Alzaarir v. Attorney Gen. of The United States

• Decision Date: 25 February 2011
• Docket Number: No. 10–1289.,10–1289.
• Citation: 639 F.3d 86
• Parties: Shaher ALZAARIR, Petitionerv.ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

639 F.3d 86

Shaher ALZAARIR, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 10–1289.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit

LAR 34.1(a) Feb. 9, 2011.

Opinion filed: Feb. 25, 2011.

Manuel F. Rios, Esq., Rios & Cruz, Seattle, WA, for Petitioner.Shelley Goad, Esq., Julia J. Tyler, Esq., United States Department of Justice, Office of Immigration, Washington, DC, for Respondent.Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

Shaher Alzaarir, a Palestinian citizen who was born in the West Bank when it was under Jordanian control,¹ entered the United States in 2001 as a visitor. In October 2002, the Government charged Alzaarir with removability for overstaying his visa. Alzaarir conceded the charge, and through his attorney, Yasser Helal, he sought asylum, withholding, and protection under the Convention Against Torture. In September 2003, the IJ denied his applications and ordered Alzaarir removed to Jordan. Alzaarir, still represented by Helal, appealed to the Board of Immigration Appeals (“BIA”). On December 27, 2004, the BIA affirmed without opinion the IJ's decision. The BIA granted Alzaarir 30 days in which to depart voluntarily.

Meanwhile, in May 2004, Alzaarir married a United States citizen and moved to Seattle from Pennsylvania. On advice from Helal and an attorney in Seattle, he filed Forms I–130 (Visa Petition), I–485 (Application to Adjust Status), and I–765 (Application for Employment Authorization). He also faxed copies of the I–130 and I–485 forms to Helal so that he could “close out the asylum case.” In January 2005, Alzaarir received his work permit; around the same time, he received notice to appear for an interview about his marriage. In February 2005, when Helal advised him that he risked arrest if he went to the interview, Alzaarir called the BIA's automated number and learned of the BIA's December 2004 decision. Alzaarir and his wife went to the interview on March 31, 2005, where the visa petition was approved.

On March 25, 2005, Helal submitted a motion to reopen to the BIA on Alzaarir's behalf. On May 17, 2005, the BIA denied the motion for the failure to make a prima facie showing of eligibility for relief. The BIA noted that Alzaarir did not submit an I–485. The BIA also held that Alzaarir was barred from adjusting his status because he did not voluntarily depart before the deadline to do so, January 26, 2005 (and he did not file his motion to reopen before then, either). In a footnote, the BIA noted that although Helal submitted the motion, he did not enter an appearance, so the BIA treated Alzaarir as proceeding pro se. The BIA mailed the decision to an address in Brooklyn where Alzaarir lived before moving to Pennsylvania, R. 80, although the BIA had previously mailed a notice in the reopening proceedings to Alzaarir's former Pennsylvania address, R. 109. (Alzaarir states that he sent a letter to the BIA informing him of his new Seattle address, but he does not describe the official change of address form and none appears in the record from that time period).

In June 2005, Alzaarir received a letter ordering him to report for removal. He then hired a new attorney, Eric Lin, to reopen his asylum case. In his brief, Alzaarir states that Lin worked to reopen his case “proceeding on representations from the DHS [Department of Homeland Security] attorneys that DHS would agree to reopening as long as the background checks were clear.” Petitioner's Brief 10. However, in the agency, Alzaarir described Lin's work as tenacious but ultimately unsuccessful attempts over three years to get an agreement to joint reopening. R. 30. Alzaarir also argued before the agency that “evidence shows that the DHS trial attorneys in New York agreed to the motion to reopen, contingent on background checks being favorable.” Id. However, the evidence provided was a December 26, 2007 e-mail from Lin with the subject “joint motion status?” and a message that Lin had not heard from DHS attorney David Cheng “regarding this matter” and asking him to let him know the reason for the delay. R. 97. Lin also stated in his e-mail that Cheng's “last word on this was that you would agree to reopen some background checks.” Id. Cheng wrote back on December 7, 2007, apologizing for not getting back to Lin sooner, and stating that “things with the background check are just taking a little longer than expected.” Id. He also told Lin, “I will stay on top of it and advise you as soon as we have some sort of resolution.” Id.

In May 2007, Immigration and Customs Enforcement officers arrested Alzaarir. He was detained until he was released under an order of supervision in August 2007. Thereafter (in his brief, Alzaarir gives the date as August 2008, but he did not provide a date to the agency), Alzaarir hired his present counsel to pursue the joint motion to reopen. Counsel tried to get DHS to agree to a joint motion to reopen until March 2009, when DHS stated that it would not join in the motion.

On August 10, 2009, Alzaarir, through his current counsel, filed his second motion to reopen, alleging ineffective assistance of Helal. Alzaarir alleged that Helal (1) filed a deficient appeal brief with the BIA; (2) failed to file a motion to remand based on Alzaarir's marriage; (3) failed to file a motion to reopen before the end of the voluntary departure period; (4) failed to notify Alzaarir that his agency appeal had been dismissed; and (5) filed a deficient motion to reopen with the BIA. Alzaarir also stated that he substantially complied with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). He sought equitable tolling of the time and number limitations on motions to reopen. He also argued that the BIA should exercise its authority to reopen the proceedings sua sponte.

The BIA denied Alzaarir's motion as time- and number-barred. The BIA held that Alzaarir failed to show that he had acted with the reasonable diligence necessary for an award of equitable tolling. The BIA highlighted the fact that, in June 2005, Alzaarir learned that he had been ordered removed, became “skeptical” of Helal's advice, and hired Lin. The BIA noted that no claim of ineffective assistance was made against Lin, who tried without success for three years to persuade DHS to file a joint motion to reopen. The BIA also observed that Alzaarir did not reveal when he consulted with his current counsel. However, the BIA noted, DHS notified counsel in March 2009 that it would not join in a joint motion, but the motion to reopen was not filed until August 10, 2009. The BIA also declined to reopen the proceedings sua sponte.

Alzaarir submits a petition for review of the BIA's decision. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Review of the BIA's decision to deny a motion to reopen is under a highly deferential abuse of discretion standard.² See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). The discretionary decision is not disturbed unless it is found to be arbitrary, irrational, or contrary to law. See id.

We will deny the petition for review because we cannot say the BIA's decision was arbitrary, irrational, or contrary to law. An alien faces number and time limitations on filing motions to reopen. Generally, an alien may file only one motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A) (listing an exception not relevant here). Also, most motions to reopen must be filed no later than 90 days after the date of the final administrative decision. See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). Alzaarir presented his second motion to reopen to the BIA more than four and a half years after the BIA affirmed the IJ's order in his case.

The time limit for filing a motion to reopen is subject to equitable tolling, and perhaps the numerical limit is as well. See Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.2005); Luntungan v. Attorney Gen. of the United States, 449 F.3d 551, 557 & n. 15 (3d Cir.2006). Ineffective assistance of counsel can serve as a basis for equitable tolling if substantiated and accompanied by a showing of due diligence. See Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir.2005). Due diligence must be...