          United States Court of Appeals
                      For the First Circuit

No. 18-1162

                         GEOVANNY PINEDA,

                           Petitioner,

                                v.

                      MATTHEW G. WHITAKER,
                    ACTING ATTORNEY GENERAL,

                           Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE
                   BOARD OF IMMIGRATION APPEALS


                              Before

                       Howard, Chief Judge,
               Selya and Thompson, Circuit Judges.


     Kevin MacMurray, Daniel W. Chin, and MacMurray & Associates
on brief for petitioner.
     Chad A. Readler, Acting Assistant Attorney General, Linda S.
Wernery, Assistant Director, and Lindsay B. Glauner, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.


                        November 19, 2018




     
      Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney General
Matthew G. Whitaker has been substituted for former Attorney
General Jefferson B. Sessions, III as the respondent.
          SELYA, Circuit Judge.   We recently wrote 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."   Sihotang v. Sessions, 900 F.3d 46, 48 (1st Cir. 2018).

This case, in which the petitioner waited roughly four and one-

half years before moving to reopen his removal proceedings, bears

witness to the difficulty of the ascent.     Concluding, as we do,

that the petitioner has not shown a sufficient reason to excuse

his delay, we uphold the rejection of his motion to reopen by the

Board of Immigration Appeals (BIA) and deny his petition for

judicial review.

          The petitioner, Geovanny Pineda, is a native and citizen

of El Salvador.    He entered the United States illegally in 1999.

In 2001, he applied for temporary protected status (TPS) and

employment authorization.1   His TPS application was received (but

not acted upon immediately) and his application for employment

authorization was granted.    On April 10, 2003, the petitioner's




     1
       TPS affords aliens protection from removal from the United
States upon a determination by the Attorney General that the
conditions in the alien's homeland prevent his or her safe return.
See 8 U.S.C. § 1254a. The Attorney General designated El Salvador
(the petitioner's homeland) for the TPS program in 2001 after a
series of earthquakes struck the country that year. See Villanueva
v. Holder, 784 F.3d 51, 53 (1st Cir. 2015) (citing Designation of
El Salvador Under Temporary Protected Status Program, 66 Fed. Reg.
14,214 (Mar. 9, 2001)).


                               - 2 -
TPS    application    was     denied.        He     unsuccessfully     moved   for

reconsideration, but nonetheless remained in the United States.

             We fast-forward to May of 2010, at which time the

Department     of     Homeland      Security        (DHS)   initiated       removal

proceedings against the petitioner.                  The DHS charged that the

petitioner was removable as "[a]n alien present in the United

States    without     being      admitted      or     paroled."         8    U.S.C.

§     1182(a)(6)(A)(i).        Approximately         four   months    later,   the

petitioner appeared before an immigration judge (IJ) and, through

counsel, conceded removability.              At the same time, he indicated

that he wanted to apply for withholding of removal and protection

under the United Nations Convention Against Torture (CAT).                   The IJ

ordered a ten-month continuance until June 29, 2011, so that the

petitioner could prepare his applications for these forms of relief

from removal.        A warning accompanied the continuance:                 the IJ

admonished the petitioner that if he failed to file full-blown

applications    for     relief      within     the     specified     period,    his

preliminary requests would be considered "abandon[ed]."

             On June 29, 2011, the petitioner failed to make the

anticipated filings.        His attorney sought a further continuance,

telling the IJ that he had not been able to assemble the completed

applications within the prescribed interval.                  The IJ denied a

further   continuance,      found    the     petitioner's     applications     for

withholding of removal and CAT protection to be abandoned, and


                                      - 3 -
ordered the petitioner removed to El Salvador.           In his bench

decision, the IJ observed that the ten-month continuance he had

given the petitioner was "quite sufficient" and that the petitioner

had   been   explicitly   warned   about   the   consequences   of   non-

compliance with that deadline.

             The petitioner, acting pro se, filed a notice of appeal

on July 28, 2011.    He asserted that he did "not speak English" and

insisted that he had not been made aware of the filing deadline.

Rather, he had "relied on [his] lawyer to tell [him] what [he]

needed to do to apply for asylum."         Thereafter, the petitioner

secured the services of a second attorney, who filed a brief in

support of his appeal.    In that brief, the petitioner argued that

the IJ had abused his discretion in deeming the petitioner's

requests for withholding of removal and CAT protection abandoned.

His argument posited that applications for withholding of removal

and CAT protection were requests for "mandatory" protection and,

thus, a single procedural misstep was not enough to justify their

summary denial.

             On December 28, 2012, the BIA affirmed the order of

removal.     In so doing, it upheld the IJ's determination that the

petitioner had abandoned his requests for withholding of removal

and CAT protection. The BIA noted, inter alia, that an application

for relief that is not filed within the time limits set by the IJ

is deemed waived.    See 8 C.F.R. § 1003.31(c).     Here, moreover, the


                                   - 4 -
IJ had "adequately apprised the [petitioner], through counsel, of

the deadline for filing his application[s] . . . and that if he

failed to timely submit his applications, they would be deemed

abandoned."   With respect to the petitioner's veiled suggestion

that the missed deadline was attributable to the ineptitude of his

first attorney, the BIA responded that more than a generalized

assertion was needed to make out an ineffective assistance of

counsel claim.   Citing Matter of Lozada, 19 I. & N. Dec. 637, 639

(B.I.A. 1988), the BIA proceeded to give the petitioner chapter

and verse concerning the prerequisites for an alien's ineffective

assistance of counsel claim.2




     2 The BIA's decision in Lozada is widely recognized as a
leading case with respect to claims of ineffective assistance of
counsel in the immigration context. See, e.g., García v. Lynch,
821 F.3d 178, 180-81 (1st Cir. 2016); Orehhova v. Gonzales, 417
F.3d 48, 51-52 (1st Cir. 2005); Saakian v. I.N.S., 252 F.3d 21,
25-27 (1st Cir. 2001). Lozada requires that a motion to reopen
based on ineffective assistance of counsel be supported by:
          (1) an affidavit explaining the petitioner's
          agreement   with   counsel    regarding    legal
          representation; (2) evidence that counsel has
          been   informed   of    the    allegations    of
          ineffective   assistance    and   has   had   an
          opportunity to respond; and (3) if it is
          asserted that counsel's handling of the case
          involved a violation of ethical or legal
          responsibilities, a complaint against the
          attorney filed with disciplinary authorities
          or, in the alternative, an explanation for why
          such a complaint has not been filed.
García, 821 F.3d at 180 n.2 (quoting Taveras-Duran v. Holder, 767
F.3d 120, 123 n.2 (1st Cir. 2014)); see Lozada, 19 I. & N. Dec. at
639.


                                - 5 -
              The petitioner did not seek judicial review of the BIA's

removal order, and the matter lay fallow for roughly four and one-

half years.      At that point, the petitioner — through yet a third

attorney — filed a motion beseeching the BIA to vacate the 2012

removal order and reopen the removal proceedings.             Along with his

motion   to    reopen,    the   petitioner   proffered   applications    for

asylum, withholding of removal, and CAT protection.              The motion

was untimely, see 8 C.F.R. § 1003.2(c)(2), but the petitioner

maintained that the ninety-day filing deadline should be equitably

tolled due to ineffective assistance of counsel.              Relatedly, he

claimed to have learned only recently that his first attorney had

been disbarred in October of 2012 for failing to represent his

immigration     clients    appropriately     and   misrepresenting   matters

pertaining to them.       The BIA found no basis for equitable tolling:

in its view, the petitioner had not exercised due diligence during

the four and one-half years after he was explicitly informed of

the steps required to raise his ineffective assistance of counsel

claim.   Consequently, the BIA refused to relax the time bar and

denied the motion to reopen as untimely.            See id.   This petition

for judicial review followed.3       See 8 U.S.C. §    1252(a)(1), (b)(6).


     3 The petitioner also sought a stay of removal.       In an
unpublished order, we concluded that the petitioner had not
satisfied the requirements for a stay because he had failed to
show either a likelihood of success on the merits or irreparable
injury. See Nken v. Holder, 556 U.S. 418, 434-35 (2009). The
petitioner has since been removed to El Salvador, but his removal


                                    - 6 -
             Motions to reopen removal proceedings run at cross-

purposes with "the compelling public interests in finality and the

expeditious       processing      of    proceedings."       Guerrero-Santana       v.

Gonzales,    499    F.3d   90,     92    (1st    Cir.   2007)   (quoting    Raza   v.

Gonzales, 484 F.3d 125, 127 (1st Cir. 2007)).                   Such motions are,

therefore, disfavored.            See Sihotang, 900 F.3d at 48; Guerrero-

Santana, 499 F.3d at 92.           As a result, we review the BIA's denial

of   a   motion    to    reopen    under    a    highly    deferential     abuse-of-

discretion standard.          See Bbale v. Lynch, 840 F.3d 63, 66 (1st

Cir.     2016).     We    will    uphold    the    BIA's    decision   unless      the

petitioner can show that the BIA either committed a material error

of law or exercised its authority arbitrarily, capriciously, or

irrationally.       See id.

             Some special constraints apply to motions to reopen

removal proceedings.           In particular, such motions are "limited

both numerically and temporally."                 Meng Hua Wan v. Holder, 776

F.3d 52, 56 (1st Cir. 2015).             As a general rule, a party may file

only a single motion to reopen, which must be filed within ninety

days of the issuance of the final administrative order.                       See 8

U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).                       Here, the

petitioner filed only a single motion to reopen, but that motion

was plainly out of time:           he did not file it until more than four



does not render his petition for judicial review moot.                     See Lopez
v. Gonzalez, 549 U.S. 47, 52 n.2 (2006).


                                         - 7 -
years after the entry of the BIA's final order of removal.                   To

excuse this protracted delay, the petitioner seeks refuge in the

equitable tolling doctrine.        See, e.g., Neves v. Holder, 613 F.3d

30,   36    (1st   Cir.   2010)   (per    curiam)      (describing   doctrine).

Specifically,      he   avers   that   his     first   attorney's    ineffective

assistance, combined with the fact that he learned only recently

that the attorney had been disbarred, entitles him to the balm of

equitable tolling.4       In the alternative, he argues that his due

process right to present his case for relief from removal was

violated through his first attorney's ineffective assistance.                We

examine these claims one by one.

             We start with a word of caution:              "whether equitable

tolling can suspend the time limits applicable to motions to

reopen" is an open question in the First Circuit.              Xue Su Wang v.

Holder, 750 F.3d 87, 90 (1st Cir. 2014).               Here, however, we need

not answer that question, as the petitioner's quest for equitable

tolling is manifestly unavailing.                Thus, we assume — without

deciding — that equitable tolling may be available in a proper

case.




        4
       The petitioner's claim of ineffective assistance is directed
solely at his first attorney. He does not suggest that his second
attorney, who represented him in the original proceedings before
the BIA, performed ineffectively.



                                       - 8 -
               This arguendo assumption does not benefit the petitioner

because his case presents no fertile soil for equitable tolling.

"The equitable tolling doctrine extends statutory deadlines in

extraordinary circumstances for parties who were prevented from

complying with them through no fault or lack of diligence of their

own."    Neves, 613 F.3d at 36.            To reap the benefit of equitable

tolling, a party must establish:              "(1) that he has been pursuing

his     rights     diligently,       and    (2)   that   some   extraordinary

circumstance stood in his way."                Xue Su Wang, 750 F.3d at 90

(quoting Neves, 613 F.3d at 36).

               In the case at hand, the BIA found equitable tolling to

be beyond the petitioner's reach because he had not exercised due

diligence during the lengthy period that elapsed between the BIA's

affirmance of the IJ's removal order and the date on which the

petitioner moved to reopen the removal proceedings. The petitioner

faults the BIA's reasoning, arguing that he diligently pursued his

rights    by     hiring   multiple    attorneys    and   attending   hearings.

Relatedly, he argues that he was unable to assert an ineffective

assistance of counsel claim between the date of the BIA's 2012

order of removal and the filing of his 2017 motion to reopen

because he did not know that his first attorney had been disbarred.

These arguments miss the mark:             they do not adequately explain why

the petitioner waited four and one-half years before making any

effort to reopen the removal proceedings, notwithstanding that the


                                       - 9 -
BIA had informed him in its 2012 decision of the elements that he

needed to assert his ineffective assistance of counsel claim.

Forewarned should be forearmed, see Kassel v. Gannett Co., 875

F.2d 935, 940 (1st Cir. 1989) (citing Miguel de Cervantes, Don

Quixote de la Mancha III, 10 (1615)), and the petitioner's largely

unexplained delay in the assertion of his ineffective assistance

of counsel claim is the polar opposite of due diligence.   See Meng

Hua Wan, 776 F.3d at 58 (upholding BIA finding of no due diligence

where petitioner attempted to reopen years after being removed

despite having received instructions regarding reopening).

           The petitioner demurs, pointing out that he hired three

separate lawyers during the course of his removal proceedings.

But merely hiring lawyers does not create a safe harbor especially

where, as here, none of the petitioner's lawyers was on deck during

the critical period.    His first attorney represented him before

the IJ; his second attorney represented him during his appeal of

the IJ's removal order to the BIA; and his third attorney filed

the untimely motion to reopen and the instant petition for judicial

review.   That chronology leaves an obvious gap between 2012 and

2017.   Yet the petitioner has offered no plausible explanation for

the lengthy period of inactivity between the work done by his

second attorney (ending in 2012) and the engagement of his third

attorney (beginning in or around 2017). This period of inactivity,

which occurred after the BIA informed him of the prerequisites for


                               - 10 -
an ineffective assistance of counsel claim, solidly supports the

BIA's finding that the petitioner failed to pursue his immigration

case with due diligence.              See Guerrero-Santana, 499 F.3d at 94

(upholding BIA determination that petitioner failed to exercise

due diligence when he waited four years before hiring an attorney

and did not promptly move to reopen).

             Nor does the fact that the petitioner learned only

recently that his first attorney had been disbarred tip the

decisional     calculus.      For      one    thing,   the   petitioner's    first

attorney was disbarred two months before the BIA's 2012 order of

removal was entered.         Were the petitioner to have employed due

diligence, he could have verified the status of his first attorney

at the time the BIA dismissed his appeal.

             For another thing — and perhaps more importantly — the

BIA's 2012 decision carefully delineated the requirements for an

ineffective     assistance       of    counsel    claim,     and   there    is    no

requirement that the client show the offending attorney has been

disbarred.     See supra note 2.        Yet the petitioner sat on his hands

as the years went by and, for aught that appears, did not lift a

finger for over four years to assemble the ingredients of an

ineffective assistance claim.                We have said before — and today

reaffirm   —    that    "[t]he    [equitable      tolling]    doctrine     is    not

available as a means of rescuing a party who has failed to exercise

due diligence."        Guerrero-Santana, 499 F.3d at 94.


                                       - 11 -
            That    ends   this   aspect       of    the    matter.     The   BIA's

discretionary decision about whether to grant an untimely motion

to reopen is entitled to great respect.                     See Beltre-Veloz v.

Mukasey, 533 F.3d 7, 11 (1st Cir. 2008).              Here, the BIA has neither

committed    a     material   error    of      law    nor    acted    arbitrarily,

capriciously, or irrationally. On this record, we discern no abuse

of discretion in the BIA's determination that the petitioner failed

to demonstrate due diligence in filing his untimely motion to

reopen.     What we have said in a different context rings equally

true here:       "The law ministers to the vigilant not to those who

sleep upon perceptible rights."             Puleio v. Vose, 830 F.2d 1197,

1203 (1st Cir. 1987).

            This leaves the petitioner's claim that the BIA violated

his due process rights by preventing him from presenting his case

on the merits.         This claim stumbles at the threshold:                   the

petitioner did not raise it in his motion to reopen and, therefore,

we lack jurisdiction to adjudicate it.               We explain briefly.

            In the immigration context, it is a condition precedent

to judicial review of any given claim that the petitioner "has

exhausted all administrative remedies available to [him] as of

right."     8 U.S.C. § 1252(d)(1).          The purpose of this exhaustion

requirement is to ensure that a court will not commandeer an

agency's prerogatives.        See Meng Hua Wan, 776 F.3d at 56.            To this

end, a court must "allow[] the agency the first opportunity to


                                      - 12 -
correct its own bevues."      Mazariegos-Paiz v. Holder, 734 F.3d 57,

63 (1st Cir. 2013).

          In   this   case,   the   record   makes   manifest   that   the

petitioner's due process claim is debuting in this court; the

petitioner simply did not raise this claim, or anything like it,

in his motion to reopen.       Nor was the claim raised at any time

before the BIA.   Consequently, we lack jurisdiction to entertain

the petitioner's due process claim.       See García v. Lynch, 821 F.3d

178, 181-82 (1st Cir. 2016); cf. Ahmed v. Holder, 611 F.3d 90, 97

(1st Cir. 2010) (explaining that "arguments not made before the

BIA may not make their debut in a petition for judicial review of

the BIA's final order").

          We need go no further. For the reasons elucidated above,

the petition for judicial review is denied.




                                 - 13 -
