Oleksandr Romer v. Eric H. Holder, Jr., Attorney General

United States Court of Appeals
For the First Circuit
No. 10-2112
OLEKSANDR ROMER,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Boudin, and Thompson,
Circuit Judges.
Gregory Romanovsky for petitioner.
Lisa Morinelli, Attorney, Office of Immigration Litigation,
with whom Tony West, Assistant Attorney General, Civil Division,
and Douglas E. Ginsburg, Assistant Director, Office of Immigration
Litigation, were on brief for respondent.
December 12, 2011

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THOMPSON, Circuit Judge. Oleksandr Romer, a citizen of
Ukraine who is married to a United States citizen, asks that we
overturn an immigration-court decision denying his motion to reopen
removal proceedings as time- and number-barred, rejecting his
request that the time and number limitations be tolled, ordering
him removed to Ukraine, and imposing a ten-year bar on any
adjustment of status because he overstayed an earlier voluntary-
departure deadline. Finding that the immigration court
inadequately explained its rationale for rejecting tolling and
imposing the ten-year bar, we grant the petition for review, vacate
the decision below, and remand.1
Romer entered the United States on a visitor's permit in
1999. He overstayed the permit, and the government initiated
removal proceedings. On November 8, 2005, an immigration judge
(IJ) granted Romer voluntary departure by March 8, 2006. In an
effort to remain in the country legally, Romer enlisted the
services of attorney Vladislav Sirota after (he says) Sirota told
him that he could successfully challenge the IJ's decision.
Judge Boudin writes separately to express his quite 1
reasonable view that the IJ conducted so little substantive
analysis because she found Romer to be not credible and therefore
unable to meet his evidentiary burden. We see the case a little
differently, but agree with him that if the IJ intended an adverse
credibility determination then she did not adequately explain that
conclusion. In any event, the fact that the IJ's decision is
susceptible of significantly different but still reasonable
readings further demonstrates its overall insufficiency.
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Sirota's first order of business was to file a timely
motion to reopen removal proceedings — Romer's first such motion.
The IJ denied the motion on January 16, 2006, and mailed a copy to
Sirota; Sirota (Romer says) never passed the message on to him.
And so Romer remained in the country while his voluntary-departure
deadline came and went.
Beginning in November 2005 and continuing for years,
Romer and his wife (they say) called Sirota's office once every few
months to find out how the case was progressing. They say they
were rarely able to speak directly with Sirota, but that they were
often reassured by staff that cases like his can take time. They
also say Sirota's office advised them that Romer did not need to
leave the country and could wait out his case's resolution — even
after immigration officers came to his home looking for him. In
2008, Sirota sought an additional $4,000 from Romer for another
motion, claiming he had to apprise the immigration court of Romer's
wife's change from lawful permanent resident to citizen. Romer
paid the $4,000 fee in full.
On April 15, 2010, Romer was arrested, and he has
remained in custody ever since. On April 25, 2010, an attorney at
Sirota's firm filed a motion to reopen — Romer's second — that was
nearly a carbon-copy of the first. The IJ again denied the motion,
observing that Romer had already reached his limit of one motion to
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reopen under 8 C.F.R. § 1003.23(b). The IJ further determined 2
that, because Romer had overstayed his voluntary departure period,
8 U.S.C. § 1229c(d)(1)(B) imposed an absolute ten-year bar on any 3
adjustment of status.
Several days later, Romer's wife hired attorney Gregory
Romanovsky to help Romer out of his predicament. Romanovsky filed
another motion to reopen — Romer's third — this time based on
Sirota's alleged incompetence and the case Matter of Lozada, 19 I.
& N. Dec. 637 (B.I.A. 1988). Romanovsky also argued that the time 4 5
and number limitations of § 1003.23(b) should be equitably tolled
because Romer diligently pursued what he thought were legitimate
means to remain in the country, and that the ten-year bar should
not apply because Romer did not voluntarily overstay his term for
"Subject to [certain] exceptions" not applicable to this 2
case, "a party may file only one motion to reconsider and one
motion to reopen proceedings."
"[I]f an alien is permitted to depart voluntarily under this 3
section and voluntarily fails to depart the United States within
the time period specified, the alien . . . (B) shall be ineligible,
for a period of 10 years, to receive any further relief under this
section and sections 1229b, 1255, 1258, and 1259 of this title."
To prevail on a motion to reopen for ineffective assistance 4
of counsel under Matter of Lozada, a claimant must (1) include an
affidavit describing the allegedly incompetent attorney's actions,
(2) give the attorney notice and an opportunity to respond, and (3)
submit a complaint to the appropriate bar authority. Dawoud v.
Holder, 561 F.3d 31, 34 n.3 (1st Cir. 2009). It is undisputed that
Romer met these procedural requirements.
8 C.F.R. § 1003.23(b)(1) and 8 U.S.C. § 1229a(c)(7)(C)(i) 5
both require that a motion to reopen be filed no more than ninety
days after the entry of a final order of removal.
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departure but instead reasonably relied on counsel's advice that he
could remain in the United States.
For the third time, the immigration court denied Romer's
motion to reopen. The IJ brushed aside Romer's claim that he had
been misled, concluding that the new allegations were nothing more
than "excuses" for disregarding the court's then-five-year-old
voluntary-departure order. The Board of Immigration Appeals (BIA)
affirmed without comment, and this appeal followed. We have
jurisdiction under 8 U.S.C. § 1252. See Neves v. Holder, 613 F.3d
30, 35 (1st Cir. 2010); see also Kucana v. Holder, 130 S. Ct. 827,
840 (2010).
Where the BIA affirms without issuing an opinion, we
focus our review on the IJ's decision. Castillo-Diaz v. Holder,
562 F.3d 23, 26 (1st Cir. 2009). We review the denial of a motion
to reopen for abuse of discretion. Aponte v. Holder, 610 F.3d 1,
4 (1st Cir. 2010). Abuse-of-discretion review entails significant
deference to the IJ's fact-finding and de novo review of any legal
conclusions. Vas dos Reis v. Holder, 606 F.3d 1, 3 (1st Cir.
2010). The abuse-of-discretion standard also means that we review
immigration courts' explanations for at least minimal adequacy,
"because 'cursory, summary or conclusory statements . . . leave us
to presume nothing other than an abuse of discretion.'" Aponte,
610 F.3d at 4 (quoting Onwuamaegbu v. Gonzales, 470 F.3d 405, 412
(1st Cir. 2006)). In the end, then, "we will vacate the decision
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below if the [immigration court] committed a material error of law
or failed to articulate its reasoning adequately." Id. at 5.
Here, we will apply this standard to Romer's two arguments: that
the time and number restrictions on his motion to reopen should be
equitably tolled, and that imposition of the ten-year adjustment-
of-status bar was inappropriate because his failure to timely
depart was not voluntary.
First, Romer asks us to find that equitable
considerations allow him to escape the time and number restrictions
that doomed his motion to reopen. Generally speaking, "[t]he
motion to reopen is a procedural device [that] serves to ensure
that aliens get a fair chance to have their claims heard." Id.
(quoting Kucana, 130 S.Ct. at 837) (internal quotation marks
omitted). But motions to reopen come with significant limitations:
in the usual case, a party may file only one such motion, 8 C.F.R.
§ 1003.23(b)(1); 8 U.S.C. § 1229a(c)(7)(A), and must do so within
90 days of the final removal order, 8 U.S.C. § 1229a(c)(7)(C)(i).
In general, equitable principles may apply to ease the
strict application of procedural limitations. Bay State HMO
Management, Inc. v. Tingley Systems, Inc., 181 F.3d 174, 182 (1st
Cir. 1999) ("Equity demands that we not allow . . . draconian
result[s] to turn on . . . procedural quirk[s]."). These
principles' application in the immigration context is not always so
clear-cut; for example, the BIA has held that ten-year adjustment-
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of-status bars — the principle we discuss next — are not subject to
equitable easing. See In re Zmijewska, 24 I. & N. Dec. 87, 93
(B.I.A. 2007). But in the case of subsequent, untimely-filed
motions to reopen, at least one other circuit has held that
equitable tolling may apply to allow such a motion in the proper
case. See Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000).
Romer asks us to join the Second Circuit and apply
equitable tolling here, but we need not go so far. We have
previously declined to decide whether time and number restrictions
on motions to reopen may be equitably tolled, see Neves, 613 F.3d
at 35-36; Chedid v. Holder, 573 F.3d 33, 37 (1st Cir. 2009), and do
so again today. We conclude instead that the IJ produced (and the
BIA silently endorsed) a deficient decision that too casually
glossed over the question whether tolling might apply.
In rejecting Romer's request for relief from the time and
number restrictions on motions to reopen, the IJ's decision lacks
any equitable tolling analysis. Where Romer cited tolling cases
and discussed how they might apply to his situation, the IJ only
referred vaguely to Romer's "looking for ways or alternatives to
circumvent" his obligation to depart, and his "disregarding
deadlines and orders." These vague references ignore Romer's
argument, ignore arguably applicable law, and cross the line from
merely deficient to plainly arbitrary. See Aponte, 610 F.3d at 4;
see also Le Bin Zhu v. Holder, 622 F.3d 87, 91 (1st Cir. 2010)
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(abuse of discretion includes "exercis[ing] judgment in an
arbitrary . . . way"). Under these circumstances, we think remand
is necessary. On remand, the IJ should consider whether equitable
tolling is available to Romer on his motion to reopen.6
Second, Romer asks us to find that attorney misadvice
rendered his failure to timely depart involuntary, thus saving him
from the ten-year adjustment-of-status bar. The immigration code
plainly bars an alien who "voluntarily fails to depart" from
adjusting his immigration status for the next ten years. 8 U.S.C.
§ 1229c(d)(1). Earlier versions of section 1229c allowed
immigrants to escape the ten-year bar in cases involving
"exceptional circumstances," but Congress amended the statute in
1996 to remove that allowance and include instead the word
"voluntarily." See Zmijewska, 24 I. & N. Dec. at 90-91. We have
already mentioned above that the bar is not subject to equitable
easing, id. at 93, so the only way Romer can avoid application of
The government argues that we should affirm the IJ's 6
decision because Romer failed to establish prejudice, a necessary
element of an ineffective-assistance claim. See Orehhova v.
Gonzales, 417 F.3d 48, 52 (1st Cir. 2005). The IJ made no such
determination, and we would just as soon avoid usurping the
immigration courts' role on the cold record before us. The
government is, of course, free to raise this argument on remand.
We pause here to highlight one bizarre element of the
government's brief: as evidence of Romer's ill intent, the
government notes that Romer "still has not departed." Romer has
been in the custody of the United States for a year and a half, so
his failure to depart in that time can hardly be held against him.
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the ten-year bar is if his failure to depart was not "voluntary."7
Id.
Again, though, rather than going on to analyze the
voluntariness of Romer's failure to depart, we instead conclude
that the IJ's decision so inadequately deals with this argument
that it constitutes an abuse of discretion.
In imposing the ten-year bar against Romer, the IJ
offered nothing approaching reasoning. Again, Romer cited law that
could plausibly afford him relief. Again, the IJ ignored that law
and said she was "not convinced of the excuses provided by the
respondent." And again, the IJ's failure to engage with Romer's
arguments crossed the line from deficient to arbitrary. See
Aponte, 610 F.3d at 4. On remand, the IJ should consider whether
Romer's remaining in the country on counsel's erroneous and bad-
faith advice (a factual premise the IJ is free to accept or reject
on consideration of the evidence) rendered his noncompliance
involuntary.8
The IJ and BIA committed an abuse of discretion by
failing to address adequately Romer's potentially winning
There is also an exception for Violence-Against-Women-Act 7
petitioners, but this exception is not at issue here. See 8 U.S.C.
§ 1229c(d)(2).
We pause again to express further agreement with Judge 8
Boudin that the immigration courts should perhaps be more cautious
in invoking the ten-year bar, which can have drastic if not
draconian consequences for possibly well-meaning immigrants.
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arguments. For this reason, we grant the petition for review and 9
remand for consideration of (1) whether equitable principles mean
Romer's third motion to reopen is properly before the immigration
courts, and (2) whether Romer is indeed subject to the ten-year bar
on status adjustments because he remained in the country
voluntarily. So ordered.
-Concurring Opinion Follows-
We stress, however, that we take no position on these 9
arguments' ultimate merit.
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BOUDIN, Circuit Judge, concurring. In this case, Romer
filed a third motion to reopen his removal proceedings; five years
earlier he was granted a voluntary departure order. He contends
that he did not subsequently depart because he had filed a timely
motion to reopen the original order and--for a number of years--had
been misled by his counsel into believing that the motion was still
pending and that his voluntary departure commitment was suspended
during this pendency. In fact, the motion had been denied not long
after its filing.
The Immigration Judge ("IJ") denied the third motion to
reopen, indicating that she did not believe Romer's professions
that he had been misled. Romer's account of his counsel's alleged
misbehavior had some corroboration from his pastor and other
documents, but some evidence arguably cast doubt on his account.
Although the IJ found that Romer was merely "looking for ways" to
"circumvent" his promise to depart, the IJ did not grapple directly
with Romer's detailed explanation and the Board of Immigration
Appeals ("Board") merely affirmed without explanation.
Even if Romer's contention that he had been misled is to
be believed, he faces two further problems: first, that under the
governing regulation and statute, 8 C.F.R. § 1003.23(b)(1); 8
U.S.C. § 1229a(c)(7)(A), 1229a(c)(7)(C)(i), he was permitted only
one motion to reopen filed within 90 days of the final order of
removal; and second, the IJ noted that a failure to depart
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voluntarily as promised implicated a ten year bar on the kind of
relief that Romer might otherwise pursue to remain in -- or return
to -- the country based on his wife's achievement of citizenship,
which occurred well after Romer agreed to the original order to
depart. 8 U.S.C. § 1229c(d)(1).
However, some circuits have allowed equitable tolling to
be applied to both the time and number bar on succeeding
petitions. As for the ten year bar, the Ninth Circuit, consistent 10
with a Board decision, has suggested that it might not apply if the
party who had voluntarily agreed to depart was misled or not
informed of the obligation to depart by counsel. These are issues 11
seemingly open in this circuit and can be deferred unless and until
they are necessarily posed and adequately briefed.
The IJ is perhaps not to be faulted for failing to
address those legal issues in detail because the IJ did not credit
Romer's profession that he had been misled by counsel. Unless
Romer had been misled, there would be little basis for any claim of
equitable tolling that might otherwise be available. But that
negative credibility finding, not adequately explained, does need
Zhao v. INS, 452 F.3d 154, 157-60 (2d Cir. 2006); Ray v. 10
Gonzales, 439 F.3d 582, 590 (9th Cir. 2006). But see Abdi v. U.S.
Att'y Gen., 430 F.3d 1148, 1150 (11th Cir. 2005). Compare Peralta
v. Holder, 567 F.3d 31, 34 (1st Cir. 2009)
See Singh v. Holder, 658 F.3d 879, 2011 U.S.App. LEXIS 11
14873, at *16-18; (9th Cir. 2011); In re Zmijewska, 24 I & N. Dec.
87, 93-94 (B.I.A. 2007)
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to be revisited--unless the Board wishes to assume the correctness
of Romer's factual allegations because its disposition of the legal
issues would be dispositive.
Finally, even if equitable tolling were ultimately
rejected, the IJ and Board might wish to be cautious in invoking
the ten-year bar on adjustment of status which could have adverse
consequences for Romer over and above removal. In principle, Romer
might be able to avoid the ten-year bar based on an exception
seemingly recognized by the Board (see note 11, above), even if he
is still removable at this time based on his original commitment to
depart voluntarily.
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