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Medina v. Whitaker

United States Court of Appeals, First Circuit

January 22, 2019

JOSE ALBERTO MEDINA, Petitioner,
v.
MATTHEW G. WHITAKER, ACTING ATTORNEY GENERAL [*], Respondent.

          PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

          Randy Olen on brief for petitioner.

          Virginia L. Gordon, Trial Attorney, Civil Division, U.S. Department of Justice, Joseph H. Hunt, Assistant Attorney General, Civil Division, and Leslie McKay, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.

          Before Lynch, Stahl, and Kayatta, Circuit Judges.

          STAHL, CIRCUIT JUDGE.

         Petitioner Jose Alberto Medina ("Medina"), a native and citizen of Guatemala, appeals an order of the Board of Immigration Appeals ("BIA") denying his motion to reopen his immigration proceedings as untimely. Medina concedes that the motion, which was filed nearly five years after the BIA ordered his removal, fell outside the 90-day limitations period set forth by statute and regulation. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, he asks this court to find that the BIA abused its discretion in rejecting his equitable tolling argument which was meant to render his motion timely. For the following reasons, we deny the petition.

         I. Factual and Procedural Background

         Medina entered the United States near San Ysidro, California, on February 5, 1993. In the summer of 1993, he filed an application for asylum with the Immigration and Naturalization Service ("INS").[1]

         On May 23, 2007, [2] INS began removal proceedings against Medina. In his written pleadings, Medina stated that he was seeking asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In the alternative, he sought voluntary departure. He appeared with his first counsel, Lidia Sanchez ("Sanchez"), before an Immigration Judge ("IJ") at a hearing on October 10, 2007.[3] At the hearing, counsel stated that Medina sought asylum and withholding of removal, and in the alternative, cancellation of removal, but expressly disavowed any claim for relief under the CAT. The IJ then continued the hearing to July 7, 2008.

         Because of multiple continuances, the hearing did not resume until June 16, 2011. On that date, Sanchez represented that Medina conceded removability but still sought cancellation of removal or, in the alternative, voluntary departure. Counsel further stated that Medina wished to withdraw his applications for asylum and withholding of removal. The IJ asked counsel to affirm that Medina understood that his withdrawal of those applications would be with prejudice, and she affirmed that he did so understand. Thereafter, Medina provided oral testimony, the content of which is not relevant for resolving this appeal. No other witnesses testified at the hearing.

         On October 6, 2011, the IJ denied Medina's application for cancellation of removal but granted a 60-day voluntary departure period. In short, the IJ found that Medina had failed to corroborate his credible testimony and failed to demonstrate that his removal would cause "exceptional and extremely unusual hardship," as required to obtain cancellation of removal, for him and his family, including two daughters who were U.S. citizens.

         On November 4, 2011, with the assistance of a new attorney, Medina filed a notice of appeal with the BIA. In a brief dated March 7, 2012, Medina raised several claims, arguing that he was unprepared for his prior hearing, that the IJ failed to provide him an opportunity to show that corroborating evidence could not be reasonably obtained, and that his first counsel's decision to withdraw his asylum claim was "suspect."

         The BIA dismissed the appeal on October 23, 2012, finding that Medina failed to meet his burden of "demonstrat[ing] eligibility for cancellation of removal." Because the 60-day period for voluntary departure provided by the IJ had passed, the BIA ordered Medina removed from the United States. Despite the removal order, however, it appears that Medina neither left the United States nor sought judicial review of the removal order.

         On August 21, 2017, with the assistance of his third (and current) counsel, Medina filed a motion to reopen his removal proceedings with the BIA. In his brief, he alleged that Sanchez rendered ineffective assistance when she withdrew his applications for asylum, withholding of removal, and protection under the CAT. He theorized that this was because she had been unprepared to "prosecute" his claims. He further represented that he had complied with the requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) for filing a motion to motion to reopen.[4] On that basis, Medina sought to reopen his removal proceedings, or ...


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