12-4421-ag
Fuentes v. Holder
                                                                                         BIA
                                                                                  Vomacka, IJ
                                                                                 A094 762 542
                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 26th day of December, two thousand thirteen.

PRESENT: REENA RAGGI,
           DENNY CHIN,
           CHRISTOPHER F. DRONEY,
                 Circuit Judges.
_____________________________________

ANIBAL DE JESUS FUENTES, AKA
ANIBAL FUENTES CHICAS,
               Petitioner,

                    v.                                  No. 12-4421-ag

ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
                 Respondent.
_____________________________________

APPEARING FOR PETITIONER:                        DAVID M. SPERLING, Central Islip,
                                                 New York.
APPEARING FOR RESPONDENT:                      ANDREW N. O’MALLEY, Trial
                                               Attorney (Stuart F. Delery, Assistant
                                               Attorney General; Ernesto H. Molina,
                                               Jr., Assistant Director, on the brief),
                                               Office of Immigration Litigation, United
                                               States Department of Justice,
                                               Washington, D.C.

       UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is GRANTED and the case is REMANDED to the

BIA.

       Anibal De Jesus Fuentes, a native and citizen of El Salvador, seeks review of an

October 11, 2012 order of the BIA affirming the June 7, 2011 decision of Immigration

Judge (“IJ”) Alan A. Vomacka denying Fuentes’s application for Temporary Protected

Status (“TPS”). See In re Anibal De Jesus Fuentes, No. A094 762 542 (B.I.A. Oct. 11,

2012), aff’g No. A094 762 542 (Immig. Ct. N.Y. June 7, 2011). Under the circumstances

of this case, we have considered both the IJ’s and the BIA’s opinions. See Zaman v.

Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). We review the agency’s factual findings

under the substantial evidence standard, and we review questions of law and the

application of law to undisputed fact de novo. See 8 U.S.C. § 1252(b)(4)(B); Yanqin

Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009); Iavorski v. I.N.S., 232 F.3d 124, 128

(2d Cir. 2000) (Sotomayor, J.). We assume the parties’ familiarity with the facts and the

record of prior proceedings, which we reference only as necessary to explain our

decision.




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       TPS affords an eligible non-citizen protection from removal upon a determination

by the Attorney General that conditions in the applicant’s native country prevent safe

return. See 8 U.S.C. § 1254a. To obtain TPS, an alien must, inter alia, file an application

with U.S. Citizenship and Immigration Services (“CIS”) during the initial registration

period announced by public notice in the Federal Register, or satisfy one of four late

registration criteria. See id.; 8 C.F.R. § 1244.2. If CIS denies a TPS application, the TPS

applicant may appeal the denial to the Administrative Appeals Office (“AAO”), and if the

AAO dismisses the appeal, the applicant may be issued with a charging document placing

him in removal proceedings. See 8 U.S.C. § 1254a(b)(5)(B); 8 C.F.R. § 1244.10(d). In

removal proceedings, he is entitled to de novo review of his eligibility for TPS. See 8

C.F.R. §§ 1244.10(d), 1244.11; Matter of Lopez-Aldana, 25 I. & N. Dec. 49, 50–51

(B.I.A. July 15, 2009).

       The Attorney General designated El Salvador for TPS in March 2001, due to a

series of earthquakes there in early 2001, and the registration period ran until September

9, 2002. See Designation of El Salvador Under Temporary Protected Status Program, 66

Fed. Reg. 14,214, 14,215 (Mar. 9, 2001). It is undisputed that Fuentes did not file his

first application for TPS until November 2002, after the filing deadline expired, and

Fuentes does not argue that he satisfied any of the late registration criteria listed in 8

C.F.R. § 1244.2(f)(2). Instead, before the IJ, Fuentes sought to renew his original TPS

application, arguing that the filing deadline should have been equitably tolled due to his

justified reliance on an individual named Alfredo Rios, who misrepresented himself to be

an attorney, and who failed timely to file Fuentes’s initial TPS application. The agency


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assumed without discussion that the TPS registration period could be equitably tolled,

based on ineffective assistance of counsel, including where, as here, the ineffective

assistance is provided by someone who is not, in fact, an attorney.1 Nevertheless, the

BIA concluded that Fuentes could not benefit from equitable tolling because he did not

exercise due diligence.

      In the context of a motion to reopen based on ineffective assistance of counsel, the

filing deadline will be tolled until the ineffective assistance is or should have been

discovered. See Cekic v. I.N.S., 435 F.3d 167, 171 (2d Cir. 2006). From the point at

which ineffectiveness is actually discovered or should have been discovered, the

individual seeking to toll the deadline must show that he pursued his case with due

diligence. See id. The BIA stated that Fuentes was “aware as early as January 2002,

when he complained to Mr. Rios that he had not received employment authorization that

something was wrong with his application.” In re Anibal De Jesus Fuentes, No. A094

762 542, at 2. Even assuming that this statement constitutes an explicit finding by the

BIA that Fuentes discovered or should have discovered Rios’s fraud or ineffectiveness by

January 2002, such a finding cannot by itself support an adverse determination on due

diligence because at that time the deadline for filing the TPS application was still nine

months away. The BIA does not explain what actions, demanded by due diligence,


1
 We express no view on the matter. Nor do we preclude the agency from addressing this
question more fully on remand. See generally Omar v. Mukasey, 517 F.3d 647, 650 (2d
Cir. 2008) (“Whether a petitioner can bring a claim of ineffective assistance due to the
actions of a non-attorney immigration consultant . . . [has] not yet been settled in this
Circuit and … [is] currently being considered by the BIA.”).


                                            4
Fuentes failed to take between January and November 2002 that support the denial of

tolling. In the absence of such an explanation, we cannot conduct even the highly

deferential review provided by law. See 8 U.S.C. § 1252(b)(4)(B); Iouri v. Ashcroft, 487

F.3d 76, 81 (2d Cir. 2007).

       Moreover, the record indicates that CIS received Fuentes’s TPS application in

November 2002 and rejected it in March 2003 due not to untimeliness but, rather, to a

payment deficiency. According to Fuentes, Rios assured him that this rejection was an

error by CIS and that Fuentes should renew his application, which Fuentes did—through

Rios—in July 2004. When this application was denied as untimely, Fuentes—acting on

the advice of Rios or an attorney recommended by him—filed further TPS applications in

January 2005 and September 2007, which were also denied. At the same time, Fuentes

also appealed to the AAO the denials of his 2004, 2005 and 2007 applications, which

were dismissed. Fuentes argues that his repeated applications and appeals, understood in

the context of advice from Rios that he would resolve the situation if Fuentes continued

to file, demonstrated his due diligence. See Cekic v. I.N.S., 435 F.3d at 171 (concluding

that applicants’ reliance on their attorney’s repeated assurances that their case was being

pursued for two years after they learned they were subject to orders of removal was

reasonable).

       Because the record here does not manifest the sort of inaction evident in cases

such as Iavorski v. I.N.S., 232 F.3d at 134 (concluding no due diligence where applicant

waited two years after being unable to reach his attorney to ascertain status of appeal to

file motion to reopen), and because the BIA did not indicate what more Fuentes could


                                            5
have done (and when) to demonstrate due diligence, we cannot evaluate the agency

action.

          In such circumstances, the proper course is to remand for additional agency

explanation. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); Twum

v. I.N.S., 411 F.3d 54, 61 (2d Cir. 2005) (Sotomayor, J.).

          Accordingly, for the reasons stated, the petition for review is GRANTED, and the

case is REMANDED to the BIA for further proceedings consistent with this order,

whereupon either party may seek to have the matter restored to the court’s docket for

assignment to a panel in due course.

                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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