General Electric v. Union Planters Bank

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1317
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Luciano Hernandez-Moran, *
*
Petitioner, *
* Petition for Review of an Order of
v. * the Board of Immigration Appeals.
*
Alberto Gonzales, Attorney General *
of the United States, *
*
Respondent. *
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Submitted: February 14, 2005
Filed: May 20, 2005
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Before LOKEN, Chief Judge, RILEY, and SMITH, Circuit Judges.
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SMITH, Circuit Judge.
Luciano Hernandez-Moran appeals from the Board of Immigration Appeals
("BIA") denial of his motion to reopen. For reversal, Hernandez argues that his Fifth
Amendment due process rights were violated because his counsel was ineffective. We
affirm.
I. Background
Hernandez-Moran was a 66-year-old citizen of El Salvador who had been
living in the United States for 34 years. He only speaks Spanish, has no convictions,
and has three adult children who are permanent residents of the United States.

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1In March 2003, the functions of the Immigration and Naturalization Service
were transferred to the newly formed Department of Homeland Security (DHS). See,
Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25,
2002).
2The registry is the process for obtaining permanent residency for those who
entered the United States before January 1, 1972, and who have maintained
continuous residence. 8 U.S.C. § 1259.
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Hernandez-Moran applied for and obtained temporary residence status under the
Special Agricultural Worker Program. Later, the Immigration and Naturalization
Service terminated his temporary residence status for failure to submit certain
requested evidence. 1 Hernandez-Moran was subsequently charged with removal.
At the hearing, Hernandez-Moran, represented by attorney Opeolu Banwo,
admitted to removability but indicated that he intended to apply for relief from
deportation through the registry,2 as well as for cancellation of removal. The
immigration judge (IJ) set a two-month deadline for Hernandez-Moran to file his
application for relief. Banwo failed to either file an application or request an
extension of time to file, claiming that he had not obtained all of the supporting
documentation. At a calendar hearing, the IJ determined that Hernandez-Moran's
application for relief had been abandoned. During that hearing, Banwo admitted his
failure to file Hernandez-Moran's application for relief. The hearing was not
translated into Spanish and although the IJ granted Hernandez-Moran voluntary
departure, the IJ failed to inform him of this.
Following the calendar hearing, Banwo had no further contact with Hernandez-
Moran. However, Banwo appealed Hernandez-Moran's case to the BIA, which
administratively closed the case to allow him to apply under the Temporary Protected
Status Program. The BIA's decision was mailed to Banwo's office and to Hernandez-
Moran's address of record. Neither Banwo nor the BIA had Hernandez-Moran's
current address so he was never informed of the BIA's decision. No Temporary

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Protected Status Program application was filed on Hernandez-Moran's behalf. As a
result, DHS filed a motion to reinstate removal proceedings and notified Banwo. The
BIA affirmed the IJ's decision that Hernandez-Moran abandoned his application and
granted voluntary departure. Again the BIA's order was mailed to Hernandez-Moran's
address of record.
Subsequently, a "Notice to Obligor to Deliver Alien" was sent to Hernandez-
Moran's current address. Following receipt of the notice, Hernandez-Moran with new
counsel, filed a motion to reopen removal proceedings and for a stay of removal. He
filed the motion more than 90 days after the BIA's final decision, arguing ineffective
assistance of counsel. Hernandez-Moran alleged that he informed Banwo about his
ineffective assistance claim and gave Banwo an opportunity to respond. With his
motion, Hernandez-Moran submitted a letter of complaint to the state bar alleging that
he and Banwo never communicated effectively because he spoke Spanish and Banwo
did not. Hernandez-Moran also complained that he had no interpreter at the
immigration proceedings.
The BIA granted Hernandez-Moran a stay but later denied his motion to reopen
removal proceedings based on ineffective assistance of counsel, under Matter of
Lozada, 19 I. & N. Dec. 637, 639 (BIA), aff'd, 857 F.2d 10 (1st Cir. 1988).
Hernandez-Moran filed a petition for review and a motion to stay removal with this
court. We granted a temporary stay of deportation but later vacated the stay.
II. Discussion
We review the BIA's denial of a motion to reopen for abuse of discretion. INS
v. Doherty, 502 U.S. 314, 324 (1992); Gebremaria v. Ashcroft, 378 F.3d 734, 738
(8th Cir. 2004). Such motions are disfavored "because of the strong public interest
in bringing litigation to a close, and because '[g]ranting such motions too freely will
permit endless delay of deportation by aliens creative and fertile enough to
continuously produce new and material facts sufficient to establish a prima facie

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case.'" Id. at 737 (quoting INS v. Abudu, 485 U.S. 94, 108 (1988)). The party moving
to reopen bears a heavy burden. Doherty, 502 U.S. at 323; Abudu, 485 U.S. at 110.
"An abuse of discretion occurs if a decision is without rational explanation, departs
from established policies, invidiously discriminates against a particular race or group,
or where the agency fails to consider all factors presented by the alien or distorts
important aspects of the claim." Feleke v. INS, 118 F.3d 594, 598 (8th Cir. 1997)
(holding in context of an asylum claim).
Hernandez-Moran argues that his first counsel, Banwo, was ineffective in not
filing his petitions on time, violating his Fifth Amendment due process rights.
Consequently, Hernandez-Moran contends that equitable tolling of the filing statute
was appropriate, see Heideman v. PFL, Inc., 904 F.2d 1262, 1265–67 (8th Cir. 1990),
and the IJ abused his discretion in failing to apply equitable tolling. Hernandez-
Moran also argues that he substantially complied with the requirements of Lozada
and that the BIA's assertions that he made no attempt to bring an interpreter and failed
to provide his most recent address to Banwo are unsupported conclusions. We
disagree.
We believe that Hernandez-Moran's ineffective assistance of counsel claim
fails under the Lozada requirements. Lozada requires that Hernandez-Moran: (1)
submit an affidavit detailing the agreement between him and Banwo; (2) show that
the allegations of ineffective assistance were communicated to Banwo and that
Banwo was given an opportunity to respond; and (3) submit a statement as to whether
a complaint was filed against Banwo with the disciplinary authority of the state bar.
Lozada, 19 I. & N. Dec. at 639. Hernandez-Moran did not meet any of these
requirements. Additionally, Hernandez-Moran failed to prove that he provided Banwo
with his current address. In fact, he had not communicated with Banwo in the four
years following the first hearing.

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To attempt to comply with the third Lozada requirement, Hernandez-Moran
submitted a one-page letter that was allegedly sent to the state bar. This letter was not
in affidavit form as required. The letter was not sent certified and had no official
stamp or other evidence that it had been received by the bar. Moreover, the letter
simply stated that Hernandez-Moran could not communicate effectively with Banwo
due to the language barrier, that he did not have an interpreter at the immigration
court, and that he did not understand the proceedings. The letter did not show that
Banwo failed to comply with filing deadlines.
Under 8 U.S.C. § 1229a(c)(6)(C)(i), a motion to reopen must be filed within
90 days of the entry of a final administrative order of removal. See 8 C.F.R. §
1003.2(c)(2) (providing the motion must be filed no later than 90 days after the date
of the final administrative decision). Hernandez-Moran filed his motion nine days
late. "[E]quitable tolling is granted sparingly. Extraordinary circumstances far beyond
the litigant's control must have prevented timely filing." United States v. Marcello,
212 F.3d 1005, 1010 (7th Cir.), cert. denied, 531 U.S. 878 (2000). Hernandez-Moran
"bears the burden of making a prima facie showing of entitlement to equitable tolling,
and therefore of filling in any gaps in the record regarding whether his case is a case
warranting equitable relief." Jobe v. I.N.S., 238 F.3d 96, 101 n.8 (1st Cir. 2001) (en
banc).
Hernandez-Moran has not shown extraordinary circumstances far beyond his
control. He failed to give the BIA or Banwo his current address and did not submit
any evidence that Banwo still represented him. Also, Hernandez-Moran failed to
show that Banwo's alleged negligence caused his failure to act timely on his motion
to reopen as there was no indication that Banwo represented Hernandez-Moran at that
time. As to the language barrier, Hernandez-Moran, who had been living in the
United States for almost 30 years, failed to request an interpreter from the IJ or
Banwo, and never brought along anyone to aid in communication. Hernandez-
Moran's arguments are meritless.

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III. Conclusion
We affirm the decision of the BIA denying Hernandez-Moran's motion to
reopen.
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