Matilde Ramirez-Matias v. Eric Holder, Jr.
Filing
OPINION filed: The petition for review is DENIED, decision not for publication. Karen Nelson Moore (authoring), Circuit Judge; Eric L. Clay, Circuit Judge and Ronald Lee Gilman, Circuit Judge.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0771n.06
No. 14-4056
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MATILDE FLORINTINA RAMIREZMATIAS,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
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FILED
Nov 24, 2015
DEBORAH S. HUNT, Clerk
ON PETITION FOR REVIEW
FROM THE BOARD OF
IMMIGRATION APPEALS
OPINION
Before: MOORE, CLAY, and GILMAN, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Matilde Florintina Ramirez-Matias seeks
review of a decision of the Board of Immigration Appeals (“BIA”) denying her motion to reopen
her case.
Ramirez-Matias illegally entered the United States in September 2000.
An
Immigration Judge (“IJ”) ordered her removed from the country in September 2002. The BIA
affirmed that decision in July 2003. Ramirez-Matias filed her motion to reopen over a decade
later in June 2014. The BIA rejected the motion as untimely. Ramirez-Matias argues that the
BIA should have equitably tolled the relevant statute of limitations. For the reasons set forth
below, we DENY the petition.
I. BACKGROUND
Ramirez-Matias is a thirty-seven-year-old native and citizen of Guatemala.
I-589
Application at 1 (A.R. 393). In a declaration attached to her motion to reopen, Ramirez-Matias
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recounts how her parents fled their hometown of Todos Santos Cuchumatan, Huehuetenango
after the Todos Santos massacre in 1982, leaving Ramirez-Matias and her brother Jorge with
adoptive parents.
Decl. of Matilde Florintina Ramirez Matias (“Decl.”) at 1 (A.R. 382).
Ramirez-Matias trained to be an accountant; Jorge, a teacher. Id.
In 1998, Ramirez-Matias and her common law husband, Mariano Pablo Matias, had their
first child: Jayson. Id. at 1–2 (A.R. 382–83). At the end of that year, Mariano left Guatemala
for the United States, and Ramirez-Matias began working at a small bank in Todos Santos. Id. at
2 (A.R. 383).
Her troubles started soon thereafter. In the summer of 1999, a police officer entered
Ramirez-Matias’s bank and threatened to kill her. Id. at 3 (A.R. 384). She thought this was a
joke. Id. But the threats continued. Id. at 3–4 (A.R. 384–85). And one night in November,
while Ramirez-Matias walked home from work alone, two police officers apprehended her,
accused her family of being guerrillas, and raped her. Id. at 4 (A.R. 385).
Ramirez-Matias stayed in Guatemala:
she felt that she had achieved a position of
prominence in her community and refused to abandon it.
Id.
But the police continued
threatening her. Id. at 4–5 (A.R. 385–86). In August 2000, a police officer in a car ran over
Jayson, then two years old. 9/26/02 Oral Decision of the Immigration Judge (“9/26/02 Oral
Decision”) at 5 (A.R. 51). He died after a five-day hospital stay. Decl. at 5 (A.R. 386). The
police department maintained that the officer who killed Jayson had been drunk and that
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Jayson’s death was an accident. Id. Ramirez-Matias believes that it was an intentional attempt
to “torture” her. Id.
Mariano returned to Guatemala to investigate his son’s death. Id.; 9/26/02 Oral Decision
at 5 (A.R. 51). The police reacted swiftly. Officers raped Ramirez-Matias again, telling her that
they would kill her if Mariano continued his investigation. Decl. at 5–6 (A.R. 386–87). And in
late August, Mariano received multiple phone calls from people threatening to kill him and
Ramirez-Matias if he continued probing Jayson’s death. Id. at 6 (A.R. 387). It was then that
Ramirez-Matias felt she had to flee Guatemala. Id.
Ramirez-Matias and Mariano illegally entered the United States through El Paso on
September 10, 2000. 9/26/02 Oral Decision at 2 (A.R. 48); Notice to Appear (Matilde Florintina
Ramirez-Matias) at 1 (A.R. 463). They were arrested that day and received Notices to Appear,
charging them as removable aliens under 8 U.S.C. § 1182(a)(6)(A)(i). 10/5/00 IJ Hr’g Tr. at 2
(A.R. 59); Notice to Appear (Mariano Pablo-Matias) at 1 (A.R. 358); Notice to Appear (Matilde
Florintina Ramirez-Matias) at 1 (A.R. 463). The two appeared at a hearing before an IJ in El
Paso on October 12, 2000, and, through an accredited representative, conceded removability and
admitted the factual allegations in their Notices to Appear. 10/12/00 Hr’g Tr. at 4–5 (A.R. 62–
63).
The couple then moved to Michigan, where Ramirez-Matias gave birth to her second
child, Ashley, in August 2001. Birth Certificate (A.R. 164). They retained another accredited
representative, Matthew Monroe. Decl. at 7 (A.R. 388). But Monroe never asked Ramirez-
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Matias about her reasons for fleeing Guatemala; he spoke only to Mariano. Id. And RamirezMatias—afraid that her husband might blame her for being sexually assaulted—never disclosed
the fact that she had been raped. Id. at 6 (AR. 387).
Mariano filed an Application for Asylum and Withholding of Removal on January 25,
2002, seeking withholding under the Immigration and Nationality Act (“INA”), protection under
the Convention Against Torture (“CAT”), and asylum.
Application for Asylum and for
Withholding of Removal at 1, 5, (A.R. 135, 139). He listed Ramirez-Matias as a derivative
beneficiary.1 Id. at 2 (A.R. 136). But Ramirez-Matias did not testify at the September 26, 2002
merits hearing on that Application. 9/26/02 Hr’g Tr. (A.R. 82). The IJ rejected the Application
in an oral decision and ordered Ramirez-Matias and Mariano to return to Guatemala. 9/26/02
Oral Decision at 8–9 (A.R. 54–55).
Mariano and Ramirez-Matias appealed to the BIA. Notice of Appeal at 1 (A.R. 35). The
BIA dismissed their appeal in a written decision on July 29, 2003. 7/29/03 BIA Decision at 1–2
(A.R. 2–3). Three months later, Ramirez-Matias’s brother Jorge was murdered in Guatemala;
she claims that witnesses report that police killed him. Decl. at 8 (A.R. 389). Ramirez-Matias
recalls that she “was a complete wreck” after her brother’s death. Id. In June 2004, Mariano
returned to Guatemala, leaving Ramirez-Matias in the United States. Id.
Over the following decade, Ramirez-Matias made periodic attempts to pursue her
immigration case. She avers that in 2007, while visiting family in Oakland, California, she
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This was an error: As the Government notes, “the [INA] does not permit derivative withholding of
removal under any circumstances.” In Re A-K-, 24 I. & N. Dec. 275, 279 (BIA 2007).
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visited the East Bay Sanctuary Covenant, who referred her to an attorney who “didn’t care about
[her] case.” Decl. at 9 (A.R. 390). Ramirez-Matias moved to Oakland in July 2010, where she
gave birth to her third child, Gloria, in August. Id. She renewed her efforts to find legal
assistance in California, but because it “ha[d] been so long” since the BIA’s decision she “was
rejected everywhere [she] went.” Id. at 10 (A.R. 391). It was not until March 26, 2014, that
Ramirez-Matias found her current counsel. Id.
On June 27, 2014—nearly eleven years after the BIA rejected her and Mariano’s
appeal—Ramirez-Matias filed a motion to reopen her case on the ground of ineffective
assistance of counsel. Resp. Mot. to Reopen at 2 (A.R. 373). Because she filed well after the
INA’s ninety-day deadline, Ramirez-Matias requested equitable tolling. Id. at 2, 6–7 (A.R. 373,
377–78); see 8 U.S.C. § 1229a(c)(7)(C)(i). In support of this request, Ramirez-Matias alleged
that between 2003 and 2014 she “was psychologically impaired”: she claimed that she suffered
from “PTSD, Major Depressive Disorder and Persistent Complicated Bereavement Disorder.”
Resp. Mot. to Reopen at 7 (A.R. 378). In light of those conditions, Ramirez-Matias argued, she
had “acted with all due diligence” in pursuing her immigration case and was thus entitled to
equitable tolling. Id. Ramirez-Matias attached three documents to her motion: (1) a declaration
in which she recounted her personal history; (2) a completed I-589 Application seeking asylum,
withholding of removal, and CAT protection; and (3) a psychological evaluation completed by a
California social worker who interviewed Ramirez-Matias in April 2014. Id. at 2 (A.R. 373).
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On September 30, 2014, the BIA denied Ramirez-Matias’s motion to reopen in a written
decision. 9/30/14 BIA Decision at 1 (A.R. 365). “A petitioner seeking equitable tolling,” the
BIA wrote, “must establish due diligence.” Id. “Due diligence,” it added, “requires an alien to
prove that the delay in filing the motion to reopen was due to an exceptional circumstance
beyond his control.” Id. (quoting Tapia-Martinez v. Gonzales, 482 F.3d 417, 423 (6th Cir.
2007)). Although the BIA noted that Ramirez-Matias’s life had been “tragic,” it observed that
she had nonetheless raised children, traveled across the country, and “otherwise live[d] her life in
the United States.” 9/30/14 BIA Decision at 1 (A.R. 365). Over the course of roughly a decade,
it wrote, Ramirez-Matias had “attempted to contact several attorneys.” Id. In turn, the BIA
concluded that Ramirez-Matias had failed to prove that her “decade long delay in filing the
motion was due to an exceptional circumstance beyond her control.” Id. Ramirez-Matias then
timely filed her petition for review.
II. ANALYSIS
Both parties agree that Ramirez-Matias filed her motion to reopen after the INA’s ninetyday deadline. Pet’r Br. at 9; Resp. Br. at 13. And both agree that in denying that motion, the
BIA concluded that Ramirez-Matias had failed to demonstrate “due diligence” without reaching
the merits of her ineffective assistance claim. Pet’r Br. at 10–11; Resp. Br. at 12 n.4. RamirezMatias argues that that conclusion was erroneous. We disagree.
“We review the BIA’s denial of a motion to reopen under an abuse-of-discretion
standard.” Barry v. Mukasey, 524 F.3d 721, 724 (6th Cir. 2008); see 8 C.F.R. § 1003.2(a) (“The
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decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board,
subject to the restrictions of this section.”). “We will find an abuse of discretion where ‘denial of
[the] motion to reopen . . . was made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis such as invidious discrimination.’”
Zhang v. Mukasey, 543 F.3d 851, 854 (6th Cir. 2008) (quoting Allabani v. Gonzales, 402 F.3d
668, 675 (6th Cir. 2005)). This is a high bar: “Because the BIA has such broad discretion, a
party seeking reopening . . . bears a ‘heavy burden.’” Barry, 524 F.3d at 724 (quoting Alizoti v.
Gonzales, 477 F.3d 448, 451 (6th Cir. 2007)).
In general, “a party may file only one motion to reopen deportation or exclusion
proceedings (whether before the Board or the Immigration Judge) and that motion must be filed
no later than 90 days after the date on which the final administrative decision was rendered in the
proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). But “[w]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 v. Holder, 615 F.3d 616, 620 (6th Cir. 2010).
“To determine whether to apply equitable tolling to time-barred claims, we generally
consider five factors that include: ‘(1) the petitioner’s lack of notice of the filing requirement;
(2) the petitioner’s lack of constructive knowledge of the filing requirement; (3) diligence in
pursuing one’s rights; (4) absence of prejudice to the respondent; and (5) the petitioner’s
reasonableness in remaining ignorant of the legal requirement for filing his claim.’” Barry,
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524 F.3d at 724 (quoting Ajazi v. Gonzales, 216 F. App’x 515, 518 (6th Cir. 2007)). The BIA
focused on this third factor—diligence—in rejecting Ramirez-Matias’s request for equitable
tolling. We do the same. See Pepaj v. Holder, 321 F. App’x 468, 472 (6th Cir. 2009) (“Indeed,
we previously have denied equitable tolling when the petitioner’s only error was a failure to
exercise due diligence.”).
To determine whether a petitioner has been diligent, we “look[] to whether . . . [she]
could reasonably have been expected to file the motion to reopen earlier.” Cifuentes-Calderon v.
Holder, 535 F. App’x 490, 491 (6th Cir. 2013). Timing is important. We consider whether a
petitioner seeking equitable tolling exercised due diligence “before learning the status of his
appeal . . . [and] after the petitioner learned of the need to file a motion to reopen.” Mezo,
615 F.3d at 621 (internal quotation marks and citations omitted). But we also recognize that “the
mere passage of time—even a lot of time—before an alien files a motion to reopen does not
necessarily mean she was not diligent.” Gordillo v. Holder, 640 F.3d 700, 705 (6th Cir. 2011).
Accordingly, we have held that “[d]ue diligence requires an alien to prove that the delay in filing
the motion to reopen was due to an exceptional circumstance beyond his control.” Barry,
524 F.3d at 724 (internal quotation marks omitted).
The question before us, then, is narrow: did the BIA abuse its discretion by determining
that Ramirez-Matias was not diligent and refusing to equitably toll her filing deadline? We
conclude that it did not.
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Ramirez-Matias argues that her “diagnosed medical and psychological impairments is an
exceptional circumstance beyond her control.” Pet’r Br. at 11. The psychological report she
appended to her motion to reopen reveals that she suffers from PTSD, Major Depressive
Disorder, and Persistent Complex Bereavement Disorder. Psychological Evaluation at 4 (A.R.
421).
But she cites no case law discussing whether such impairments can constitute an
“exceptional circumstance” that would justify equitably tolling the INA’s statute of limitations.
In the habeas context, we recognize “that a petitioner’s mental incompetence” can
constitute “an extraordinary circumstance that may equitably toll AEDPA’s one-year statute of
limitations.”
Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011).
A showing of mental
incompetence alone, however, is not enough. Rather, before we will equitably toll AEDPA’s
statute of limitations, we require a petitioner to demonstrate both that: “(1) he is mentally
incompetent and (2) his mental incompetence caused his failure to comply with AEDPA’s statute
of limitations.” Id. at 742; see McSwain v. Davis, 287 F. App’x 450, 456–57 (6th Cir. 2008)
(declining to equitably toll AEDPA’s statute of limitations where record evidence established
petitioner’s mental illness but did not establish that illness caused petitioner to miss filing
deadline).
We think that this requirement of “a causal link,” Ata, 622 F.3d at 742, proves fatal for
Ramirez-Matias’s request for equitable tolling. The BIA was correct: the facts of RamirezMatias’s life—her sexual assaults, her child’s death, her brother’s murder—are tragic. And we
do not doubt that those tragedies have caused her great psychological suffering. But “[i]llness—
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mental or physical—tolls a statute of limitations only if it actually prevents the sufferer from
pursuing his legal rights during the limitations period.” Price v. Lewis, 119 F. App’x 725, 726
(6th Cir. 2005) (emphasis added). In turn, “[t]he exceptional circumstances that would justify
equitable tolling on the basis of mental incapacity are not present when the party who seeks the
tolling has been able to pursue his or her legal claims during the period of his or her alleged
mental incapacity.” Id. (citation omitted). Such is the case here.
Ramirez-Matias argues that the fact that she “sought legal assistance on multiple
occasions” is a testament to her “diligence” in the face of overwhelming personal obstacles.
Pet’r Br. at 13–14. To the contrary, we agree with the BIA that her periodic efforts to obtain
legal help cut against her. From 2003 through 2014, Ramirez-Matias reached out to a number of
attorneys—in multiple states—to discuss her immigrant status.
That those efforts proved
unsuccessful does not change the fact that Ramirez-Matias repeatedly attempted to pursue her
legal claims over the course of a decade. This suggests that Ramirez-Matias’s psychological
impairments did not, in fact, prevent her from timely filing her motion to reopen.
Accordingly, we conclude that the BIA did not abuse its discretion when it determined
that Ramirez-Matias failed to demonstrate that her psychological impairments constituted an
“exceptional circumstance” that would warrant equitable tolling.
III. CONCLUSION
For the reasons set forth above, we DENY the petition for review.
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