United States v. Ryan Fleming, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 23-2661
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Pablo Joaquin Dominguez Garcia
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: April 23, 2024
Filed: May 8, 2024
[Unpublished]
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Before LOKEN, SMITH, and KELLY, Circuit Judges.
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PER CURIAM.
On July 28, 2005, an Immigration Judge ordered Guatemalan citizen Pablo
Joaquin Dominguez Garcia removed in abstentia when he failed to appear at his
removal hearing. See 8 U.S.C. § 1229a(b)(5)(A); 8 C.F.R. § 1003.26(c). Over
sixteen years later, Garcia moved to reopen and rescind the in abstentia removal
order. The statute provides that an in abstentia order may only be rescinded:

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(i) upon a motion to reopen filed within 180 days after the date of the
order of removal if the alien demonstrates that the failure to appear was
because of exceptional circumstances (as defined in [8 U.S.C.
§ 1229a(e)(1)]), or
(ii) upon a motion to reopen filed at any time if the alien demonstrates
that the alien did not receive notice in accordance with [8 U.S.C.
§ 1229(a)(1) or (2)] . . . .
8 U.S.C. § 1229a(b)(5)(C); see 8 C.F.R. §§ 1003.23(b)(4)(ii), (iii)(A)A(1), (2).
Garcia petitions for review of an order of the Board of Immigration Appeals
upholding the Immigration Judge’s denial of his motion to reopen and rescind.
Garcia first argues there was no time limit on his motion to reopen under
§ 1229a(b)(5)(C)(ii) because, in July 2005, the government did not provide a “proper”
notice to appear and notice of hearing to an address that qualifies as a last known
address under 8 U.S.C. § 1229(a). We decline to address this argument, raised for the
first time in a petition for review. See Essel v. Garland, 89 F.4th 686, 691 (8th Cir.
2023) (noting that, although the exhaustion requirement is not jurisdictional, this
court will not address arguments raised for the first time in a petition for review
where proceedings before the agency were adversarial in nature and petitioner was
represented by counsel).
Second, Garcia argues that the obligation to file a motion to reopen within 180
days after the date of the in absentia order -- which otherwise applies under
§ 1229a(b)(5)(C)(i) -- should be equitably tolled by exceptional circumstances in this
case, namely, the ineffective assistance of an attorney who advised Garcia in 2006
that “his case was closed, and nothing could be done,” without telling him that an in
absentia order Garcia allegedly did not receive had been entered, or that he had
grounds for filing a motion to reopen and rescind. We have noted that “the doctrine
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of equitable tolling is ‘sparingly invoked’ for ineffective-assistance-of-counsel
claims” and have left open the question whether it applies at all to the reopening of
in absentia removal orders. See Pafe v. Holder, 615 F.3d 967, 968-69 (8th Cir.
2010). But here, the BIA considered the ineffective assistance issue on the merits and
concluded that Garcia “has not established that he was a victim of ineffective
assistance of counsel,” “did not sufficiently establish that the attorney he consulted
provided ineffective assistance,” and, by waiting over sixteen years to allege
ineffective assistance, “did not exercise due diligence in seeking to reopen his
removal proceedings.”
Upon careful review of the administrative record as a whole, we conclude the
BIA did not abuse its discretion in denying Garcia’s untimely motion to reopen and
rescind for failure to show that ineffective assistance of counsel was an “exceptional
circumstance” warranting rescission of his in absentia removal order under 8 U.S.C.
§ 1229a(b)(5)(C). See Habchy v. Gonzalez, 471 F.3d 858, 861 (8th Cir. 2006).
Accordingly, we deny the petition for review.
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