Petar B. Yusev and Katerina G. Yuseva, Petitioners,
Jeff Sessions, Attorney General of the United States, Respondent.
February 21, 2017
for Review of Orders of the Board of Immigration Appeals.
Nos. A089-070-635 & A089-070-636.
WOOD, Chief Judge, and Flaum and ROVNER, Circuit Judges.
Yusev and his wife, Katerina Yu-seva, have lived in the
United States since 2005. They managed this by overstaying
their initial one-year non-immigrant visas. On August 16,
2007, some 18 months after their initial entry, they applied
for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT). They are citizens of
Bulgaria, since 2007 a Member State of the European Union,
but they belong to its Macedonian minority and assert that
they have been persecuted on that basis. First an immigration
judge, and later the Board of Immigration Appeals (BIA or
Board), turned down their requests. The petitions for review
now before us challenge the Board's refusal to reopen
their case based on their attorney's alleged
ineffectiveness, and its refusal to reconsider the ruling on
the motion to reopen. Finding no abuse of discretion in
either of the Board's decisions, we deny the petitions
their original petitions for asylum and related relief, the
Yusevs asserted that they had been members of the United
Macedonian Organization Ilinden (UMOI), a party devoted to
the rights of ethnic Macedonians (though characterized by the
Bulgarian Constitutional Court as a separatist party that
could be, and was, banned). They testified about two
occasions on which the police assaulted them. In addition,
they asserted, the police came looking for them at their home
in 2006 and were still looking as of 2007. They also
submitted reports detailing Bulgaria's poor treatment of
Macedonians. An immigration judge (IJ) denied all relief in a
2013 decision. The judge found that they had missed the
one-year deadline for filing an asylum application, 8 U.S.C.
§ 1158(a)(2)(B), and that their tardiness was not
excused by changed circumstances in Bulgaria or other
extraordinary circumstances, id. §
1158(a)(2)(D). The judge denied their request for withholding
and CAT protection on the merits, finding that their
experiences did not meet the test for past persecution, nor
did they support a finding of likely persecution in the
future. The BIA affirmed and denied their motion for
reconsideration. See Yusev v. Lynch, 643 F.App'x
603 (7th Cir. 2016) (Yusev I).
the Yusevs were pursuing their petition for review from the
denial of their motion for reconsideration in Yusev
I, they also were proceeding along a second track.
Represented by their current counsel, Daniel Thomann, they
filed a motion with the Board to reopen the proceedings based
on their first lawyer's ineffectiveness. The Board found
the motion to reopen untimely and it rejected the argument
that counsel's ineffectiveness excused the delay. Once
again, the Yusevs filed a motion to reconsider, and once
again, that motion was denied. They have now filed two
petitions for review, one from the denial of reopening and
one from the refusal to reconsider. Our review of both these
decisions is deferential; we may grant relief only if the
Board abused its discretion. Reyes-Cornejo v.
Holder, 734 F.3d 636, 647 (7th Cir. 2013); El-Gazawy
v. Holder, 690 F.3d 852, 857 (7th Cir. 2012).
first to the Board's denial of the motion to reopen filed
by Attorney Thomann on September 1, 2015. This motion was
based on the alleged ineffectiveness of the Yusevs' prior
counsel, Alexander Vrbanoff. Non-citizens facing removal are
allowed to file one motion to reopen within 90 days of a
final order of removal. 8 U.S.C. § 1229a(c)(7)(A),
(C)(i). In the Yusevs' case, the Board affirmed the
original IJ's decision ordering removal through an order
dated April 7, 2015. Muddying the waters slightly is the fact
that this was not the Board's last word on their original
appeal. Instead, on June 17, 2015, the Board partially
reopened their case to reinstate the privilege of voluntary
departure. It did so because Vrbanoff had forgotten to submit
proof of their payment of a voluntary departure bond; they
actually had paid, and so the Board corrected its earlier
decision in this minor respect.
Yusevs argue that their 90-day period for the motion to
reopen did not begin running until June 17. If that were
true, then their motion would have been timely, as it was
filed on September 2, 2015. But that is not the way things
work. In Sarmiento v. Holder, 680 F.3d 799 (7th Cir.
2012), we joined the Fifth and Ninth Circuits in holding that
motions to reopen must be "filed within 90 days of
the specific proceeding being challenged, " which
here is the Board's April 7, 2015 order affirming the
IJ's decision to require removal. Id. at 802
(emphasis added). That is the order to which the Yusevs
object; they have no quarrel with the Board's decision to
reinstate voluntary departure on June 17. See also
El-Gazawy, 690 F.3d at 859. If the Yusevs'
proposed rule were to be adopted, we might as well write the
time limits out of the statute. Any petitioner wanting some
extra time could just file a new motion to reconsider and
have the clock reset. This is a position we cannot accept. As
we noted in Almutairi v. Holder, 722 F.3d 996 (7th
Cir. 2013), "an order from the BIA resolving everything
except an issue relating to voluntary departure"
qualifies as a final decision. Id. at 1001. The
Board thus committed no error when it concluded that the
September 2, 2015 motion to reopen was untimely.
brings us to the question whether the Board abused its
discretion in concluding that nothing excused the late
filing. In principle, equitable tolling can excuse this kind
of failure. Yuan Gao v. Mukasey, 519 F.3d 376, 377
(7th Cir. 2008). One reason that might support equitable
tolling is ineffective assistance of counsel.
El-Gazawy, 690 F.3d at 859. But this is not easy to
demonstrate in an immigration proceeding: whatever right to
effective counsel exists is present only because of the
immigration statutes, and ultimately the Due Process Clause
of the Fifth Amendment to the U.S. Constitution; the more
familiar Sixth Amendment right is inapplicable because it is
limited to criminal proceedings.
tolling based on counsel's performance requires, at a
minimum, that the petitioner show that he exercised due
diligence in seeking relief and that he suffered prejudice as
a result of the lawyer's deficient performance.
Id. The due diligence requirement is satisfied if
the petitioner can show that "he could not reasonably
have been expected to file earlier." Id.
Prejudice is established if "the error ...