Opinion
21-1856
08-22-2024
SANDRA Y. CABALLERO-COTO and ANGI M. ALEMAN-CABALLERO, Petitioners, v. MERRICK B. GARLAND, Attorney General of the United States, Respondent.
NONPRECEDENTIAL DISPOSITION
Argued October 4, 2022
Petition for Review of an Order of the Board of Immigration Appeals. No. A 208-173-584 No. A 208-173-585
Before MICHAEL Y. SCUDDER, Circuit Judge AMY J. ST. EVE, Circuit Judge CANDACE JACKSON-AKIWUMI, Circuit Judge
ORDER
Sandra Caballero-Coto, a Honduran citizen, petitions for review of the Board of Immigration Appeal's denial of her motion to reopen removal proceedings based on ineffective assistance of counsel. Because the Board did not abuse its discretion in finding that Caballero-Coto failed to meet the procedural requirements of Matter of Lozada, 19 I. &N. Dec. 637 (BIA 1988), we deny the petition for review.
I. Background
Sandra Caballero-Coto and her then seven-year-old daughter Angi, unlawfully entered the United States near Hidalgo, Texas, in May 2015. Caballero sought to join her husband who had come to the United States a year earlier. Caballero was taken into custody and placed in expedited removal proceedings for having entered without admission or inspection. See 8 U.S.C. § 1225(b)(1)(B)(v).
Because Caballero-Coto refers to herself in the briefs as Caballero, so will we. Also, because Caballero's daughter, Angi, is a rider on Caballero's application, our references to Caballero's motion refer to both their claims.
At that time, Caballero expressed a fear of returning to Honduras based on a violent incident that occurred just outside her house. Within earshot, her brother- and sister-in law were gunned down by a man from a local family with gang connections and a reputation for "kill[ing] and ra[ping ] women." When Caballero went outside to investigate, the man pointed a gun at her and later told neighbors that he wanted to kill her. Her fear was deemed credible by an asylum officer, and she was referred to an Immigration Judge (IJ) for adjudication of her claim for asylum. Meanwhile, the Department of Homeland Security served Caballero with a Notice to Appear (NTA) charging her with inadmissibility under 8 U.S.C. § 1182(a)(7)(A)(i) for not possessing valid entry documents.
In May 2016, at a hearing before an IJ, Caballero-through her attorney Mario Godoy-admitted the allegations in the NTA and conceded the charge of inadmissibility. She submitted applications requesting asylum, withholding of removal, and protection under the Convention Against Torture (CAT). In her applications, Caballero alleged that if she were returned to Honduras, she would be targeted by gang members on account of her membership in two particular social groups: (1) members of her husband's family, and (2) witnesses to a murder. For months after the killings, Caballero added, the man who killed her family members had asked neighbors about her whereabouts and continued making threats against her, leading the neighbors to warn her never to return, for her own safety.
In October 2017, the IJ denied Caballero's applications and ordered her removed to Honduras. The IJ explained that Caballero did not meet her burden to show eligibility for any form of relief. The IJ found that Caballero had not demonstrated a sufficient nexus between the threats against her and a protected ground, and she did not establish that she had suffered past persecution or had a well-founded fear of future persecution on the basis of a protected ground. The IJ also found that Caballero had not demonstrated a clear probability of future torture because she was not tortured in the past, was able to relocate within Honduras to avoid harm, and did not provide evidence showing that the Honduran government would engage in or acquiesce to her torture.
In November 2017, Godoy filed a notice of appeal, broadly challenging the denial of relief, but noting that a separate appeal brief would be filed later. The Board ordered that the brief be filed no later than July 17, 2018, and warned that a failure to do so could result in a summary dismissal of the appeal. On July 12, Godoy sought and was granted an extension of the filing deadline, until August 7. On August 6, however, Godoy informed Caballero that he would not be submitting an appeal brief because-as she recounted-he "did not find much case law in her favor," she had no further legal recourse, and she should wait for "immigration" to contact her. Caballero took no further steps, and in October 2018, the Board summarily dismissed her appeal.
On January 30, 2019, Caballero's newly hired counsel, Chandler Carney, filed a motion to reopen based on Godoy's ineffective assistance. According to the affidavit attached to the motion to reopen, Caballero had become uneasy following Godoy's advice and consulted Carney about her immigration status. It was at this point, in December 2018, that she discovered the "very tough and time-sensitive situation" Godoy left her in. She hired Carney on January 10, 2019, to seek reopening based on Godoy's ineffectiveness. Carney called Godoy that same day to, as Caballero phrases it in her motion to reopen, "inform him of the allegations." During the call, Godoy told Carney that he had submitted the Notice of Appeal only as a courtesy to Caballero. Godoy also told Carney he had notified Caballero a day before the brief was due that he would not be filing anything on her behalf. Godoy confirmed for Carney that he had represented Caballero throughout the proceedings and-again, in Caballero's words in her motion to reopen- left her "without any viable option when he decided to no longer work on the case." Caballero filed a complaint against Godoy on January 28, 2019, with the Attorney Registration and Discipline Commission of the Supreme Court of Illinois (ARDC).
Caballero's Request for Investigation (as the ARDC refers to these complaints) is dated January 28, 2019, but does not include proof of delivery to the ARDC.
On April 14, 2019, the Board denied Caballero's motion as untimely, as it was filed more than 90 days after the Board issued its final administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C)(i). The Board declined to equitably toll the 90-day filing deadline because Caballero did not exercise the requisite due diligence in filing her motion to reopen and, further, she had not met all of the procedural requirements for pursuing ineffective-assistance claims under Matter of Lozada, 19 I. &N. Dec. 637 (BIA 1988), because there was no evidence that she adequately informed Godoy of the allegations against him or gave him sufficient opportunity to respond to those allegations.
II. Discussion
Caballero argues that the BIA erred by denying her motion to reopen because she was diligent and that she did meet the procedural requirements to bring a claim based on the ineffectiveness of former counsel. We review the BIA's denial of a motion to reopen for abuse of discretion. See Sembhi v. Sessions, 897 F.3d 886, 891 (7th Cir. 2018).
If a motion to reopen based on ineffective assistance of counsel is filed within the 90 days permitted by statute, see 8 U.S.C. § 1229a(c)(7)(A), (C)(i), the Board would turn immediately to the Lozada test. Sunita Patel v. Gonzales, 442 F.3d 1011, 1016 (7th Cir. 2006). But with an untimely motion, as here, the movant must first show that her situation warrants equitable tolling of the time limit. See Mata v. Lynch, 576 U.S. 143, 146 (2015); Sunita Patel, 442 F.3d at 1016. And equitable tolling, in turn, requires a showing of due diligence. Yusev v. Sessions, 851 F.3d 763, 767 (7th Cir. 2017). Due diligence is measured not by the length of the delay in seeking relief, but by "whether the claimant could reasonably have been expected to file earlier." Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir. 2005). Courts consider "whether a reasonable person in the plaintiff's position would have been aware of the possibility that [she] had suffered an injury." Sunita Patel, 442 F.3d at 1016 (internal citations omitted).
The Board identifies October 4, 2018-the date when it summarily dismissed Caballero's appeal-as the date when Caballero should have become aware of the possibility that she had suffered an injury. It therefore reasons that Caballero could reasonably have been expected to file her motion to reopen earlier than January 30, 2019.
Caballero contends that the Board erred in its equitable tolling analysis, first, by finding that she should have been aware of her injury on or around October 4, and second, by finding that she was not diligent in seeking relief. She argues that she did not become aware of her injury until December 19, when she consulted with Carney and was informed of the "very tough and time-sensitive situation" upon the dismissal of her appeal. Caballero further contends that she acted diligently by following Godoy's advice while he represented her, and that she promptly hired Carney (i.e., within a month) upon discovering the situation she was in.
It was unreasonable for the BIA to expect Caballero to seek reopening earlier than she did. We have recognized that a petitioner who does not speak English and is unfamiliar with the immigration process may have "more than the average difficulty in negotiating the shoals of American law." See Gaberov v. Mukasey, 516 F.3d 590, 596-97 (2008) (seven-month delay to find another lawyer and allow them to investigate was reasonable); Pervaiz, 405 F.3d at 491 (nine-month delay may be reasonable for certain non-citizens to find a new lawyer and allow them to research). The record reflects that Caballero spoke no English and was unfamiliar with the immigration process, so taking one month to hire a new lawyer to pursue a claim of ineffective assistance does not strike us as inexcusably long. Caballero's first meeting with Carney was on December 19, right before a period when many offices and businesses close in favor of holiday observances, making the delay until January 10 to hire Carney, and then until January 30 to file a motion to reopen, a reasonable one. Further, Caballero's delay in seeking out a new lawyer stemmed from Godoy's advice to await word from immigration officials. As we wrote in Sunita Patel, equitable tolling is the first hurdle that must be overcome to succeed on an untimely motion to reopen. The equitable tolling analysis should be fully and adequately addressed before the Board reaches the question whether the procedural requirements of Lozada have been met.
But even if Caballero were diligent in pursuing her claims, she still must comply with the procedural requirements of Lozada to succeed on her motion to reopen. Under Lozada, a petitioner who seeks reopening based on ineffective assistance of counsel must comply with three procedural requirements:
(1) submit[ing] an affidavit establishing that she had an agreement with counsel to represent her and detailing its terms; (2) present[ing] evidence that she has given notice to her counsel of the ineffectiveness claim and an opportunity to respond to the allegations, and include any response she has received; and (3) if the attorney violated his ethical or legal obligations, show[ing] that she has filed a complaint with the governing disciplinary authorities or explain[ing] why she has not done so.Jiang v. Holder, 639 F.3d 751, 755 (7th Cir. 2011) (citing Lozada, 19 I. &N. Dec. at 639). Satisfying the Lozada requirements is a necessary condition to reopen a case based on ineffective assistance of counsel, id. at 755, and thus the failure to meet any one of the requirements is a sufficient reason for the Board to deny reopening. Shehzad Patel v. Gonzales, 496 F.3d 829, 833 (7th Cir. 2007). Here, the Board concluded that Caballero did not meet Lozada's second requirement because she failed to adequately notify Godoy.
Our court has stated that the notification requirement requires a petitioner to "show" or "present evidence" that she has notified counsel. Marinov v. Holder, 687 F.3d 365, 368 (7th Cir. 2012); Shehzad Patel, 496 F.3d at 833. This requirement "reduce[s] the potential for abuse," Id. at 831, and helps "establish that a charge of ineffectiveness has enough substance to warrant the time and effort that will be required to resolve the claim on its merits," Sembhi, 897 F.3d at 892. But we have not explicitly stated the form in which a petitioner must submit evidence of notification to satisfy Lozada's second requirement.
We think that the most useful way to submit evidence of notification is a sworn document describing the time and manner of notification, corroborated by appropriate evidence. See, e.g., Alvarez-Espino v. Barr, 959 F.3d 813, 816-17 (7th Cir. 2020) (letter to lawyer alleging ineffective assistance and lawyer's response sufficient to meet notification requirement); Sembhi, 897 F.3d at 893 (affidavits that were silent as to notice were insufficient as to two attorneys, but attorney's response to ARDC charge was sufficient to demonstrate at least some notice for that attorney); Shehzad Patel, 496 F.3d at 831 (petitioner's affidavits insufficient because they did not state that petitioner expressed dissatisfaction with representation or informed attorneys of plan to file motion to reopen based on allegedly deficient performance).
Caballero failed to submit evidence-in the form of documentation from herself or Carney-to show that Godoy was apprised of her plans to seek reopening based on his ineffective assistance. Caballero relies on an unsworn typewritten note from Carney purporting to describe a call between Carney and Godoy. Cabellero's motion to reopen stated that the purpose of the call was to inform Godoy of her allegations, and although she expanded on the details of that call within her motion to reopen, representations in motions are insufficient as evidence. See Shehzad Patel, 496 F.3d at 832-33 (representations by counsel do not constitute evidence); Sembhi v. Sessions, 897 F.3d 886, 893 (2018) (representations in a brief do not constitute evidence of compliance with Lozada requirements). If the call did involve discussion of ineffective assistance or the impending motion to reopen, we cannot know because Carney's sparse unsworn note does not suggest that Carney informed Godoy of Caballero's dissatisfaction with his representation or her intent to file a motion to reopen based on ineffective assistance. That Godoy did not deny that he left Caballero without options does not indicate any awareness on his part that Caballero found his prior representation lacking.
Lastly, we note that the complaint Caballero filed with the ARDC is insufficient for notification purposes. Lozada requires that the former counsel be appropriately notified of the allegations and given an opportunity to respond. 19 I. &N. at 639. Even if filing a complaint with the relevant disciplinary authority could in some circumstances satisfy both the second and third Lozada requirements, it cannot do so here where Caballero's former counsel did not have an adequate opportunity to respond to the charge. See Marinov, 687 F.3d at 368-69 (rejecting argument that filing of ARDC complaint satisfied Lozada's notification requirement). But see Sembhi, 897 F.3d at 893 (where petitioner submitted proof that former counsel filed a response to the ARDC charge filed against her, counsel had at least some notice). Caballero allegedly filed her disciplinary complaint only three days before filing her motion to reopen; she did not offer evidence that she filed the complaint with the ARDC, and even if she did, three days would not be enough time for Godoy to have been notified of the complaint and give a response. The Board was correct to conclude that Godoy was not adequately notified or given an opportunity to respond.
III. Conclusion
Because the BIA did not abuse its discretion in concluding that Caballero failed to meet the notification requirement of Lozada, we deny the petition for review.