFORE: GIBBONS, KETHLEDGE, and STRANCH, Circuit Judges.

PER CURIAM. Esther Dada petitions for review of an order of the Board of Immigration
Appeals (BIA) denying her motion to reopen her removal proceedings. We deny the petition.
Dada, a native and citizen of Nigeria, entered the United States on April 23, 1988 as a nonimmigrant visitor with authorization to remain for a temporary period. On September 11, 1998, the
Immigration and Naturalization Service (INS) initiated removal proceedings against Dada by serving
her with a notice to appear, charging her with removability under Section 237(a)(1)(B) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B), as a non-immigrant who has remained
in the United States for a time longer than permitted. On April 23, 1999, Dada appeared before an
immigration judge (IJ), admitted the factual allegations contained in the notice to appear, conceded
removability as charged, and requested relief in the form of cancellation of removal. Rather than
filing an application for cancellation of removal, Dada’s counsel filed an application for suspension

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of deportation. The government subsequently moved to pretermit Dada’s request for cancellation
of removal as abandoned because no application had been filed.
On March 31, 2000, Dada married a United States citizen, who filed a petition for alien
relative, Form I-130, on her behalf. When Dada next appeared before the immigration court, the IJ
granted a continuance based on the pending Form I-130 and ordered her to file the correct application
for relief before the merits hearing. On May 20, 2003, the INS subsequently denied the Form I-130,
concluding that Dada’s marriage was a sham.
At the merits hearing on November 18, 2003, the IJ noted that Dada had neither responded
to the government’s motion to pretermit nor filed the appropriate application for relief. The IJ
denied counsel’s request to file an application for cancellation of removal, stating that failing to file
a response or application in the three-and-a-half years since the filing of the government’s motion
was “inexcusable.” In an oral decision denying relief and ordering Dada’s removal to Nigeria, the
IJ found that her request for cancellation of removal was abandoned and that she was ineligible for
voluntary departure.
Dada retained new counsel the following month, who filed a timely notice of appeal asserting
ineffective assistance of counsel but failed to file a brief or motion to reopen. The BIA summarily
affirmed the IJ’s decision on December 15, 2004.
In the spring of 2011, Dada consulted with her current counsel, who requested her file from
the immigration court. Dada learned then that her 2003 appeal had been dismissed, that her second
attorney had not filed a brief or a motion to reopen, and that the attorney was not an active member
of any state bar. On September 26, 2011, Dada’s current counsel filed a motion to reopen based on
ineffective assistance of counsel. The BIA denied the motion to reopen as untimely filed, declining
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to equitably toll the limitations period because Dada (1) failed to establish prejudice by her counsel’s
performance and (2) failed to act with due diligence. Dada timely petitioned for review of the BIA’s
order.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Acquaah v.
Holder, 589 F.3d 332, 334 (6th Cir. 2009). We review the BIA’s legal determinations de novo and
its factual findings for substantial evidence, reversing only if “‘any reasonable adjudicator would be
compelled to conclude to the contrary.’” Mezo v. Holder, 615 F.3d 616, 620 (6th Cir. 2010) (quoting
8 U.S.C. § 1252(b)(4)(B) and Singh v. Gonzales, 451 F.3d 400, 403 (6th Cir. 2006)).
A motion to reopen must be filed within ninety days of a final order of removal. 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Where, as here, “an alien seeks to reopen a time-barred
motion, the doctrine of equitable tolling may be applied to permit reopening when the alien
demonstrates that she received ineffective assistance of counsel and was prejudiced thereby.” Mezo,
615 F.3d at 620. “In past cases, we have declined to equitably toll the time period for filing motions
to reopen for two reasons: (1) where the petitioner failed to establish prejudice from former
counsel’s untimely appeal; and (2) where the petitioner failed to exercise diligence in pursuing his
rights.” Id. (citations omitted).
Dada argues that the BIA erred in failing to address whether her counsel was ineffective,
instead addressing only prejudice. In cases involving the right to effective assistance of counsel
under the Sixth Amendment, a court need not address both the performance and prejudice
components of the ineffectiveness inquiry if there is an insufficient showing on one. Strickland v.
Washington, 466 U.S. 668, 697 (1984). Although ineffective assistance of counsel claims in the
immigration context derive from the Fifth Amendment’s guarantee of due process, not from the
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Sixth Amendment, Sako v. Gonzales, 434 F.3d 857, 859 (6th Cir. 2006), the same principle applies.
See, e.g., Allabani v. Gonzales, 402 F.3d 668, 677–78 (6th Cir. 2005) (considering only whether
petitioner was prejudiced by counsel’s performance, not whether that performance was deficient, in
affirming BIA’s denial of petitioner’s motion to reopen based on ineffective assistance of counsel).
To show prejudice, a petitioner “must establish that, but for the ineffective assistance of
counsel, he would have been entitled to continue residing in the United States.” Sako, 434 F.3d at
864. Dada contends that the BIA erred in applying this prejudice standard and that the proper
standard requires merely a prima facie showing of eligibility for relief. Dada failed to establish
eligibility for cancellation of removal under either standard.
To be eligible for cancellation of removal, an alien must have been “a person of good moral
character” during the ten-year period immediately preceding the alien’s application. 8 U.S.C.
§ 1229b(b)(1)(B). Dada ignores the evidence that she entered into a sham marriage, which
precludes her from establishing good moral character. See Ali v. Ashcroft, 366 F.3d 407, 412 (6th
Cir. 2004). An alien seeking cancellation of removal must also establish “that removal would result
in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen
of the United States or an alien lawfully admitted for permanent residence.”

8 U.S.C.

§ 1229b(b)(1)(D). As the BIA noted, Dada’s motion to reopen did not identify a qualifying relative
or address that relative’s hardship. In the application for cancellation of removal attached to her
motion to reopen, Dada indicated that her removal would result in exceptional and extremely unusual
hardship to her United States citizen daughter, but she did not allege any facts or present any
evidence in support of that claim. The BIA properly determined that Dada failed to demonstrate
eligibility for cancellation of removal and therefore failed to establish prejudice.
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The BIA also found that Dada failed to establish due diligence. We agree. “Due diligence
requires an alien to prove that the delay in filing the motion to reopen was due to an exceptional
circumstance beyond his control.” Tapia-Martinez v. Gonzales, 482 F.3d 417, 423 (6th Cir. 2007)
(internal quotation marks omitted). According to her affidavit, Dada never heard from her second
attorney after he filed a notice of appeal with the BIA in December 2003. Dada asserted that she
went to his office, which had been vacated, and that she had no way to contact him. Dada’s affidavit
provided no explanation for why she waited more than seven years to consult with another attorney.
In her answer to the government’s response to her motion to reopen, Dada asserted that she “was
fearful to do anything and did not know if she could do anything, and mainly did not know where
to turn for help.” Dada’s failure to take any action to pursue her legal rights for more than seven
years supports the BIA’s determination that she was not diligent. See Carroll v. Holder, 310
F. App’x 763, 765–66 (6th Cir. 2009).
For the foregoing reasons, the BIA did not abuse its discretion in denying Dada’s motion to
reopen as untimely and declining to apply equitable tolling. Accordingly, we deny the petition for
review.

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