PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
Stanley H. Cooper on brief for petitioner.
H. Hunt, Assistant Attorney General, Civil Division, John S.
Hogan, Assistant Director, Office of Immigration Litigation,
and Andrea N. Gevas, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, on brief for
Lynch, Thompson, and Barron, Circuit Judges.
THOMPSON, CIRCUIT JUDGE.
ourselves explaining once again that "[m]otions to
reopen -- especially untimely motions to reopen -- are
disfavored in immigration cases. Consequently, an alien who
seeks to reopen removal proceedings out of time ordinarily
faces a steep uphill climb." Pineda v.
Whitaker, 908 F.3d 836, 838 (1st Cir. 2018) (quoting
Sihotang v. Sessions, 900 F.3d 46, 48 (1st Cir.
2018)). In today's case, that demanding hike is attempted
by petitioner Edgar Rolando Tay-Chan ("Tay-Chan"),
a Guatemalan native and citizen who first came to the U.S. in
2003. He was later charged with removability,
and now, with his immigration proceedings not going the way
he had hoped, Tay-Chan challenges the Board of Immigration
Appeals's ("BIA") denial of the motion to
reopen that he filed nearly seven years late. Because the BIA
did not abuse its discretion in so doing, we uphold the
BIA's rejection of the motion to reopen and deny
Tay-Chan's petition for judicial review.
was born in Guatemala City, Guatemala in 1978, where he
received a fourth-grade education while living in a violent
neighborhood overrun by gangs. In need of a job to help
support his impoverished family, an eleven-year-old Tay-Chan
left school and began working at a local autobody shop,
which, as it turns out, was heavily involved in the
neighborhood's criminal activity. When Tay-Chan was
fifteen, a member of MS-18 sought to recruit Tay-Chan; in
response, Tay-Chan tried to avoid any interactions with
members of MS-18. Unfortunately, this approach didn't pan
out long-term: Tay-Chan was later shot five times by an MS-18
member. All told, over the years, Tay-Chan and his family had
quite a few violent encounters with MS-18, several of which
resulted in the deaths of Tay-Chan's family
escape all this violence, Tay-Chan entered the U.S., without
inspection or detention, through the Mexico-Arizona border. A
few years later, the Immigration Service of the Department of
Homeland Security initiated removal proceedings against
Tay-Chan by issuing a notice to appear on April 25, 2006,
alleging he was removable pursuant to 8 U.S.C. §
1182(a)(6)(A)(i) and (7)(A)(i)(I) (establishing removability
for entrance into the U.S. without inspection or parole and
for the absence of a valid immigrant visa, respectively).
Tay-Chan hired an attorney, and thereafter admitted the truth
of the factual allegations and conceded removability, but
applied for withholding of removal. In the alternative,
Tay-Chan requested voluntary departure.
2009 withholding of removal hearing before the Immigration
Judge ("IJ"), he was represented by a colleague of
the attorney he'd hired. Tay-Chan, who does not speak
English, had never met this colleague -- he says he was
unable to communicate with her due to the language barrier
(he did have an interpreter present, we note), and he asserts
that he was not informed beforehand that his hearing
testimony would be confidential. Before the IJ, Tay-Chan
testified as to the crimes committed against him and his
family in Guatemala and his fears about returning. Although
the IJ found Tay-Chan's testimony credible, he did not
find that Tay-Chan had been a victim of past persecution on
account of a statutorily protected ground because Tay-Chan
was unable to identify why he was a target of the crimes
committed. Accordingly, the IJ denied Tay-Chan's
application for withholding of removal, but granted his
request for voluntary departure.
appealed, but the BIA agreed with the IJ: although his
testimony was credible, Tay-Chan failed to meet his burden of
proof for withholding of removal. The BIA acknowledged that
Tay-Chan and his family were victims of gang violence, but
even so, Tay-Chan had failed to establish that he was
persecuted based on a statutorily enumerated ground (such as
membership in a particular social or political group).
See 8 U.S.C. § 1231(b)(3)(A). The BIA's
final order entered on April 14, 2011.
April 3, 2018, nearly seven years after the BIA denied his
appeal, Tay-Chan filed a motion to reopen. In support of his
motion, Tay-Chan argued that he had received ineffective
assistance of counsel: the language barrier between him and
his attorney rendered him ill-equipped for the hearing, and,
had he understood his testimony would be confidential, he
would have testified more specifically as to his past
persecution, which in turn would have led the IJ to a
different conclusion about Tay-Chan's case. The BIA
denied the motion as time-barred (the motion was filed long
after the expiration of the ninety-day deadline, 8 U.S.C.
§ 1229a(c)(7)(C)(i)), and declined Tay-Chan's
invitation to equitably toll the deadline based on the
ineffective assistance of counsel claim, finding no showing
of due diligence and no resulting prejudice. Tay-Chan seeks
review of that denial.
review the BIA's denial of Tay-Chan's motion to
reopen under the "highly deferential abuse-of-discretion
standard." Pineda, 908 F.3d at 840 (citing
Bbale v. Lynch, 840 F.3d 63, 66 (1st Cir. 2016)). In
doing so, we bear in mind what we mentioned at the outset:
"a motion to reopen removal proceedings is a disfavored
tool, given the threat it poses to finality[.]"
Mazariegos v. Lynch, 790 F.3d 280, 285 (1st Cir.
2015) (citing Perez v. Holder, 740 F.3d 57, 61 (1st
Cir. 2014)). We will uphold the BIA's decision unless
Tay-Chan can show that the BIA "committed a material
error of law or exercised ...