     Case: 09-60795   Document: 00511717991     Page: 1   Date Filed: 01/09/2012




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                     Fifth Circuit

                                                                   FILED
                                                                 January 9, 2012
                                  No. 09-60795                    Lyle W. Cayce
                                                                       Clerk


BRUNO RODRIGUEZ-MANZANO, also known as Bruno Manzano,

                                            Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                            Respondent.



                 Appeal from the Board of Immigration Appeals


Before WIENER, CLEMENT, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
        Rodriguez-Manzano appeals both the Board of Immigration Appeals’
(“BIA’s”) dismissal of his initial appeal of the denial of his motion to reopen his
deportation proceedings because of ineffective assistance of counsel and its
denial of his motion for reconsideration. We AFFIRM the denial of Rodriguez-
Manzano’s initial motion to reopen.        We REVERSE the BIA’s denial of
Rodriguez-Manzano’s motion for reconsideration, however, because it abused its
discretion by ignoring its own precedent to require Rodriguez-Manzano to show
that he had exercised due diligence in pursuing his ineffective assistance of
counsel claim.
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                                          I.
      In October 1987, Rodriguez-Manzano, an El Salvadorian citizen, received
an order to show cause from the then-Immigration and Naturalization Service1
charging him with entering the United States without an inspection. His
attorney at that time, Roberto Ramos, admitted the allegations against him,
conceded the charge, and requested asylum. In August 1988, the Immigration
Judge sent Ramos a letter, notifying him that an “individual calendar hearing
was scheduled for September 29, 1988, at the Immigration Judge’s office in
Harlingen, Texas.” When Rodriguez-Manzano failed to appear at the hearing,
the Immigration Judge issued a boilerplate order that Rodriguez-Manzano be
deported.
      Nearly twenty years later, through new counsel, Rodriguez-Manzano filed
a motion to reopen the proceedings against him, arguing that Ramos’s ineffective
assistance excused his failure to attend the 1988 hearing. Rodriguez-Manzano
argued that “Mr. Ramos obviously failed to contact or notify [him] regarding his
subsequent hearings before the Immigration Court.” The Immigration Judge
denied Rodriguez-Manzano’s motion, finding that Rodriguez-Manzano had failed
to comply with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA
1988). Lozada requires an alien seeking to reopen deportation proceedings
because of ineffective assistance of counsel to present: (1) an affidavit from the
alien detailing the relationship with counsel; (2) evidence that former counsel
had been informed of the ineffective assistance of counsel claim and given a
chance to respond to it; and (3) evidence as to whether a complaint had been
filed with the appropriate disciplinary authorities. Lara v. Trominski, 216 F.3d
487, 496 (5th Cir. 2000); Lozada, 19 I. & N. Dec. at 639.




      1
         The Immigration and Naturalization Service’s responsibilities have since been
transferred to the Department of Homeland Security’s Bureau of Immigration and Customs
Enforcement. Zaidi v. Ashcroft, 374 F.3d 357, 358 n.1 (5th Cir. 2004).

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       Rodriguez-Manzano appealed the Immigration Judge’s decision to the BIA.
The BIA cited In re Cruz Garcia, 22 I. & N. Dec. 1155 (BIA 1999) in support of
its conclusion that Rodriguez-Manzano’s motion to reopen was timely despite
current regulations that impose timing limitations on motions to reopen filed
today, because those regulations do not apply to motions to reopen deportation
proceedings like Rodriguez-Manzano’s that commenced in 1987. Although it
concluded that the motion was timely filed, it dismissed Rodriguez-Manzano’s
appeal, determining that he had failed to comply with Lozada. Rodriguez-
Manzano filed a timely petition for review of the BIA’s decision.
       Rodriguez-Manzano filed a motion for reconsideration2 of the BIA’s denial
of his motion to reopen, or, in the alternative, a motion for the BIA to reopen the
merits of his case sua sponte. Rodriguez-Manzano argued that since the BIA
issued its original decision, he had complied with Lozada and attached a copy of
a bar complaint he had filed against Ramos to his Motion for Reconsideration.
He claimed that his prior failure to comply with Lozada was justified because he
had been unable to locate Ramos. Indeed, further investigation revealed that
Ramos was not a licensed attorney in Texas and that he no longer resided in the
United States. Rodriguez-Manzano also claimed that Ramos’s law office—the
Law Office of Lionel Perez—refused to offer him any assistance in locating
Ramos. The BIA agreed that Rodriguez-Manzano had complied with Lozada.
Nevertheless, it denied his motion, reasoning that Rodriguez-Manzano had
failed to pursue his claim with due diligence. Rodriguez-Manzano filed a timely
petition for review of the BIA’s decision.



       2
         Although Rodriguez-Manzano styled his motion as a motion for reconsideration or for
sua sponte reopening of the Board’s September 28, 2009, decision, the motion did not allege
a legal or factual error in that decision. Instead, he proffered additional documentation meant
to satisfy Lozada, and , thus, the BIA properly considered the motion a motion to reopen. See
Ramos-Bonilla v. Mukasey, 543 F.3d 216, 219 n.3 (5th Cir. 2008). For clarity’s sake, we refer
to Rodriguez-Manzano’s first motion as his motion to reopen and his second motion as his
motion for reconsideration.

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                                         II.
      We first explain this case’s statutory background that provides the basis
of our jurisdiction over this appeal. Proceedings against Rodriguez-Manzano
commenced in 1987. At that time, judicial review of the BIA’s decisions was
governed by Section 106(a) of the Immigration and Nationality Act (INA). See
Medina v. INS, 1 F.3d 312, 314 & n.4 (5th Cir. 1993) (explaining that under
Section 106(a), BIA decisions are appealed directly to the Court of Appeals).
Since then, however, Congress has enacted two laws affecting our jurisdiction
over claims raised in immigration petitions.
      First, Congress repealed Section 106(a) of the INA and enacted the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.
L. No. 104-208, 110 Stat. 3009 (1996), which contained transitional rules
limiting the scope of judicial review of deportation proceedings commenced prior
to its effective date of April 1, 1997. IIRIRA §§ 306(b) & 309(c). Second, in 2005,
Congress enacted the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231 (2005)
(codified as amended at 8 U.S.C. § 1252), Section 106(d) of which provides:
      A petition for review filed under former section 106(a) of the
      Immigration and Nationality Act (as in effect before its repeal by
      section 306(b) of the Illegal Immigration Reform and Immigrant
      Responsibility Act of 1996 . . .) shall be treated as if it had been filed
      as a petition for review under section 242 of the Immigration and
      Nationality Act (8 U.S.C. 1252), as amended by this section.

Accordingly, the jurisdictional rules codified in 8 U.S.C. § 1252 control here.
      The government contends that our decision in Ramos-Bonilla v. Mukasey,
543 F.3d 216 (5th Cir. 2008), prevents us from exercising jurisdiction here. In
that case, the BIA denied Ramos-Bonilla’s 2007 motion to reopen his deportation
proceedings for not being timely filed as required by 8 C.F.R. § 1003.2(c)(2). Id.
at 218-19. Ramos-Bonilla appealed, arguing that the BIA abused its discretion
by failing to apply equitable tolling or waive 8 C.F.R. § 1003.2(c)(2)’s limitations
on motions to reopen. Id. at 219. We agreed with the BIA that, under current


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regulations, Ramos-Bonilla’s motion was untimely, and thus “the only remedy
available was under the IJ’s or the BIA’s sua sponte authority to reopen the
case.” Id. at 219. We held that because those regulations “g[a]ve[] an IJ or the
BIA complete discretion to deny untimely motions to reopen, the reviewing court
ha[d] no legal standard by which to judge the IJ’s ruling, and therefore the court
lack[ed] jurisdiction.” Id. at 220 (citing Enriquez-Alvarado v. Ashcroft, 371 F.3d
246, 249-50 (5th Cir. 2004)).
       Relying on that case, the government argues that we lack jurisdiction to
review Rodriguez-Manzano’s claim because his motion was untimely, and
therefore, the BIA could only grant it sua sponte. The government’s reliance on
Ramos-Bonilla is misplaced because the regulatory regime relevant to that case
does not apply here. For deportation orders issued prior to 1992, like Rodriguez-
Manzano’s, there are no time limits on motions to reopen or reconsider. See
Cruz-Garcia, 22 I. & N. Dec. at 1159 (holding that post-1992 regulations
imposing timing requirements on motions to reopen deportation proceedings do
not apply retroactively to motions to reopen deportation proceedings
commencing before 1992).3 Therefore, Rodriguez-Manzano’s motion was not
untimely, and we have jurisdiction to review the BIA’s decision.
       We review the BIA’s decision, considering the Immigration Judge’s
underlying decision only if it influenced the BIA’s determination. Ontunez-
Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002). We review the denial of

       3
          Ramos-Bonilla’s motion was governed by the same regulations that apply to motions
filed today. 8 C.F.R. § 1003.2(c)(2)’s time limitation requires an alien to file a motion to reopen
“no later than 90 days after the date on which the final administrative decision was rendered
in the proceeding sought to be reopened.” Its number limitation restricts aliens to only one
motion to reopen. 8 C.F.R. § 1003.2. Similar limits apply to motions to reopen in absentia
deportation proceedings. See 8 C.F.R. § 1003.23(b)(4)(ii) (setting forth a 180-day deadline for
filing motions to reopen deportation orders entered in absentia, and explaining that an “alien
may file only one motion pursuant to this paragraph”).
        Both of Rodriguez-Manzano’s petitions would fail if the current regulations applied
here: his first petition would be time-barred, and the second would be both time and number-
barred. If that were the case, he would be forced to invoke the BIA’s sua sponte authority, the
exercise of which we lack jurisdiction to review.

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a motion to reopen under “a highly deferential abuse-of-discretion standard.”
Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). We must uphold
the BIA’s decision unless it was “capricious, racially invidious, utterly without
foundation in the evidence, or otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational approach.” Singh v. Gonzales, 436
F.3d 484, 487 (5th Cir. 2006) (internal quotation marks omitted). Although we
review questions of law de novo, we “accord[] deference to the BIA’s
interpretation of immigration statutes unless the record reveals compelling
evidence that the BIA’s interpretation is incorrect.” Gomez-Palacios, 560 F.3d at
358 (citing Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997)).
                                              III.
1.      Rodriguez-Manzano’s Initial Motion To Reopen
        Rodriguez-Manzano argues that the BIA abused its discretion by denying
his initial motion to reopen. In 1988, when the Immigration Judge ordered
Rodriguez-Manzano deported, Section 1252(b) required an alien seeking to
reopen an in absentia deportation proceeding to demonstrate “reasonable cause”
for failing to attend the previous hearing.1 Williams-Igwonobe v. Gonzales, 437
F.3d 453, 455 (5th Cir. 2006) (observing that where an alien seeks to open a
deportation hearing conducted under Section 1252(b) where the immigration
judge reached the merits of the alien’s claim for relief, the reasonable cause
standard applies).2       Ineffective assistance of counsel can justify reopening

       1
        Current regulations are stricter. Today, courts may only grant motions to reopen an
order entered in absentia if the alien’s failure to attend was due to “exceptional circumstances”
beyond his control. 8 C.F.R. § 1003.23(b)(4)(ii).
       2
        Neither party challenges the Immigration Judge’s or the BIA’s application of the
“reasonable cause” standard. We have held, however, that in cases like this one where the
Immigration Judge does not reach the merits of the alien’s claims and instead orders him
deported in a boilerplate order strictly because he failed to attend his hearing, the alien need
not show reasonable cause for his failure to attend the hearing. Williams-Igwonobe v.
Gonzales, 437 F.3d 453, 455-56 (5th Cir. 2006). Even if Rodriguez-Manzano were not required
to show reasonable cause for his failure to attend the hearing, he would still be required to
meet Lozada’s requirements in order to justify reopening his deportation proceedings. See, e.g.,

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deportation proceedings if the alien (1) provides an affidavit attesting to the
relevant facts, including a statement of the terms of the attorney-client
agreement; (2) informs counsel of the allegations and allows counsel an
opportunity to respond; and (3) files a grievance or explains why a grievance has
not been filed against the offending attorney. Mai, 473 F.3d at 165 (citing
Lozada, 19 I. & N. Dec. at 639); Lara, 216 F.3d at 496 (citing Lozada, 19 I. & N.
Dec. at 639).
       The BIA rejected Rodriguez-Manzano’s first motion to reopen, finding that
he had failed to meet Lozada’s second requirement. Instead of arguing that he
had met that requirement, Rodriguez-Manzano contends that because Ramos
had left the country and because he did not see how compliance with Lozada
would “serve any bona fide interests,” we should apply Lozada flexibly and
excuse his non-compliance. We have rejected similar arguments for a flexible
approach to Lozada. See Lara, 216 F.3d at 497-98 (confirming that the BIA does
not abuse its discretion by requiring compliance with Lozada). Therefore, the
BIA did not abuse its discretion by denying Rodriguez-Manzano’s initial motion
to reopen.3




Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006) (citing Lozada, 19 I. & N. Dec. at 639)
(confirming that Lozada applies to motions to reopen deportation proceedings based on
ineffective assistance of counsel, even when the reasonable cause standard does not apply).
Therefore, we do not tarry over the BIA’s application of the reasonable cause standard.
       3
          Rodriguez-Manzano makes two other arguments that can be quickly dispatched.
First, he contends that the fact that Ramos was not licensed as an attorney in Texas excuses
his failure to meet Lozada’s second requirement. That argument fails, though, because he did
not raise it before either the Immigration Judge or the BIA. Accordingly, he failed to exhaust
his administrative remedies regarding this claim, and we will not consider it. Wang v.
Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001) (“An alien fails to exhaust his administrative
remedies with respect to an issue when the issue is not raised in the first instance before the
BIA—either on direct appeal or in a motion to reopen.”). Second, Rodriguez-Manzano argues
that he did not receive notice of the hearing even though his attorney did. At the time of
Rodriguez-Manzano’s 1988 deportation hearing, however, properly notifying his former counsel
of the time, date, and location of the hearing constituted adequate notice to Rodriguez-
Manzano. Men Keng Chang v. Jungi, 669 F.2d 275, 277-78 (5th Cir. 1982).

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2.      Rodriguez-Manzano’s Motion for Reconsideration
        Rodriguez-Manzano argues that the BIA abused its discretion by denying
his motion for reconsideration as well. The BIA concluded, and the government
conceded at oral argument, that Rodriguez-Manzano had complied with Lozada
by the time he filed his second motion to reopen. The BIA nevertheless denied
Rodriguez-Manzano’s argument, contending that, despite his compliance with
Lozada, he had failed to pursue his ineffective assistance of counsel argument
with due diligence. For the reasons that follow, we hold that the BIA abused its
discretion by requiring Rodriguez-Manzano to exercise due diligence in moving
to reopen his deportation proceedings.
        Despite the deferential standard of review we apply here, we cannot affirm
the imposition of a judge-made due diligence requirement in this case. Lozada
imposed no due diligence requirement on motions to reopen based on claims of
ineffective assistance of counsel, and the government points to no other
authority to support the imposition of such a requirement in this case. In fact,
the BIA ignored its own precedent to impose the due diligence requirement in
this case. In In re Cruz Garcia, the BIA held that current regulations that
impose timing requirements on motions to reopen do not apply to motions to
reopen deportation proceedings that commenced before 1992 like Rodriguez-
Manzano’s. 22 I. & N. Dec. at 1156 n.1 (holding that deportation proceedings
commencing prior to June 13, 1992, were governed by 8 U.S.C. § 1252(b) and
thus were not subject to the timing requirements of current regulations); see also
Williams-Igwonobe, 437 F.3d at 455 n.1 (citing In re Cruz Garcia for the
proposition that motions to reopen deportation proceedings commencing in 1988
are governed by Section 1252(b), not the stricter regulations in place today). The
BIA’s decision to impose a due diligence requirement on Rodriguez-Manzano’s
motion to reopen, directly contravenes In re Cruz Garcia by imposing what is
effectively a timing limitation on motions to open pre-1992 deportation
proceedings.

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      The BIA’s decision to ignore its own precedent in this case is especially
troubling because in its decision affirming the Immigration Judge’s denial of
Rodriguez-Manzano’s original motion to reopen his deportation proceedings, the
BIA cited In re Cruz Garcia to support its observation that “the respondent filed
the motion to reopen in a timely manner as the regulation at 8 C.F.R. §
1003.23(b)(4)(A)(2) imposes no time or numerical limitation on aliens seeking to
reopen deportation proceedings conducted in absentia pursuant to section 242(b)
of the Act.” In re Rodriguez-Manzano, No. A028 641 721 ¶ 4 (BIA Sep. 28, 2009)
(emphasis added) (citing In re Cruz Garcia, 22 I. & N. Dec. 1155; Matter of
Mancera, 22 I. & N. Dec. 79 (BIA 1998)). Thus, the BIA knew and apparently
approved of its holding in In re Cruz Garcia, relied on it to state that Rodriguez-
Manzano’s original motion was timely, and then abandoned it in order to justify
rejecting Rodriguez-Manzano’s motion for reconsideration once he had complied
with Lozada. The BIA may not apply its precedents arbitrarily. In re Cruz
Garcia either applies or it does not. We hold that it does, and the BIA’s decision
to ignore it after citing it approvingly in the same case was an abuse of
discretion.
      As In re Cruz Garcia explained, since 1987—when the deportation
proceedings in this case commenced—the Department of Justice (“DOJ”) has
imposed its own regulatory scheme in this complex area of law that includes
time limitations on motions to reopen but not in cases as old as this one. In re
Cruz Garcia, 22 I. & N. at 1159 & n.1. All motions to reopen post-1992
deportation proceedings must be timely filed.         See 8 C.F.R. § 1003.2(c)(2)
(requiring aliens to file motions to reopen “no later than 90 days after the date
on which the final administrative decision was rendered in the proceeding
sought to be reopened”); 8 C.F.R. § 1003.23(b)(4)(ii) (setting forth a 180-day
deadline for filing motions to reopen deportation orders entered in absentia).
Those regulations did not apply when proceedings against Rodriguez-Manzano
commenced in 1987, and the DOJ did not see fit to apply the current, more

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restrictive regulatory scheme retroactively to cases like Rodriguez-Manzano’s.
See Cruz Garcia, 22 I. & N. at 1159 & n.3 (holding that the time limitations in
place under current regulations do not apply to motions to reopen governed by
Section 1252(b) and noting that “[n]othing prevents the Department of Justice
from revising the current regulation to fill the regulatory gap in a manner that
would create specific restrictions on motions to reopen deportation proceedings
conducted in absentia pursuant to [Section 1252(b)]”). In light of the DOJ’s
imposition of time limitations to post-1992 deportation proceedings but not to
pre-1992 deportation proceedings, it was improper for the BIA to insert its policy
preferences into this complex and carefully calibrated area of law at this late
stage.4 This is especially true here, where doing so required the BIA to ignore
its own precedent directly on point. Therefore, the BIA abused its discretion by
denying Rodriguez-Manzano’s motion to reopen because he failed to pursue this
matter with due diligence.
                                              IV.
       We AFFIRM the denial of Rodriguez-Manzano’s first motion to reopen his
deportation proceedings because Rodriguez-Manzano failed to comply with
Lozada. We hold, however, that the BIA abused its discretion by denying
Rodriguez-Manzano’s motion for reconsideration. It imposed a due diligence
requirement that is not part of Lozada’s three-part test. Moreover, in doing so,
it directly contravened its own precedent and its earlier conclusion in this
proceeding relying on that precedent in support of its conclusion that his motion
was in fact timely filed.         Accordingly, we REVERSE the BIA’s denial of




       4
          We note that given this case’s age and its unusual facts, our holding likely will have
little effect on immigration law in this circuit moving forward. Because current regulations
impose what is effectively a due diligence requirement on post-1992 cases, our holding could
only apply to deportation proceedings that commenced before 1992. Our decision simply gives
meaning to DOJ’s decision to apply time limitations to motions to reopen in post-1992
deportation proceedings but not pre-1992 proceedings.

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Rodriguez-Manzano’s motion for reconsideration and REMAND this case to the
BIA for further proceedings consistent with this opinion.




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