2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-15-2010

Rosa Anguisaca v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4725

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-4725

___________

ROSA PATRICIA ANGUISACA,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A079-701-589)

Immigration Judge: Honorable Henry S. Dogin

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 13, 2010

Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges

(Opinion filed: October 15, 2010)

___________

OPINION

___________

PER CURIAM

Rosa Patricia Anguisaca petitions for review of a decision of the Board of

Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.

Anguisaca, a native of Ecuador, entered the United States in 1992. In 2002, she
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was charged as removable as an alien who entered without a valid entry document. She

applied for cancellation of removal and voluntary departure. In a decision dated March

20, 2007, the IJ found Anguisaca removable and denied her applications for cancellation

of removal and voluntary departure. In a July 2008 decision, the BIA agreed with the IJ

that Anguisaca had not demonstrated that her removal would cause exceptional and

extremely unusual hardship to her United States citizen husband and children. Anguisaca

did not file a petition for review of the BIA’s decision.

On June 1, 2009, Anguisaca filed a motion to reopen with the BIA. She argued

that her prior counsel did not receive a briefing schedule or the BIA’s July 2008 decision. 

She requested that the BIA reissue its decision so that she could file a petition for review

or reopen its decision to address errors on the part of the IJ with respect to her application

for cancellation of removal. The BIA determined that the motion to reopen was untimely

and that Anguisaca was not entitled to equitable tolling. Anguisaca filed a timely petition

for review.

We have jurisdiction under 8 U.S.C. § 1252. We review the denial of a motion to

reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). 

Under this standard, we will reverse the BIA’s decision only if it is “arbitrary, irrational,

or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). The BIA’s

factual determinations must be upheld if they are supported by substantial evidence. Liu

v. Attorney General, 555 F.3d 145, 148 (3d Cir. 2009). Under the substantial evidence
3

standard, the BIA’s findings can be rejected only if “any reasonable adjudicator would be

compelled to conclude to the contrary.” Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478,

481 (1992)). 

An alien may file a motion to reopen with the BIA “within 90 days of the date of

entry of a final administrative order of removal.” 8 U. S. C. § 1229a(c)(7)(C)(i). We

have held that the deadline for motions to reopen may be equitably tolled on the basis of

ineffective assistance of counsel. See Mahmood v. Gonzales, 427 F. 3d 248, 251 (3d Cir.

2005). In Mahmood, we concluded that the alien’s claims of ineffective assistance of

counsel were sufficient to provide a basis for equitable tolling but that the alien had not

acted with diligence. We noted that equitable tolling is an extraordinary remedy. Id. at

253.

Citing Mahmood, the BIA addressed whether Anguisaca was entitled to equitable

tolling even though she had not alleged ineffective assistance of counsel. The BIA

determined that Anguisaca was not entitled to equitable tolling because she had not acted

with reasonable diligence upon learning of the BIA’s decision. It noted that Anguisaca

learned of the BIA’s decision in January 2009 but did not file her motion to reopen until

June 2009. 

In her brief, Anguisaca states that she consulted with her current counsel at the end

of January 2009. She contends that her counsel needed to receive and review the file

before he could determine that neither Anguisaca nor her counsel received the briefing
 In her petition for review, Anguisaca stated that she learned of the BIA’s decision in 1

late January 2009 but that it took two months to receive the record and until April 2nd to

obtain an affidavit from prior counsel. The affidavit by counsel is dated April 2, 2009. 

A.R. at 48. She asserted that it took until May 2009 to get an affidavit from an expert

witness regarding the conditions in Ecuador.

 We note that in her notice of appeal to the BIA from the IJ’s decision, Anguisaca 2

argued that the IJ’s decision was legally and factually flawed but did not assert any

allegations of bias or transcription errors. A.R. at 148.

4

schedule or the BIA’s decision. She asserts that it was not until May 2009 that she was

able to contact prior counsel to sign an affidavit stating that he had not received the

briefing schedule or BIA’s decision. However, these facts were not presented to the BIA 1

in the motion to reopen. Anguisaca did not argue for equitable tolling or discuss the

timeliness of the motion at all. Because the facts Anguisaca argues to support her

argument for equitable tolling were not presented to the BIA in the motion to reopen, we

cannot conclude that the BIA abused its discretion in denying her motion to reopen on the

ground that she had not acted with reasonable diligence.

Anguisaca also argues that her rights to due process were violated by the BIA’s

failure to serve her with a briefing schedule or its July 2009 decision. However,

Anguisaca has not shown that she was denied due process by the BIA with respect to her

motion to reopen. She had the opportunity to present her arguments and evidence in

support of her motion and the BIA considered and rejected them. We need not address

her arguments alleging bias by the IJ and mistakes in the transcription of the hearing as

the IJ’s decision is not before us. Stone v. INS, 514 U.S. 386, 405 (1995); Nocon v. INS, 2
5

789 F.2d 1028, 1033-34 (3d Cir. 1986).

For the above reasons, we will deny the petition for review.