United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-3140

___________

Estrella Valencia, also known as *

Daniela Arevalo, *

*

Petitioner, *

* Petition for Review of

v. * an Order of the Board

* of Immigration Appeals. 

Eric H. Holder, Jr., Attorney General *

of the United States, *

*

Respondent. *

___________

Submitted: September 22, 2011

Filed: October 7, 2011

___________

Before LOKEN, BEAM, and MURPHY, Circuit Judges.

___________

MURPHY, Circuit Judge.

In December 2002, an immigration judge (IJ) found Estrella Valencia

removable and granted her voluntary departure. Valencia failed to depart during the

prescribed period and her removal order became final in April 2003. Six years later,

Valencia moved to reopen her proceedings, arguing that her attorney had been

ineffective in representing her. The IJ denied the motion and the Board of

Immigration Appeals (BIA) dismissed Valencia's subsequent appeal, concluding that

the motion to reopen had not been timely filed and no exceptional circumstances
warranted exercise of its discretionary authority to reopen proceedings sua sponte. 

Valencia petitions for review, and we deny the petition.

I.

Valencia, a citizen of the Philippines, entered the United States on a

nonimmigrant visitor visa in March 1999. The record showsthat Valencia statesthat

she was brought to the United States as a domestic servant by an abusive Kuwaiti

employer. She escaped the employer after arriving in the United States but continued

living and working in this country.

In August 2002, removal proceedings were initiated against her because she

had overstayed the authorized period of admission and had been employed without

work authorization. Valencia retained attorney Robert Cox to represent her, and he

requested voluntary departure. Valencia states that Cox told her she was eligible for

a T visa for trafficking victims under 8 U.S.C. § 1101(a)(15)(T), but Cox never

informed the IJ that Valencia would seek such a visa or requested additional time to

apply for it. In December 2002, the IJ found Valencia removable and granted her

voluntary departure. Valencia states that Cox repeatedly told her not to depart and

that he had filed a "waiver." She did not leave the country and her voluntary

departure period expired in April 2003, at which point her removal order became

administratively final. 

After the removal proceedings had concluded, Cox prepared a T visa

application on Valencia's behalf. Although Valencia signed the application in

February 2003, Cox did not file it until July 2003. The T visa application was

missing crucial documentation. It was denied in April 2004 because Valencia had

failed to establish that her presence in the United States was on account of trafficking

asrequired by 8 U.S.C. § 1101(a)(15)(T)(i)(II). The denial letter stated that Valencia

was ineligible because she could have departed the United States after escaping the

-2-
traffickers but had failed to do so without providing an explanation. Valencia

eventually fired Cox, who was suspended from the practice of law in 2006. Valencia

hired new counsel in January 2006. 

At some point after her removal order had become final, Valencia married

Edwin Saso, a lawful permanent resident who later became a United States citizen. 

Valencia and Saso filed an I-130 "Petition for Alien Relative," which was approved

in December 2007.

1

In March 2009 Valencia filed a motion to reopen her removal proceedings in

immigration court based on a claim of ineffective assistance of counsel. Her motion

focused on Cox's ineffectiveness in not raising the T visa claim during her removal

proceedings but also requested that the IJ "grant her permanent residency based on

her approved I-130 and her marriage to a United States Citizen." The IJ denied the

motion in May 2009, stating that Valencia had failed to meet the requirements

outlined in Matter of Compean, 24 I. & N. Dec. 710 (A.G. 2009), for reopening

proceedings based on ineffective assistance of counsel. Compeanwas vacated a week

later, and Valencia filed a motion to reconsider. The IJ denied the motion,

acknowledging that Compean no longer controlled but concluding that Valencia's

motion to reopen was untimely. It had been filed almost six years after the ninety day

deadline.

Valencia appealed to the BIA. She characterized her motion to reopen as being

based on the approval of the I-130, not the merits of the trafficking claim. She

appeared to argue that she had been prejudiced by Cox's performance, not because of

The approval of the I-130 is one step toward acquiring permanent resident

1

status based on marriage to a United States citizen. The noncitizen must also apply

to register for permanent residence or adjust status. Noncitizens who fail to depart

voluntarily after receiving voluntary departure are ineligible to adjust status for a ten

year period under 8 U.S.C. § 1229c(d)(1)(B).

-3-
his conduct in applying for the T visa, but because he caused her to "fail[] to depart

the country as ordered." Valencia sought reopening to "set aside the removal order"

so that she would be eligible for adjustment of status based on her approved I-130

petition. 

The BIA dismissed Valencia's appeal after concluding that the motion was

untimely and that Valencia had not presented "any exceptional situation that would

have justified sua sponte reopening." Specifically, the BIA stated that Valencia's

alleged eligibility for adjustment of status based on her approved I-130 petition,

"obtained long after her removal order became final," was not an exceptionalsituation

justifying disregard for the statutory deadline. The BIA also found that Valencia's

ineffective assistance claim did not warrant sua sponte reopening because Valencia

could not meet the requirements for immigration relief as a trafficking victim and

because Valencia had failed to show that "ineffective assistance of counsel was the

reason why she failed to file her motion to reopen in a timely manner." The BIA

concluded that Valencia "filed her motion in 2009 simply because it took her that

long to become eligible for adjustment of status." 

Valencia now petitions for review of the BIA's denial of her motion to reopen,

arguing that Cox's ineffectiveness amounted to exceptional circumstances which

merit reopening.

II.

We review the BIA's denial of a motion to reopen for abuse of discretion,

which occurs when the BIA "gives no rational explanation for its decision, departs

from its established policies without explanation, relies on impermissible factors or

legal error, or ignores or distorts the record evidence." Guled v. Mukasey, 515 F.3d

872, 882 (8th Cir. 2008). A motion to reopen must be filed within ninety days of the

date the order of removal becomes administratively final. 8 U.S.C. § 1229a(7)(C)(i);

-4-
8 C.F.R. § 1003.2(c)(2). When ineffective assistance of counsel is the basis for the

motion to reopen, Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) sets forth the

standard. See Ochoa v. Holder, 604 F.3d 546, 548 n.1 (8th Cir. 2010). Lozada

requires that the motion include an affidavit detailing the agreement entered with

former counsel, state that former counsel was informed of the allegations and given

an opportunity to respond, indicate whether a complaint was filed with disciplinary

authorities and give reasons if no complaint wasfiled, and demonstrate that counsel's

performance prejudiced the outcome. See Lozada, 19 I. & N. Dec. at 639–40.

If a motion to reopen is filed after the ninety day deadline, equitable tolling

may be invoked to excuse lateness. See Ortega-Marroquin v. Holder, 640 F.3d 814,

819 (8th Cir. 2011). When the motion to reopen is based on ineffective assistance of

counsel, however, "equitable tolling is sparingly invoked." Pafe v. Holder, 615 F.3d

967, 969 (8th Cir. 2010) (quotation omitted). It "is not available to those who sleep

on their rights." Habchy v. Gonzales, 471 F.3d 858, 866 (8th Cir. 2006). The movant

must not only show that she meets the Lozada requirements, but must also establish

that she exercised due diligence. See Pafe, 615 F.3d at 969 (discussing tolling in

context of statutory deadline for motions to reopen based on in absentia removal

orders). We have found tolling inappropriate where the movant did not file the

motion to reopen promptly after discovering former counsel's ineffectiveness. See

id. at 969–70.

The BIA did not abuse its discretion in denying the motion to reopen. Its

decision was based on Valencia's failure to file the motion within the statutorily

prescribed time limits. Valencia did not argue before the BIA that equitable tolling

should apply, does not make that argument here, and conceded at oral argument that

she cannot make the required showing. While Valencia fired Cox after she realized

that he was ineffective and retained her current counsel in 2006, she did not file her

motion to reopen until 2009. Valencia does not argue that she exercised due

-5-
diligence during the six year period between the filing deadline and the date she

eventually filed her motion to reopen.

Even if Valencia had shown due diligence to excuse her lateness, she has not

demonstrated prejudice, one of the requirementsfor reopening proceedings based on

ineffective assistance of counsel. See Lozada, 19 I. & N. Dec. at 638. Valencia does

not argue that but for Cox's failings, she likely would have succeeded on the merits

of her trafficking claim. In fact, Valencia's argument before the BIA was not based

on the trafficking claim, but instead sought to set aside the removal order so that she

might be eligible to adjust her status based on her husband's United States citizenship. 

Her alleged eligibility for acquiring lawful status through her husband did not exist

when Cox represented her during removal proceedings because she did not marry her

husband until after the statutory deadline to reopen had passed. Cox's performance

could not have prejudiced her from receiving a benefit that was not available to her

at the time.

III.

TheBIA acknowledged its discretionary authority to reopen proceedings on its

own motion under 8 C.F.R. § 1003.2(a) in "exceptional situations," citing In re J-J-,

21 I. & N. Dec. 976, 984 (BIA 1997). It found no such circumstances present here. 

This court lacks jurisdiction to review the BIA's decision on its own motion whether

or not to reopen proceedings, since that decision is "committed to agency discretion

by law." Tamenut v. Mukasey, 521 F.3d 1000, 1005 (8th Cir. 2008). Valencia argues

that the regulation allowing the BIA to reopen cases on its own motion is

unconstitutionally vague. Valencia did not raise this claim in her opening brief and

indicated at argument that she was not pursuing it, and we decline to address it here.

While Valencia's allegations of her original attorney's deficient performance

are troubling, the BIA did not abuse its discretion in denying Valencia's untimely

-6-
motion, and this court lacks jurisdiction to review the BIA's refusal to exercise its

authority to reopen proceedings on its own motion.

IV.

Accordingly, we deny Valencia's petition for review.

______________________________

-7-