5 Cir: BIA can’t impose due diligence requirement on motion to reopen pre-1992 proceeding

By University of Denver Sturm College of Law

Mar 6, 2012

U.S. Court of Appeals for the Fifth Circuit held thatthe BIA cannot impose a due diligence requirement on motions to reopen proceedings that began prior to 1992.Rodriguez-Manzano v. Holder, No. 09-60795, slip op. (5th Cir. Jan. 9, 2012) (Wiener, Clement, and Elrod, JJ.). Judge Elrod wrote the panel’s decision.

This case involved an individual who entered without inspection. He was placed in deportation proceedings in 1987 and ordered deported in absentia in 1988. Almost twenty years later he filed a motion to reopen through new counsel claiming that his original counsel provided ineffective assistance. The immigration judge denied the motion to reopen on the basis that Rodriguez-Manzano failed to comply with Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), in which the Board set out three requirements for motions to reopen based on allegedly ineffective assistance. Rodriguez-Manzano No. 09-60795, slip op. at 2.

“Ineffective assistance of counsel can justify reopening deportation proceedings if the alien (1) provides an affidavit attesting to the relevant facts, including a statement of the terms of the attorney-client agreement; (2) informs counsel of the allegations and allows counsel an opportunity to respond; and (3) files a grievance or explains why a grievance has not been filed against the offending attorney.” Rodriguez-Manzano No. 09-60795, slip op. at 6-7.

The BIA initially held that his motion to reopen was timely, but affirmed the IJ’s conclusion that Rodriguez-Manzano failed to comply with Lozada. Rodriguez-Manzano No. 09-60795, slip op. at 3. After Rodriguez-Manzano filed a second motion to reopen (which the Fifth Circuit characterized as a motion to reconsider for the sake of clarity) accompanied by a copy of a complaint to the state bar regarding his original representative’s performance, the BIA held that he complied with Lozada but denied the motion “reasoning that Rodriguez-Manzano had failed to pursue his claim with due diligence.” Rodriguez-Manzano No. 09-60795, slip op. at 3.

As an initial matter, the Fifth Circuit explained that it has jurisdiction to consider Rodriguez-Manzano’s appeal because “[f]or deportation orders issued prior to 1992…there are no time limits on motions to reopen or reconsider,” thus the government incorrectly argued that the BIA could only grant the motion under its sua sponte authority. Rodriguez-Manzano No. 09-60795, slip op. at 5.

That said, the Fifth Circuit affirmed the BIA’s determination that Rodriguez-Manzano failed to comply with Lozada. Specifically, it concluded that “the BIA did not abuse its discretion by denying Rodriguez-Manzano’s initial motion to reopen” on the basis “that he had failed to meet Lozada’s second requirement”—namely, to inform the allegedly ineffective counsel of the allegations and allow him to respond. Rodriguez-Manzano No. 09-60795, slip op. at 7.

Despite affirming the BIA’s denial of the initial motion, the Fifth Circuit took issue with its denial of the second motion on the basis that Rodriguez-Manzano did not pursue it with due diligence. “Lozada imposed no due diligence requirement on motions to reopen based on claims of ineffective assistance of counsel,” the court explained. Rodriguez-Manzano No. 09-60795, slip op. at 8.

Moreover, “the BIA ignored its own precedent to impose the due diligence requirement in this case,” referring to Matter of Cruz Garcia, 22 I&N Dec. 1155, 1156 n.1 (BIA 1999), in which “the BIA held that current regulations that impose timing requirements on motions to reopen do not apply to motions to reopen deportation proceedings that commenced before 1992 like Rodriguez-Manzano’s.” Rodriguez-Manzano No. 09-60795, slip op. at 8.

The BIA’s decision to deny Rodriguez-Manzano’s second motion by imposing a due diligence requirement was particularly upsetting to the Fifth Circuit because the BIA had previously relied on Cruz Garcia “to state that Rodriguez-Manzano’s original motion was timely, and then abandoned it in order to justify rejecting Rodriguez-Manzano’s motion for reconsideration once he had complied with Lozada.” Rodriguez-Manzano No. 09-60795, slip op. at 9.

This, the Fifth Circuit concluded, amounts to arbitrary application of BIA precedent, which the BIA cannot do. “In re Cruz Garcia either applies or it does not. We hold that it does, and the BIA’s decision to ignore it after citing it approvingly in the same case was an abuse of discretion.” Rodriguez-Manzano No. 09-60795, slip op. at 9.