Michael v. Barr

United States Court of Appeals
for the Fifth Circuit

No. 19-60384

Samson Michael, also known as Samsom Weldemichael
Gebrehiwet,

Petitioner,

versus

William P. Barr, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A213 132 473

Before Graves, Costa, and Engelhardt, Circuit Judges.
Per Curiam:*
Samson Michael, a native and citizen of Eritrea, petitions for review
of the decision of the Board of Immigration Appeals (BIA) dismissing his
appeal from the Immigration Judge’s (IJ) denial of his motions to reopen and
to remand. We DENY Michael’s petition for review.

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
October 20, 2020

Lyle W. Cayce
Clerk
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I.
Michael entered the United States without valid documentation in
October 2017 and was charged with inadmissibility under 8 U.S.C. §
1182(a)(7)(A)(i)(I). Through counsel, Michael conceded the charge and
applied for asylum, withholding of removal, and relief under the Convention
Against Torture, alleging that he had deserted the Eritrean military after
being persecuted by military officers for several months based on suspected
disloyalty to the military. Following a hearing, the IJ issued a written decision
on December 15, 2017, denying Michael’s application and ordering his
removal to Eritrea. Michael was temporarily released under an order of
supervision but was re-detained in November 2018 after the Eritrean
government issued travel documents for his removal. In December 2018,
Michael hired new counsel and appealed the IJ’s decision to the BIA, which
dismissed the appeal as untimely.
On January 17, 2019, Michael filed a motion to reopen removal
proceedings with the IJ based on ineffective assistance of counsel and
changed country conditions, which was denied. Michael appealed the IJ’s
denial to the BIA and filed a motion to remand for consideration of new
evidence. The BIA dismissed the appeal and denied the motion to remand.
Michael timely petitioned this court for review of the BIA’s decision, arguing
that the BIA abused its discretion in (1) applying the equitable tolling
standard to his motion to reopen; (2) finding his motion to reopen did not
demonstrate changed country conditions; and (3) denying his motion to
remand.
II.
This court reviews the BIA’s denial of motions to reopen and remand
under a “highly deferential abuse-of-di scretion standard.” Gomez-Palacios v.
Holder, 560 F.3d 354, 358 (5th Cir. 2009); Ramchandani v. Gonzales, 434 F.3d
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337, 340 & n.6 (5th Cir. 2005). “Accordingly, this court must affirm the
BIA’s decision as long as it is not capricious, without foundation in the
evidence, or otherwise so irrational that it is arbitrary rather than the result
of any perceptible rational approach.” Gomez-Palacios, 560 F.3d at 358. This
court reviews the BIA’s factual findings for substantial evidence, and
constitutional claims and questions of law de novo. Fuentes-Pena v. Barr, 917
F.3d 827, 829 (5th Cir. 2019). This court may not overturn factual findings
“unless the evidence compels a contrary conclusion.” Gomez-Palacios, 560
F.3d at 358.
III.
An alien generally must file a motion to reopen “within 90 days of the
date of entry of a final administrative order of removal.” 8 U.S.C. §
1229a(c)(7)(C)(i). However, “[a]n immigration judge may, in her discretion,
toll the deadline to file if the alien shows ‘(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his
way and prevented timely filing.’” Mejia v. Barr, 952 F.3d 255, 259 (5th Cir.
2020) (quoting Lugo-Resendez v. Lynch, 831 F.3d 337, 344 (5th Cir. 2016)).
Michael’s motion to reopen claims that his prior counsel’s ineffective
assistance entitled him to equitable tolling between January 2018—when
prior counsel advised that Michael had no legal recourse to challenge his
removal order—and December 2018—when his current counsel advised that
he could file a motion to reopen. The BIA found that equitable tolling was
not warranted based on Michael’s failure to demonstrate diligence during
this 11-month period or that prior counsel’s ineffective assistance was an
extraordinary circumstance that prevented timely filing. Michael argues that
the BIA mis-applied the equitable tolling standard. “Because there is no
dispute as to the underlying facts, but rather only as to the application of a
legal standard to those facts, the due diligence inquiry in this case is properly
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construed as a question of law over which we have jurisdiction pursuant to [8
U.S.C.] § 1252(a)(2)(D).” Flores-Moreno v. Barr, 971 F.3d 541, 544 (5th Cir.
2020) (citing Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020)).
Further, this court has jurisdiction to review an equitable tolling claim
supported by a claim for ineffective assistance of counsel, which is a
constitutional claim presenting questions of law. Diaz v. Sessions, 894 F.3d
222, 227 (5th Cir. 2018).
Michael argues that the BIA failed to consider that his lack of diligence
resulted from his reliance on prior counsel’s deficient legal advice. However,
this explanation is undermined by Michael’s declaration in support of his
motion to reopen, which states that when prior counsel advised him in
January 2018, he was dissatisfied with the quality of prior counsel’s
representation during his asylum proceedings and did not trust prior counsel
to represent him on appeal. Further, this court recently held that the BIA did
not abuse its discretion in finding lack of diligence where the petitioner
consulted one attorney who told him his removal order could not be
challenged, and then waited three years before consulting a different attorney
who advised him of the option to file a motion to reopen. Flores-Moreno, 971
F.3d at 543-45. This court found that the BIA did not mis-apply the equitable
tolling standard by requiring the petitioner “to provide meaningful evidence
of at least some effort made during that prolonged period.” Id. at 545.
Similarly, the BIA in this case did not abuse its discretion in finding lack of
diligence based on Michael’s failure to provide any evidence of effort during
the proposed tolling period. Lugo-Resendez, 831 F.3d at 344.
Michael also claims that prior counsel’s ineffective assistance was an
extraordinary circumstance, arguing that the BIA failed to consider that his
reliance on what he understood to be competent legal advice prevented him
from consulting a second attorney and timely filing a motion to reopen. To
establish ineffective assistance of counsel, Michael must show “(1) that his
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counsel was constitutionally deficient and (2) that he is prejudiced thereby,
i.e., ‘that there was a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.’” Diaz, 894 F.3d at 228 (quoting Strickland v. Washington, 466
U.S. 668, 694 (1984)). Even assuming prior counsel was constitutionally
deficient, Michael cannot show prejudice, because evidence of his distrust
and dissatisfaction with prior counsel’s representation in January 2018 belies
his claim that prior counsel’s competent legal advice prevented him from
pursuing his rights for the next 11 months. Accordingly, the BIA did not
abuse its discretion in finding that Michael failed to show an extraordinary
circumstance. Lugo-Resendez, 831 F.3d at 344.
Finally, Michael argues that the BIA failed to consider his limited
knowledge of the English language and United States legal system. He relies
on this court’s decision in Lugo-Resendez, which directed the BIA to consider
language and legal knowledge barriers when applying the equitable tolling
standard to petitioners who file motions to reopen after their original bases
for removal are subsequently invalidated by court decisions. Id. at 345.
However, this court’s directives in Lugo-Resendez are inapplicable to this
case, because Michael’s equitable tolling argument is not premised on
changes in caselaw.
IV.
The 90-day reopening deadline does not apply if the motion relies on
changed country conditions in “the country of nationality or the country to
which removal has been ordered, if such evidence is material and was not
available and would not have been discovered or presented at the previous
proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). “Showing changed country
conditions requires making a meaningful comparison between the conditions
at the time of the removal hearing and the conditions at the time the alien
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filed her motion to reopen.” Nunez v. Sessions, 882 F.3d 499, 508 (5th Cir.
2018) (citing Ramos–Lopez v. Lynch, 823 F.3d 1024, 1026 (5th Cir. 2016)).
Michael argues that the BIA abused its discretion in finding that he
did not present evidence of changed country conditions between his asylum
hearing in December 2017 and his motion to reopen filed in January 2019. He
contends that evidence of his mother’s interrogation and arrest by Eritrean
officials as punishment for his military desertion and flight from the country
represents a material change indicating that he will face similar or worse
treatment upon removal. However, this same evidence demonstrates that his
mother was arrested sometime in January 2017, nearly a year before
Michael’s asylum hearing. Thus, the BIA did not abuse its discretion in
finding that this evidence failed to show a material change in conditions
between his asylum hearing and motion to reopen. Nunez, 882 F.3d at 508-
09.
Michael further contends that the travel documents obtained for his
removal in November 2018 demonstrate a material change because the
Eritrean government now has an affirmative record of his identity, military
desertion, and flight from the country. However, Michael’s evidence
indicates that Eritrean officials were aware of this information when his
mother was interrogated and arrested in January 2017. Accordingly, the BIA
did not abuse its discretion in finding that the travel documents did not
represent a material change in conditions between his asylum hearing and
motion to reopen. Id.
V.
A motion to remand is, in substance, a motion to reopen. Wang v.
Ashcroft, 260 F.3d 448, 451 (5th Cir. 2001). A motion to reopen must be
based on “newly discovered evidence or a change in circumstances since the
hearing.” Lugo-Resendez, 831 F.3d at 339. The motion must be based on facts
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that are “material” and “could not have been discovered or presented at the
former hearing.” 8 C.F.R. § 1003.2(c)(1); see Ogbemudia v. INS, 988 F.2d
595, 599-600 (5th Cir. 1993).
Michael’s new evidence in support of his motion to remand consisted
of a letter from his brother in Eritrea dated March 3, 2018, recounting the
details of their mother’s interrogation and arrest in January 2017. The BIA
determined that Michael did not persuasively demonstrate why the letter, or
some other form of corroborating evidence, could not have been presented at
his asylum hearing or with his motion to reopen. Although Michael argues
his brother could not have written the letter until he was permitted to take a
one-month leave from the military, he has not explained why he could not
have obtained this evidence from another source, such as a different family
member. Thus, the BIA did not abuse its discretion in finding that the
brother’s letter did not demonstrate a material change in conditions between
Michael’s asylum hearing and motion to reopen. See Nunez, 882 F.3d at 508-
09.
Accordingly, the petition for review is DENIED.
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