United States Court of Appeals For the First Circuit No. 18-1522 ADOLFO FRANCO-ARDON, Petitioner, v. WILLIAM P. BARR, ATTORNEY GENERAL, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Lynch, Thompson, and Barron, Circuit Judges. Randy Olen on brief for petitioner. Laura Halliday Hickein, Trial Attorney, Joseph H. Hunt, Assistant Attorney General, Shelley R. Goad, Assistant Director, Office of Immigration Litigation, U.S. Department of Justice, on brief for respondent. April 26, 2019 Pursuant to Fed. R. App. P. 43(c)(2), Attorney General William P. Barr has been substituted for former Acting Attorney General Matthew G. Whitaker as the respondent. BARRON, Circuit Judge. Adolfo Franco-Ardon ("Franco- Ardon"), a Guatemalan citizen, petitions for review of the Board of Immigration Appeals' ("BIA") denial of his motion to reopen his 2012 order of removal. Franco-Ardon based that motion on his prior counsel's alleged ineffective assistance of counsel in failing to file a brief with this Court in his petition for review of the BIA's denial of his earlier challenge to that removal order. We deny the petition. I. Franco-Ardon's petition arises from the following set of circumstances. On January 18, 2012, the BIA affirmed the Immigration Judge's (IJ) decision ordering his removal and denying his request for asylum, withholding of removal, and protection under the Convention Against Torture. Franco-Ardon then petitioned for review of the BIA's ruling to our Court in Franco- Ardon v. Holder, C.A. No. 12-1214. We dismissed the petition on October 23, 2012. We did so on the ground that Franco-Ardon had failed to file a brief pursuant to Local Rules 45.0(a) and 3.0(b). Franco-Ardon thereafter made a number of applications for a stay of removal to this Court, the last of which we denied in August of 2017 and thus many years after he had filed his petition for review of the BIA's ruling affirming his order of removal. Franco-Ardon then retained new counsel, who investigated the reasons for our dismissal of Franco-Ardon's 2012 petition for - 2 - review. That counsel informed Franco-Ardon that his petition for review had been dismissed due to his former counsel's failure to file a brief to our Court. In the wake of having been so informed, on January 10, 2018, Franco-Ardon filed a motion to reopen with the BIA. He did so on the ground that his prior counsel had provided him with ineffective assistance of counsel by failing to file the opening brief before this Court in his petition for review. The BIA denied the motion to reopen on May 18, 2018. The BIA concluded that Franco-Ardon had failed to establish either the requisite due diligence to excuse his failure to comply with the 90-day filing deadline for motions to reopen, see 8 U.S.C. § 1229a(c)(7)(C)(i), or a "likelihood of success" regarding his ineffective assistance of counsel claim "based on prevailing First Circuit precedent" which the BIA did not specify. Franco-Ardon now petitions from the BIA's denial of his motion to reopen. II. The government contends that ...
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