Borges v. Gonzales, 04-1835.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Citation: 402 F.3d 398
• Docket Number: No. 04-1835.,04-1835.
• Parties: Jose BORGES, Petitioner v. Alberto GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States, Respondent.
• Decision Date: 30 March 2005

402 F.3d 398 Jose BORGES, Petitioner
v.

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Alberto GONZALES,^* Attorney General of the United States, Respondent. No. 04-1835. United States Court of Appeals, Third Circuit. Argued February 8, 2005. March 30, 2005.

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Paul O'Dwyer, (Argued), New York, NY, for Petitioner.

Hillel R. Smith, (Argued), Anthony W. Norwood, Linda S. Wernery, William C. Peachey, United States Department of Justice, Office of Immigration Litigation, Ben Franklin Station, Washington, DC, for Respondent.

Before BARRY, FUENTES, and BECKER, Circuit Judges.

BARRY, Circuit Judge.

A motion to reopen a removal order issued in absentia must be filed within 180 days of the order. The primary issue before us, an issue of first impression, is whether the 180-day time limitation is mandatory and jurisdictional, or whether it is analogous to a statute of limitations and therefore can be equitably tolled. If it is the latter, we must decide whether fraud constitutes a basis for equitable tolling.

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We hold that the 180-day time limitation can be equitably tolled, and can be tolled for fraud. As such, we will remand this case to the Board of Immigration Appeals ("BIA") for it to determine whether fraud was, in fact, perpetrated on petitioner by his legal representatives and, if so, whether the time limitation was sufficiently tolled so as to render the motion to reopen timely.

I.

Jose Borges entered the United States on February 12, 1996 with a B-2 tourist visa. The then-Immigration and Naturalization Service ("INS")¹ commenced removal proceedings in August of 1997, alleging that he was an illegal overstay. Borges hired an immigration services company, Entra America ("Entra"), in January of 1998 to provide him with representation. What he was provided with, he alleges, was representation that amounted to fraud.

A. Entra and Alfred Placeres, Esq.

Adela Ivan was the owner of Entra. She told Borges that she was a paralegal, but that Borges would be represented by one of Entra's immigration attorneys, Alfred Placeres, Esq. She also told him that Placeres would file a motion seeking a change of venue from New Jersey, where the removal proceedings were pending, to New York, where Borges lived, and that Placeres would represent Borges on an adjustment of status petition based on his then-pending marriage to Jolie LaMarca, a United States citizen.

On January 20, 1998, a change of venue motion which, Placeres tells us, "we" prepared, A200, was filed by Placeres. One week later, on January 27, Borges appeared at the Immigration Court in Newark, New Jersey. No attorney accompanied him. The Immigration Judge ("IJ") denied the change of venue motion and told Borges that if he did not return on February 3, 1998, he would be deported. Borges contacted Ivan, and she allegedly told him, supposedly at Placeres's behest: (1) that Placeres would not appear in court; (2) that if Borges went to court without an attorney, he would be deported; and (3) that because Borges had a pending application for adjustment of status, he could not be deported. Borges did not attend the proceedings on February 3, 1998, and the IJ ordered him removed from the United States in absentia.

In the meantime, on January 29, 1998, Borges married Ms. LaMarca. One month later, an Immediate Relative Petition (Form I-130) and an Adjustment of Status Petition (Form I-485) were filed — again, by Placeres. The documents were not only erroneously filed with the INS in New York, and not with the Immigration Court in New Jersey,² but erroneously indicated that Borges had never been the subject of removal proceedings. Unaware of the Immigration Court's orders, the INS in New York issued Borges an employment authorization based on the pending petitions, and an adjustment of status interview, which was scheduled for February 26, 2000. Given those facts, Borges assumed that the in absentia order had been vacated.

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B. First Motion to Reopen

In April of 1998, Borges received a letter from the INS telling him to report to the Hemisphere Center in Newark for deportation to Venezuela. Borges went to the Entra office and showed the letter to Ivan, who told him that Placeres had "taken care of" the in absentia order of removal by filing the adjustment of status petition, and reassured him that Placeres would file a motion to reopen and formally vacate the in absentia order.

On April 25, 1998, a timely "Motion to Reopen and Reconsider" was filed with the Immigration Court. It sought to vacate the in absentia order solely on the ground that the motion for a change of venue had been wrongly denied; it never mentioned the pending adjustment of status petition or gave any reason for Borges's failure to appear on February 3. The IJ denied the motion and served a copy of the decision on Placeres. Borges, who was not served, believed the motion had been granted.

During the period of his representation, it does not appear that Placeres ever spoke to Borges, much less met with him.

C. Jamal Jbara, Esq.

Borges and his wife attended the adjustment of status interview in New York on February 2 or 3, 2000. They were represented by Jamal Jbara, Esq., another attorney working out of Entra. Jbara told Borges not to mention that an order of removal had issued. Borges, who believed the order had been vacated anyway, complied with that instruction. The I-130 and I-485 Petitions were granted, and Borges was approved for permanent residence.

In April 2000, Borges planned to travel to Venezuela to visit his mother, who was ill. He contacted Jbara to make sure that he would be able to re-enter the United States because he had not yet received his green card. Jbara told Borges, apparently for the first time, that the order of removal had not been vacated.

On May 10, 2000, Borges and Jbara again met with the INS officer who had conducted the adjustment of status interview. The officer voided the permanent residence stamp he had earlier placed on Borges's passport, replaced it with a stamp that said "pending Sec. 245,"³ and said he was transferring the case to New Jersey. The INS never commenced formal proceedings to rescind the approval of adjustment of status.

Also on or about May 10, 2000, Jbara agreed to file a motion with the Immigration Court to reopen the removal proceedings. He did not do so. Rather, he simply submitted a proposed joint motion to reopen to the Office of the District Counsel.⁴ From May of 2000 until the summer of 2002, when he retained a new attorney, Borges regularly called Jbara to ascertain the status of the motion to reopen, and Jbara consistently led him to believe that the motion was still under consideration by the IJ.

D. Second Motion to Reopen⁵

On January 27, 2003, Borges, represented by present counsel, Paul O'Dwyer,

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Esq., filed another motion to reopen with the Immigration Court. The motion alleged that Ivan, not Placeres, had performed all of the legal work during the critical months that Placeres was supposedly representing Borges, and that Borges had been defrauded by Placeres and Ivan into believing that a licensed and experienced attorney was representing him. According to Borges, those fraudulent representations led him to believe that he had nothing to worry about and kept him from discovering how serious his situation was and that, in fact, he remained under an in absentia order of removal. Indeed, he continued, the order of removal would not have been entered had it not been misrepresented to him that if he went to court, he would be deported. He argued that the 180-day period within which to file a motion to reopen the in absentia removal order should, therefore, be tolled until September of 2002, when he learned of the fraud. He also argued that the ineffective assistance of Placeres — and Ivan — constituted an exceptional circumstance excusing his failure to appear at his February 1998 removal hearing.

On March 10, 2003, the Immigration Court denied Borges's motion to reopen because it was untimely and because he had not complied with the three-step procedure under Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988)⁶ for raising a claim of ineffective assistance of counsel. In April of 2003, Borges filed a timely motion to reconsider, arguing that he had in fact complied with the Lozada requirements.⁷ The IJ denied the motion, finding it, too, untimely and finding that there was no reason to disturb the finding of noncompliance with Lozada. Borges appealed both decisions to the BIA.

On February 18, 2004, Borges was apprehended by officials from the DHS and was taken to a detention center in Jamaica, New York. On March 1, 2004, the BIA dismissed his appeal. The BIA determined, as relevant here, that an ineffective assistance of counsel claim does not qualify as an exception to the 180-day requirement for filing a motion to reopen, an argument Borges had not made, and determined that Borges had failed in some

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unspecified way to comply, as an initial matter, with Lozada and that this "fundamental defect" could not be remedied by his "subsequent" compliance. The BIA did not address Borges's argument that the 180-day requirement should be equitably tolled because of fraud. Finally, the BIA concluded, based on the competing affidavits of Borges and Placeres, that Placeres's denial that he told Ivan to tell Borges not to appear at the February 3 removal hearing had the "ring of truth" and, thus, that Borges had not established the prejudice component of his ineffective assistance of counsel claim. A1-2. Borges timely appealed to this Court, and on April 22, 2004, we issued a stay of removal pending appeal.⁸

II.

We have jurisdiction under 8 U.S.C. § 1252(a) (1952) (amended 1996). We review the denial of a motion to reopen under an abuse of discretion standard. Shardar v. Ashcroft, 382 F.3d 318, 324 (3d Cir.2004). The denial of a motion to reconsider is also reviewed for abuse of discretion. See INS v. Abudu, 485 U.S. 94,...