Baljit Kaur v. Attorney General United States , 571 F. App'x 129 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-1058
___________
BALJIT KAUR,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A071-485-150)
Immigration Judge: Honorable Alberto J. Riefkohl
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 1, 2014
Before: JORDAN, COWEN and BARRY, Circuit Judges
(Filed: July 1, 2014)
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OPINION
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PER CURIAM
Baljit Kaur (“Kaur”) petitions for review of the decision of the Board of
Immigration Appeals (“Board”) denying her motion to reopen. For the reasons that
follow, we will deny the petition for review.
I.
Kaur, a citizen of India, entered the United States without inspection in 1994.
Shortly thereafter, she was served with a notice to appear charging her as removable
pursuant to former Immigration and Nationality Act (“INA”) § 241(a)(1)(B), [8 U.S.C.
§ 1251(a)(1)(B) (1994)], as an alien who entered the United States without inspection. At
her immigration hearing, Kaur conceded her removability as charged but sought asylum
and withholding of deportation. The IJ determined that she did not credibly testify as to
her political activities in India, which were the basis for her asylum claim, and he entered
an order of removal on January 19, 1998.
Kaur failed to file a timely appeal; she later filed a motion to reopen, which the IJ
denied in July 1998. Kaur appealed the IJ’s denial of her motion to reopen, but the Board
summarily dismissed her appeal in April 2002 because she had failed to file a supporting
brief. In May 2002, Kaur sought reconsideration of the Board’s April 2002 summary
dismissal. The Board denied her motion. Over the next six years, she filed three
additional motions to reopen based on changed country conditions. Each of her motions
was unsuccessful.
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In October 2013, Kaur filed a fifth motion to reopen, seeking primarily to reinstate
her appeal of the IJ’s July 1998 denial of her first motion to reopen. She claimed that her
counsel at the time had ineffectively failed to file a supporting brief, thereby resulting in
the summary dismissal of her appeal. In the alternative, she also sought to reopen the
proceedings to allow her to apply for relief under Article 3 of the Convention Against
Torture (“CAT”), which had not been incorporated into domestic law at the time of her
removal hearing. Kaur explained that she had failed to apply for CAT relief sooner
because of the ineffectiveness of prior counsel. The Board determined that Kaur had not
complied with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), for
bringing an ineffective assistance of counsel claim, and that she had not demonstrated
due diligence in pursuing that claim. Accordingly, the Board denied her motion as both
time- and number-barred. Kaur, pro se, filed a timely petition for review.
II.
We have jurisdiction under 8 U.S.C. § 1252, and we review denials of motions to
reopen under a deferential abuse of discretion standard. See Sevoian v. Ashcroft,
290 F.3d 166, 170, 174 (3d Cir. 2002). “Discretionary decisions of the [Board] will not
be disturbed unless they are found to be ‘arbitrary, irrational or contrary to law.’” Tipu v.
I.N.S., 20 F.3d 580, 582 (3d Cir. 1994). In general, motions to reopen must be filed
within 90 days from the date “on which the final administrative decision was rendered in
the proceeding sought to be reopened.” See 8 C.F.R. § 1003.2(c)(2); see also 8 U.S.C.
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§ 1229a(c)(7)(C). This time limit is subject to equitable tolling. See Borges v. Gonzales,
402 F.3d 398, 406 (3d Cir. 2005). Kaur does not dispute that her motion to reopen was
filed more than 90 days after the agency’s final decision. Rather, she argues that the
Board abused its discretion by refusing to equitably toll the 90-day time limitation for
filing a motion to reopen on the basis of the alleged ineffectiveness of counsel.
Ineffective assistance of counsel can serve as a basis for equitable tolling, but it
must be substantiated and accompanied by a showing of due diligence. See Mahmood v.
Gonzales, 427 F.3d 248, 252 (3d Cir. 2005). “Periods of unaccounted-for delay reveal a
lack of diligence.” Id. at 253. Here, Kaur claimed that her first attorney failed to file a
brief in support of her appeal of the IJ’s July 1998 order, and that her second attorney
failed to raise her ineffective assistance claim in a number of motions to reopen filed
between 2002 and 2008. Moreover, her second attorney failed to seek reopening based
on the 1999 incorporation of the CAT into domestic law. While Kaur stated that she had
filed a complaint against each attorney in September 2013 and had notified them of the
accusations, she did not provide proof of service. The Board therefore acted within its
discretion in concluding that Kaur had not demonstrated her compliance with the
procedural requirements for establishing an ineffective assistance of counsel claim. See
Lozada, 19 I. & N. Dec. at 638 (requiring that the movant submit to the Board: (1) an
affidavit “attesting to the relevant facts,” (2) a report of counsel’s response or failure to
respond to the allegations, and (3) information regarding whether a complaint has been
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filed with the appropriate disciplinary authorities). Moreover, as Kaur did not account
for the period of delay in pursuing her ineffectiveness claim between 2002 and 2013, the
Board did not abuse its discretion in concluding that Kaur had not established due
diligence.1 See Mahmood, 427 F.3d at 253.
Accordingly, we will deny the petition for review.
1
Although Kaur filed three motions to reopen between 2002 and 2008 (and the Board
improperly declined jurisdiction over two of those motions), they do not demonstrate due
diligence, as none raised a claim of ineffective assistance of counsel. Moreover, she did
nothing to pursue her ineffective assistance claims until 2013.
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