UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MARIO SALVADOR SORIANOMENDOSA, 

 Petitioner, 

v. 

WILLIAM P. BARR, United States 

Attorney General,

 

 Respondent. 

No. 18-9535 

(Petition for Review) 

_________________________________ 

ORDER AND JUDGMENT**

_________________________________ 

Before HOLMES, PHILLIPS, and EID, Circuit Judges. 

_________________________________ 

 Mario Salvador Soriano-Mendosa, a native and citizen of El Salvador, seeks 

review of a Board of Immigration Appeals’ (BIA’s) decision that upheld the denial of his 

  In accordance with Rule 43(c)(2) of the Federal Rules of Appellate 

Procedure, William P. Barr is substituted for Jefferson B. Sessions, III, as the 

respondent in this action. 

** After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 9, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

motion to reopen immigration proceedings and rescind his removal order. Exercising 

jurisdiction under 8 U.S.C. § 1252(a), we deny Soriano’s petition. 

BACKGROUND

 Soriano entered the United States illegally on April 7, 2009, when he was 

seventeen years old. The Department of Homeland Security quickly apprehended him 

and began removal proceedings by filing a notice to appear and a notice of hearing. 

Because he was an unaccompanied minor, he was released to his uncle, who lived in 

Utah. 

 On May 26, 2011, Soriano appeared with attorney Scott T. Poston before an 

Immigration Judge (IJ) and was notified that his case was set for a removal hearing to be 

conducted at 1 p.m. on September 29, 2011, in Salt Lake City, Utah.1

 When Soriano 

failed to appear, the IJ conducted the hearing in absentia, found him removable as 

charged, and ordered him removed to El Salvador. 

 Over five-and-a-half years later, on May 24, 2017, Soriano filed a motion through 

new counsel to reopen the immigration proceedings and rescind the removal order. 

Soriano argued that Poston had provided ineffective assistance by “not inform[ing] [him] 

of [the] September 29, 2011[,] calendar hearing until the morning of the scheduled 

hearing,” when he was in California. R. at 713. According to Soriano, he could not 

travel to Utah on such short notice. Soriano indicated he learned of the removal order’s 

 1

 At the May 26 hearing, Soriano “received oral notice of” the September 29 

hearing, R. at 605, and Poston received written notice, id. at 862-63. 
3 

entry sometime “[a]fter the hearing in September of 2011,” but no later than “July of 

2012,” when he was told by another attorney that “it would be very difficult to fight [the] 

removal order.” Id. at 745. In addition to complaining of Poston’s failure to secure his 

attendance at the hearing, Soriano complained of Poston’s filing of an application for 

special immigrant juvenile status, rather than an asylum application, and Poston’s failure 

to respond to a request from the Citizenship and Immigration Services for evidence in 

support of special immigrant juvenile status. Soriano claimed in the motion to reopen 

that despite meeting with current counsel in 2014, he did not discover Poston’s 

ineffective assistance until March 2017, when current counsel obtained and reviewed his 

immigration record. 

 An IJ construed Soriano’s motion as seeking reopening to rescind under 8 U.S.C. 

§ 1229a(b)(5)(C)(i), and reopening without rescission under 8 U.S.C. § 1229a(c)(7). The 

IJ denied both aspects of Soriano’s motion. 

 Specifically, in regard to a § 1229a(b)(5)(C)(i) reopening, the IJ determined that 

Soriano could not equitably toll the 180-day time limit for seeking rescission because he 

did not exercise due diligence in raising Poston’s alleged ineffective assistance. The IJ 

stressed that Soriano began meeting with different attorneys as early as 2012 to avoid 

removal, and even his current attorney took nearly three years to move for reopening. 

The IJ further concluded that even if Soriano had demonstrated due diligence, he was not 
4 

prejudiced by any ineffective assistance because he had been personally notified of the 

September 2011 hearing four months earlier.2

 As for a subsection (c)(7) general reopening, the IJ again noted Soriano’s lack of 

due diligence as a barrier to equitably tolling the limitations period. And even if Soriano 

had diligently pursued his rights, the IJ said, he failed to show that Poston’s 

representation was prejudicial with respect to either (1) the filing of a special-immigrantjuvenile-status application, rather than an asylum application, given Soriano’s failure to 

show he was eligible for asylum; or (2) Poston’s failure to respond to Citizenship and 

Immigration Services’ request for evidence in support of special immigrant juvenile 

status, given that the agency later sua sponte reopened his application. 

 The BIA adopted and affirmed the IJ’s decision “for the reasons stated therein.” 

R. at 4. 

DISCUSSION

I. Standards of Review 

 “We review the BIA’s decision on a motion to reopen only for an abuse of 

discretion.” Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013) (brackets and 

internal quotation marks omitted). “[M]otions to reopen immigration cases are plainly 

disfavored, and [the alien] bears a heavy burden to show the BIA abused its discretion.” 

 2

 The IJ found that Soriano had met the preliminary requirements of In re 

Lozada, 19 I. & N. Dec. 637, 638-39 (BIA), aff’d, 857 F.2d 10, 14 (1st Cir. 1988), for 

bringing an ineffective-assistance claim. See Osei v. INS, 305 F.3d 1205, 1209 n.2 

(10th Cir. 2002) (discussing the Lozada requirements: providing a supporting 

affidavit, allowing former counsel the opportunity to respond, and indicating whether 

a disciplinary complaint has been filed). 
5 

Id. (brackets and internal quotation marks omitted). “The BIA abuses its discretion when 

its decision provides no rational explanation, inexplicably departs from established 

policies, is devoid of any reasoning, or contains only summary or conclusory statements.” 

Id. (internal quotation marks omitted). Where, as here, the BIA adopted and affirmed the 

IJ’s decision in a brief opinion, we review the BIA’s opinion by “consulting the IJ’s more 

complete explanation of those same grounds.” Uanreroro v. Gonzales, 443 F.3d 1197, 

1204 (10th Cir. 2006). 

II. Motion to Reopen & Rescind (§ 1229a(b)(5)(C)(i)) 

 An in absentia removal order may be rescinded upon a motion to reopen filed 

within 180 days of the order’s date if the alien shows that his failure to appear was due to 

exceptional circumstances. 8 U.S.C. § 1229a(b)(5)(C)(i).3

 Because Soriano moved to 

reopen long after the 180-day period had expired, he sought to equitably toll that period 

by claiming Poston provided ineffective assistance. While ineffective assistance of 

counsel may toll the filing period for a motion to reopen, Riley v. INS, 310 F.3d 1253, 

1258 (10th Cir. 2002), Soriano must show that he exercised due diligence in pursuing his 

case during the period he seeks to toll, Mahamat v. Gonzales, 430 F.3d 1281, 1283 

(10th Cir. 2005). 

 3

 A motion to reopen for rescission of an in abstentia removal order may be 

filed at any time if the alien shows either that (1) he “did not receive notice in 

accordance with [8 U.S.C. § 1229(a)(1) or (2)]”; or (2) he “was in Federal or State 

custody and the failure to appear was through no fault of [his own].” 8 U.S.C. 

§ 1229a(b)(5)(C)(ii). Soriano does not invoke either of these situations. 
6 

A. Due Diligence 

 Soriano argues that he diligently moved to reopen as soon as he learned of 

Poston’s ineffective assistance from his current attorney in March 2017. With the 

180-day period running from that date, Soriano asserts that his May 2017 motion to 

reopen was timely. He claims that he could not have acted before March 2017 because 

(1) he did not know of Poston’s ineffective assistance; and (2) Poston and other attorneys 

“informed [him] that it would be too late to take any action” to reopen his case. Pet’r 

Opening Br. at 6. These claims do not show an abuse of agency discretion. 

 First, Soriano initially consulted with his current attorney in 2014. He does not 

explain why it took roughly three years to obtain and review the immigration records and 

to uncover Poston’s ineffectiveness. Moreover, long before 2014, Soriano suspected that 

Poston had been ineffective. Indeed, in a declaration attached to the motion to reopen, 

Soriano said he recognized as early as May 2011 that Poston’s “lack of competence was 

becoming a problem.” R. at 744. And throughout the declaration, Soriano faulted Poston 

for allowing him to miss the September 2011 hearing and for not “reopen[ing] the case,” 

id. at 745. Thus, it was not unreasonable for the BIA or IJ to doubt Soriano’s claim that 

the time from 2014 to May 2017 was diligently spent uncovering Poston’s 

ineffectiveness. 

 Second, Soriano’s declaration casts doubt on his assertion that he delayed acting 

because other attorneys had told him it was too late. Indeed, Soriano declared that in 

2012 he visited two law firms and was told that reopening his case would be “difficult” or 

“very difficult.” Id. at 745. One of the firms wanted to see his immigration file, 
7 

however, and the other suggested he would have to “go to court.” Id. Soriano claimed he 

felt scared and hopeless, so instead of pursuing relief, he “focused on [his] wedding” to a 

woman he had met in September 2011. Id. These circumstances belie diligence in 

seeking to reopen the immigration proceedings. 

B. Exceptional Circumstances 

 Because Soriano has not shown he acted with due diligence, the agency was 

within its discretion to simply deny the motion to reopen as untimely. But it went further, 

examining whether Poston’s performance had constituted exceptional circumstances that 

caused Soriano to miss the September 2011 removal hearing. Because Soriano was 

present at the May 2011 hearing when notice of the September hearing was provided, the 

BIA and IJ concluded that Poston’s failure to remind Soriano of the removal hearing was 

not prejudicial. See Tang v. Ashcroft, 354 F.3d 1192, 1196 (10th Cir. 2003) (observing 

that an ineffective-assistance claim in the immigration context requires deficient 

performance that denies the alien a fundamentally fair proceeding); United States v. 

Aguirre-Tello, 353 F.3d 1199, 1207-08 (10th Cir. 2004) (equating prejudice with a 

fundamentally unfair immigration proceeding). 

 Soriano argues that he established exceptional circumstances because he spoke by 

phone with Poston several weeks before the September 29, 2011 hearing, and he asked 

Poston to “let [him] know when the next hearing was going to take place,” but Poston did 

not notify him until the day of the hearing. R. at 745. Thus, Soriano suggests, Poston 

performed deficiently and made him miss the hearing. For support, he cites Aris v. 

Mukasey, where the Second Circuit held that “a lawyer’s inaccurate advice to his client 
8 

concerning an immigration hearing date can constitute ‘exceptional circumstances’ 

excusing the alien’s failure to appear at a deportation hearing and meriting the reopening 

of an in absentia deportation order.” 517 F.3d 595, 599 (2d Cir. 2008) (citations 

omitted). But Aris involved an alien who had been “wrongly informed . . . that there was 

no hearing scheduled.” Id. Here, by contrast, although Poston failed to remind Soriano 

of the hearing, he did not give Soriano erroneous information. Further, Soriano was 

present at the May 26, 2011 hearing when the IJ provided notice of the September 29 

removal hearing. Soriano acknowledged in his brief to the BIA that he “was aware of his 

hearing date and attended all other previous hearing dates prior to September 29, 2011.” 

R. at 135. We therefore conclude that the agency acted within its discretion in finding 

that exceptional circumstances did not excuse Soriano’s failure to appear at the 

September 29, 2011 hearing. 

III. Motion to Reopen Generally (§ 1229a(c)(7)) 

 The same timing and tolling principles discussed above govern Soriano’s motion 

to reopen under § 1229a(c)(7). See 8 U.S.C. § 1229a(c)(7)(C)(iii) (specifying that 

motions to reopen a removal order entered in abstentia are governed by the 

§ 1229a(b)(5)(C) limitations period); Gonzalez-Alarcon v. Macias, 884 F.3d 1266, 1270 

(10th Cir. 2018) (stating that § 1229a motions to reopen in general are subject to 

equitable tolling). For the reasons already set forth, Soriano has not shown due diligence 

in pursuing his case. Thus, the agency did not abuse its discretion in denying 

§ 1229a(c)(7) relief. 
9 

 Even if we joined the agency in assuming that Soriano had demonstrated due 

diligence, we would still conclude that he failed to show that he was prejudiced by 

Poston’s failure to file an asylum application or respond to Citizenship and Immigration 

Services’ request for evidence in support of special immigrant juvenile status. See 

Mahamat, 430 F.3d at 1283 (stating that equitable tolling requires both due diligence and 

a violation of “due process . . . by the conduct of counsel”); Akinwunmi v. INS, 194 F.3d 

1340, 1341 n.2 (10th Cir. 1999) (per curiam) (stating that a due-process violation occurs 

when “counsel’s ineffective assistance so prejudiced [the alien] that the proceeding was 

fundamentally unfair”). 

 Indeed, as the agency explained, Soriano offered no evidence he was even eligible 

for asylum. Soriano does not argue otherwise. Instead, he claims he would have 

obtained special immigrant juvenile status had Poston responded to the evidentiary 

request. This too is speculative. In any event, while Citizenship and Immigration 

Services initially denied Soriano’s special-immigrant-juvenile-status application because 

Poston failed to respond, Citizenship and Immigration Services sua sponte reopened the 

matter in April 2011, and Soriano’s application remained pending until August 2017—

long after Poston’s representation had ended. Moreover, Citizenship and Immigration 

Services denied the application by noting that Soriano had disqualified himself by 

marriage in October 2012. See 8 C.F.R. § 204.11(c) (stating that “[a]n alien is eligible 

for classification as a special immigrant” juvenile if, among other things, he or she “[i]s 

unmarried”). Thus, because nothing shows that Poston’s handling of the special-
10 

immigrant-juvenile-status application prejudiced Soriano, the agency did not abuse its 

discretion in declining to reopen the proceedings under 8 U.S.C. § 1229a(c)(7). 

IV. Pereira v. Sessions

 In Pereira v. Sessions, 138 S. Ct. 2105 (2018), the Supreme Court addressed the 

effect of a notice to appear on an alien’s eligibility for cancellation of removal. 

Specifically, the Court held that a notice to appear that omits the removal proceeding’s 

time or place does not stop the alien’s accrual of continuous presence in the United States 

for purposes of cancellation of removal. Id. at 2113-14. Soriano attempts to expand 

Pereira’s holding into a jurisdictional invalidation of any removal proceeding initiated by 

a notice to appear that lacks a time or place designation. He notes that the notice to 

appear issued to him after he was apprehended in 2009 provided only that he was to 

appear for removal proceedings at a date and time “to be set.” R. at 901. 

 But “Pereira was not in any way concerned with the Immigration Court’s 

jurisdiction.” Karingithi v. Whitaker, 913 F.3d 1158, 1159 (9th Cir. 2019). And after the 

Supreme Court decided Pereira, the BIA issued a precedential opinion rejecting the same 

jurisdictional argument that Soriano raises here. In In re Bermudez-Cota, 27 I. & N. Dec. 

441, 447 (BIA 2018), the BIA explained that “a notice to appear that does not specify the 

time and place of an alien’s initial removal hearing vests an Immigration Judge with 

jurisdiction over the removal proceedings . . . so long as a notice of hearing specifying 

this information is later sent to the alien.” Soriano does not dispute that he received 

notices of hearing that designated the dates and times of his removal proceedings. So we 

see no jurisdictional significance in the failure to include a date and time in the notice to 
11 

appear. See Karingithi, 913 F.3d at 1161-62; Hernandez-Perez v. Whitaker, 911 F.3d 

305, 314-15 (6th Cir. 2018). 

CONCLUSION4

 We deny Soriano’s petition for review. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge 

 4

 Soriano complains that the BIA “erred in concluding that [he] does not 

require his removal proceedings to be reopened to be able to immigrate to the United 

States through marriage to his U.S. citizen spouse.” Pet’r Opening Br. at 8-9. He 

provides few clarifying details, however, and we do “not consider issues adverted to 

in a perfunctory manner, unaccompanied by some effort at developed 

argumentation.” Armstrong v. Arcanum Grp., Inc., 897 F.3d 1283, 1291 (10th Cir. 

2018) (ellipsis and internal quotation marks omitted).