Abouelela v. Atty Gen USA ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-13-2005
Abouelela v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4588
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 04-4588
__________
AHMED MORSY IBRAHIM ABOUELELA,
Petitioner,
v.
ALBERTO R. GONZALES,* Attorney General,
Respondent.
__________
Petition for Review
of an order of the Board of Immigration Appeals
(Agency No. A78 829 856)
__________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 10, 2005
Before: AMBRO, VAN ANTWERPEN, and TASHIMA,** Circuit Judges
(Opinion filed: July 13, 2005)
__________
*
Alberto R. Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General, pursuant to Fed. R. App. P. 43(c)(2).
**
Honorable A. Wallace Tashima, Senior United States Circuit Judge for the
Ninth Circuit, sitting by designation.
OPINION
__________
TASHIMA, Senior Circuit Judge
Ahmed Morsy Ibrahim Abouelela (“petitioner”) petitions for review of the final
decision of the Board of Immigration Appeals (“BIA”), of November 15, 2004, which
denied his second motion to reopen. We deny the petition.
I.
Petitioner’s appeal from the final order of removal was dismissed by the BIA on
February 27, 2004. Petitioner’s first motion to reopen was denied by the BIA on May 21,
2004. We dismissed the petition for review of that order for failure to exhaust
administrative remedies. See Abouelela v. Gonzales, No. 04-2731, Order of Dismissal
(May 17, 2005). On September 23, 2004, petitioner filed a second motion to reopen with
the BIA. That motion was denied by the order of November 15, 2004. The BIA held that
the second motion was “both untimely and barred by numerical limitations for motions to
reopen.” (Citing 8 C.F.R. § 1003.2(c)(2).) The BIA noted, but rejected, petitioner’s
argument that both the time and numerical limitations should be tolled.
II.
We review the denial of a motion to reopen for abuse of discretion. Lu v. Ashcroft,
259 F.3d 127, 131 (3d Cir. 2001) (citing INS v. Abudu, 485 U.S. 94, 110 (1988)); Tipu v.
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INS, 20 F.3d 580, 582 (3d Cir. 1994).
III.
The governing regulation provides that “a party may file only one motion to reopen
. . . and that motion must be filed no later than 90 days after the date on which the final
administrative decision was rendered. . . .” 8 C.F.R. § 1003.2(c)(2). The BIA held, not
unreasonably, that petitioner’s second motion failed to meet either the numerical or time
limitation.
Petitioner contends that the BIA erred in rejecting his argument that both the 90-
day time limitation and the numerical limitation of § 1003.2(c)(2) should have been tolled
on account of his attorney’s neglect. Even assuming that exceptional circumstances
would permit tolling of either limitation, we conclude that the BIA did not abuse its
discretion in denying reopening because petitioner did “not establish that his former
attorney deceived him about the Board’s dismissal of the appeal, or denial of the first
motion to reopen, and [did] not establish when he sought out new counsel.” App. at 90;
see also Bejar v. Ashcroft, 324 F.3d 127, 131-32 (3d Cir. 2003) (affirming denial of
motion to reopen “because no exceptional circumstance is present,” in spite of
petitioner’s “allegation that she personally failed to receive notice, for it is undisputed that
her former attorney received timely notice of her removal hearing, and service upon her
attorney is considered to be legally sufficient”).
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Further, it appears, in any event, that petitioner cannot establish prejudice,
regardless of his former attorney’s performance. See Ponce-Leiva v. Ashcroft, 331 F.3d
369, 377 (3d Cir. 2003) (noting that a successful ineffective assistance of counsel claim
requires a showing of prejudice). To establish prejudice, petitioner must show that he is
eligible for adjustment of status. Under the law, however, an alien who fails to depart the
United States pursuant to an order of voluntary departure, and who has been provided
with written notice of the consequences of failing to depart, is statutorily barred from
applying for, inter alia, adjustment of status for a period of ten years. See 8 U.S.C. §
1229c(d). Petitioner was granted 30 days’ voluntary departure by the BIA’s order of
February 27, 2004. He neither departed the United States by that 30-day deadline nor
obtained a stay or extension of that departure date. Thus, petitioner, being ineligible to
apply for adjustment of status, cannot demonstrate that he was prejudiced by his
attorney’s failure to apply for adjustment of status.
IV.
For the foregoing reasons, we conclude that the BIA did not abuse its discretion in
denying petitioner’s second motion to reopen. The petition for review is DENIED.
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