     Case: 16-60556      Document: 00514427782         Page: 1    Date Filed: 04/12/2018




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

                                                                               FILED
                                      No. 16-60556                         April 12 2018
                                                                          Lyle W. Cayce
DRIN SYLEJMANI,                                                                Clerk


               Petitioner

v.

JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,

               Respondent




                         Petition for Review of an Order of
                         the Board of Immigration Appeals
                               BIA No. A097-682-016


Before HIGGINBOTHAM, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Petitioner Drin Sylejmani seeks review of an order of the Board of
Immigration Appeals (BIA) denying his motion to reopen removal proceedings
as untimely. Because the BIA failed to provide a reasoned explanation for its
decision, we GRANT Sylejmani’s petition for review and REMAND for further
proceedings.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 16-60556
                                  I. BACKGROUND
       Sylejmani, a citizen of Kosovo, was admitted to the United States on a J-
1 exchange visitor visa. The visa permitted him to remain in the country until
September 30, 2012, but he stayed beyond that date without authorization. In
September 2013, Sylejmani retained attorney Nicholas Nevarez, Jr., who
assisted Sylejmani and Sylejmani’s then-wife (herself a U.S. citizen) with
paperwork supporting Sylejmani’s application for adjustment to lawful
permanent resident status.
       In February 2014, the Department of Homeland Security (DHS)
initiated removal proceedings against Sylejmani, charging that he failed to
maintain his status as an exchange visitor student and had remained in the
United States without authorization. An initial hearing was held before an
immigration judge (IJ) in April 2014. Because Sylejmani did not have an
attorney at the hearing, the IJ continued the proceedings to afford him the
opportunity to obtain one.
       Sylejmani and his first wife divorced on August 21, 2014. Sylejmani then
married his second wife (also a U.S. citizen) on October 7, 2014. Nevarez
witnessed and performed the marriage ceremony. On November 10, 2014,
Sylejmani’s second wife filed a Form I-130 Petition for Alien Relative with
United States Citizenship and Immigration Services (USCIS). 1



       1 As explained by the BIA, the filing of an I-130 with USCIS commences a “two-step
process” for “family-based adjustment of status.” In re Hashmi, 24 I. & N. Dec. 785, 789 (BIA
2009). At the first step, “[t]he petitioner must establish his or her own United States
citizenship or lawful permanent resident status and the bona fides of the claimed relationship
to the beneficiary and must also show that the family relationship meets the statutory
requirements.” Id. At the second step, which begins when “the I-130 is approved and an
immigrant visa is immediately available,” the respondent/beneficiary applies for adjustment
of status. Id. To establish adjustment eligibility, the respondent/beneficiary must show “that
he has been inspected and admitted or paroled into the United States; is eligible to receive
an immigrant visa and has a visa immediately available to him; is not statutorily barred from
adjustment; and is admissible to the United States within the meaning of section 212(a) of
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                                   No. 16-60556
The November 2014 Hearing
      The immigration court held a second hearing on November 12, 2014.
Sylejmani, who was represented by Nevarez at that hearing, conceded
removability but sought relief from removal via adjustment of status. Nevarez
told the IJ that “an I-130 has been filed and is pending.” The IJ observed that
because the second marriage occurred while removal proceedings were
pending, there was a presumption that it was not entered into in good faith,
and that Sylejmani therefore needed to present evidence to rebut that
presumption. The IJ referred to the BIA’s decision in In re Hashmi, 24 I. & N.
Dec. 785 (BIA 2009), which sets forth the factors that an IJ should consider
when determining whether to grant a continuance of “removal proceedings
pending final adjudication of an I-130 filed in conjunction with an adjustment
application” (i.e., a “Hashmi continuance”). Id. at 790.
      Nevarez requested a continuance so that he could gather evidence to
support a request for a Hashmi continuance, telling the IJ that he had just
been retained to represent Sylejmani in the case that same day. The IJ asked
when Sylejmani had hired Nevarez, and Nevarez replied, “for the deportation,
yesterday.” The Government’s attorney opposed a continuance. Nevarez
provided a copy of the I-130 petition and an accompanying letter. The IJ stated
there was no evidence that the I-130 had actually been filed, no copy of the
couple’s marriage license, and no birth certificate or other evidence
establishing that Sylejmani’s second wife was a U.S. citizen. In light of this
lack of evidence, the IJ refused to grant a continuance.




the [Immigration and Nationality] Act or, if inadmissible, is eligible for a waiver of
inadmissibility.” Id.
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                                 No. 16-60556
      Since Nevarez could not present any other basis for relief, the IJ asked
whether Sylejmani wanted to request voluntary departure. The IJ advised
Sylejmani that:
      The benefit to you of voluntary departure . . . is that if your I-130
      is later filed and if it’s approved and you can adjust your status,
      voluntary departure does not prevent you from doing that. If you
      don’t take voluntary departure and you end up with a removal
      order, then of course you’ll be barred from adjusting your status
      for ten years.

After consulting with Nevarez, Sylejmani accepted voluntary departure, which
required him to leave the United States by March 10, 2015. The IJ’s written
order granted Sylejmani “pre-conclusion voluntary departure . . . in lieu of
removal” and included a provision stating that Sylejmani had “waived appeal
of all issues.”
Appeal to the BIA
      Within a month, Sylejmani retained a new attorney, Orlando
Mondragon, who filed an appeal with the BIA. Mondragon argued that the IJ’s
denial of a continuance to allow Nevarez to obtain evidence and familiarize
himself with the case amounted to effective denial of Sylejmani’s right to
counsel, and that the IJ erroneously denied a Hashmi continuance. On October
23, 2015, the BIA dismissed the appeal for lack of jurisdiction, finding that
Sylejmani waived his right to appeal by accepting pre-conclusion voluntary
departure.
The Motion to Reopen
      On April 18, 2016, Sylejmani, having obtained new counsel, filed a
motion to reopen his case with the BIA. His central contention was that
Nevarez and Mondragon rendered             ineffective   assistance of counsel.
Specifically, Sylejmani argued that he hired Nevarez over a year before the
November 2014 hearing, that Nevarez’s unjustifiable failure to prepare for that

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                                   No. 16-60556
hearing resulted in the denial of a Hashmi continuance, and that Nevarez’s
subsequent advice to elect voluntary departure substantially limited
Sylejmani’s ability to obtain other relief. Sylejmani further asserted that
Mondragon provided ineffective assistance by filing an appeal he knew would
be dismissed due to Sylejmani’s waiver, and by advising Sylejmani not to file
a complaint against Nevarez, even though such a complaint would have
allowed   Sylejmani    to    reopen   the   proceedings     based   on   Nevarez’s
ineffectiveness. Sylejmani acknowledged that the motion to reopen had not
been filed within 90 days of the BIA’s dismissal of his appeal but maintained
that equitable tolling applied because (1) the ineffective assistance of both of
his prior attorneys qualified as an extraordinary circumstance, and (2) he was
diligent in pursuing his claims.
      Sylejmani attached a substantial amount of evidence to his motion to
reopen, including: a sworn affidavit recounting his representation by Nevarez
and Mondragon; correspondence with Nevarez and Mondragon regarding their
allegedly deficient performance; grievances filed by Sylejmani against both
attorneys with the State Bar of Texas, and responses thereto; various
immigration forms, including the I-130 petition filed by Sylejmani’s second
wife; tax returns, including a 2014 tax return jointly filed by Sylejmani and his
second wife; and the second wife’s birth certificate, which shows that she was
born in the United States.
The BIA’s Denial of the Motion to Reopen
      On July 22, 2016, the BIA issued an order denying Sylejmani’s motion to
reopen “as untimely filed.” The BIA’s only reference to equitable tolling
appeared in a single sentence: “Moreover, we decline to equitably toll the
applicable time limits based on the respondent’s alleged ineffective assistance
of former counsel(s) claim.”
      Sylejmani then filed a timely petition for review in this court.
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                                  No. 16-60556
                        II. STANDARD OF REVIEW
      We review the BIA’s denial of a motion to reopen for abuse of discretion.
Lugo-Resendez v. Lynch, 831 F.3d 337, 340 (5th Cir. 2016). Though “‘highly
deferential,’” id. (quoting Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021
(5th Cir. 2014)), this standard is not a rubber stamp. We will not uphold a BIA
decision “that is capricious, irrational, utterly without foundation in the
evidence, based on legally erroneous interpretations of statutes or regulations,
or based on unexplained departures from regulations or established policies.”
Id. (internal quotation marks and citation omitted). The BIA abuses its
discretion when it fails to provide a “reasoned explanation” for its decision,
ignores or fails to fully address important aspects of an individual’s claim, or
fails to meaningfully consider relevant evidence. Tassi v. Holder, 660 F.3d 710,
719 (4th Cir. 2011); Franco-Rosendo v. Gonzales, 454 F.3d 965, 966–67 (9th
Cir. 2006); Abdel-Masieh v. INS, 73 F.3d 579, 585 (5th Cir. 1996); Diaz-
Resendez v. INS, 960 F.2d 493, 495 (5th Cir. 1992).
                              III. DISCUSSION
      “An alien ordered to leave the country has a statutory right to file
a motion to reopen his removal proceedings.” Mata v. Lynch, 135 S. Ct. 2150,
2153 (2015) (citing 8 U.S.C. § 1229a(c)(7)(A)). Subject to certain exceptions not
relevant here, a statutory motion to reopen removal proceedings must “be filed
within 90 days of the date of entry of a final administrative order of removal.”
8 U.S.C. § 1229a(c)(7)(C)(i); see also 8 C.F.R. § 1003.2(c)(2); Mata, 135 S. Ct. at
2153. A motion to reopen filed after this 90-day deadline is untimely, unless
equitable tolling is found to apply.
      In Lugo-Resendez, we held that the BIA must equitably toll the 90-day
filing period if an individual establishes: “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his
way and prevented timely filing.” 831 F.3d at 344 (internal quotation marks
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                                      No. 16-60556
and citations omitted). As we explained, “[t]he first element requires the
litigant to establish that he pursued his rights with reasonable diligence, not
maximum feasible diligence,” and “[t]he second element requires the litigant
to establish that an extraordinary circumstance beyond his control prevented
him from complying with the applicable deadline.” Id. (internal quotation
marks and citations omitted).
       In his motion to reopen, Sylejmani conceded that he had not met the 90-
day deadline but urged the BIA to apply equitable tolling. First, he argued that
the ineffective assistance provided by his two previous attorneys qualified as
an “extraordinary circumstance.” In that connection, he contended that
compliance with the “strict procedural framework” set forth by the BIA in In
re Lozada, 19 I. & N. Dec. 637 (BIA 1988), entails “a lengthy, time-consuming
process” that merits equitable tolling, particularly given “the challenges of
discovering the ineffective assistance” in the first place. 2 Second, Sylejmani
argued that he “diligently pursued his claim” by: (1) promptly seeking new
counsel after the BIA dismissed his appeal and he “realized the error of his
previous counsel”; and (2) subsequently taking steps to comply with Lozada’s
requirements by collecting the written records in his case, submitting his




       2 In Lozada, the BIA established three procedural criteria that an individual “must
satisfy before bringing a ‘motion based upon a claim of ineffective assistance of counsel.’”
Hernandez-Ortez v. Holder, 741 F.3d 644, 647 (5th Cir. 2014) (quoting Lozada, 19 I. & N. Dec.
at 639)). Lozada requires:

       (1) an affidavit by the alien setting forth the relevant facts, including the
       agreement with counsel regarding the alien’s representation; (2) evidence that
       counsel was informed of the allegations and allowed to respond, including any
       response; and (3) an indication that . . . a complaint has been lodged with the
       relevant disciplinary authorities, or an adequate explanation for the failure to
       file such a complaint.

Hernandez-Ortez, 741 F.3d at 647 (quoting Lara v. Trominski, 216 F.3d 487, 496 (5th Cir.
2000)).
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                                      No. 16-60556
allegations to both of his previous attorneys, providing them a reasonable time
to respond, and then filing a complaint with the Texas State Bar.
       We conclude that the BIA abused its discretion by denying the motion to
reopen as “untimely filed” without providing a reasoned explanation for
rejecting Sylejmani’s equitable tolling argument. The BIA’s decision does not
mention the two key elements of equitable tolling—“diligence” and
“extraordinary circumstance”—let alone meaningfully address Sylejmani’s
arguments as to why he met those elements in this particular case. See Lugo-
Resendez, 831 F.3d at 344–45 (instructing the BIA to “consider the individual
facts and circumstances of each case in determining whether equitable tolling
is appropriate” and cautioning it “not to apply the equitable tolling standard
too harshly” (internal quotation marks and citations omitted)). The decision
refers to other issues—i.e., whether further hearings on Sylejmani’s eligibility
for adjustment of status are warranted and whether Sylejmani has
demonstrated sufficient prejudice to establish the merits of his ineffective-
assistance-of-counsel claim—but it fails to explain how those considerations
are relevant to the motion’s timeliness. 3 See Ruiz-Turcios v. U.S. Att’y Gen.,
717 F.3d 847, 851 (11th Cir. 2013) (describing equitable tolling as a “threshold”
issue distinct from “the merits of the claim or claims underlying a motion to
reopen”). All we are left with, then, is the BIA’s conclusion that the motion was
“untimely filed.” We will not uphold orders based on “cursory, summary or
conclusory statements from the BIA.” Anderson v. McElroy, 953 F.2d 803, 806–



       3 In its brief, the Government makes various additional arguments that the BIA did
not rely upon in its decision. It is well established that “courts may not accept appellate
counsel’s post hoc rationalizations for agency action” and that an agency’s decision can only
be upheld “on the same basis articulated in the order by the agency itself.” Burlington Truck
Lines, Inc. v. United States, 371 U.S. 156, 168–69 (1962) (citing SEC v. Chenery Corp., 332
U.S. 194, 196 (1947)); accord Texas v. EPA, 829 F.3d 405, 425 (5th Cir. 2016); Kwon v. INS,
646 F.2d 909, 916 (5th Cir. 1981) (en banc) (courts “are not permitted to consider reasons
other than those [the BIA itself] advanced”).
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                                        No. 16-60556
07 (2d Cir. 1992); accord Rodriguez-Gutierrez v. INS, 59 F.3d 504, 508 (5th Cir.
1995) (reversing denial of motion to reopen based on BIA’s “cursory”
discussion).
       We recognize that when the BIA issued its decision, we had not yet
decided Lugo-Resendez and thus had not set forth a particular standard for
assessing equitable tolling claims. See 831 F.3d at 344–45. We therefore
remand this case to the agency so that it may apply the proper standard in the
first instance. See INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) (“[T]he
proper course, except in rare circumstances, is to remand to the agency for
additional investigation or explanation.” (internal quotation marks and
citation omitted)); Lugo-Resendez, 831 F.3d at 344.
                                   IV. CONCLUSION
       For these reasons, we GRANT the petition for review and REMAND to
the BIA for further proceedings consistent with this opinion. Sylejmani’s
motion to remand is DENIED as MOOT. 4




       4  After briefing was completed, Sylejmani filed a motion to remand this matter to the
BIA. He attached evidence to that motion showing that on January 10, 2018, USCIS approved
the I-130 petition filed in November 2014. Because we have already concluded that a remand
is warranted, Sylejmani’s motion is moot. See Valderrama-Valdez v. Lynch, 608 F. App’x 700,
701 (10th Cir. 2015) (granting petition for review, remanding to the BIA, and denying motion
for remand as moot); Torres v. Holder, 578 F. App’x 731 (9th Cir. 2014) (same). The BIA can
consider this new evidence on remand. 8 C.F.R. § 1003.1(d)(3)(iv) (authorizing the BIA to
“tak[e] administrative notice of . . . the contents of official documents”); Singh v. Lynch, 648
F. App’x 501, 506–07 (6th Cir. 2016) (concluding that BIA did not abuse its discretion when
it relied on the denial of a visa petition in support of its decision to deny a motion to reopen,
even though evidence of the denied visa was outside the record).
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