Kolodziej v. Attorney General ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-30-2008
Kolodziej v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2874
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2874
JADWIGA KOLODZIEJ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
(No. BIA-1:A73-485-484)
Immigration Judge: Hon Annie S. Garcy
Submitted Under Third Circuit LAR 34.1(a)
October 27, 2008
Before: SLOVITER, GREENBERG, Circuit Judges,
and IRENAS,* Senior District Judge
(Filed: October 30, 2008)
_____
OPINION
*
Honorable Joseph E. Irenas, Senior United States District
Judge for the District of New Jersey, sitting by designation.
SLOVITER, Circuit Judge.
Jadwiga Kolodziej petitions for review of an order of the Board of Immigration
Appeals (“BIA”), which denied her motion for reconsideration and motion to reopen
proceedings to enable her to apply for adjustment of status.
I.
Kolodziej, a native and citizen of Poland, entered the United States without
inspection in March, 1996. On November 15, 1996, she was granted voluntary departure
by an Immigration Judge (“IJ”) but failed to depart. In 2001, the employer of her
husband filed an application for employment certification to sponsor him for lawful
permanent residence, and Kolodziej subsequently filed an adjustment of status
application, but was notified on July 8, 2005 that her application for adjustment of status
was terminated, and that she must request the IJ to reopen the proceedings.
On July 22, 2005, Kolodziej filed a motion to reopen to apply for adjustment of
status as a derivative beneficiary of her husband’s approved labor certification, a motion
DHS opposed. She also sought reopening, alleging her husband’s serious medical
condition.
The IJ sua sponte reopened the proceeding on August 30, 2005, and vacated any
prior order of deportation because the Record of Proceeding was missing. The
Department of Homeland Security (“DHS”) appealed, asserting that the motion to reopen
was untimely. Kolodziej also appealed, seeking grant of her application for adjustment of
status. The BIA agreed with DHS that Kolodziej’s motion to reopen was time barred. In
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addition, the BIA stated that “[i]t is not . . . evident that [Kolodziej] is prima facie eligible
for the requested relief” because she “concedes that her spouse’s and son’s applications
for adjustment of status were not approved as the priority dates were not current.” In re
Kolodziej, 2007 WL 416711 (B.I.A. January 25, 2007). The BIA also stated that her
husband’s medical condition was “not relevant” because her case did not meet the
requirements for a motion to reopen.
Kolodziej filed a timely motion for reconsideration and another motion to reopen.
The BIA denied those motions on May 31, 2007, reasserting its prior rulings and holding
that Kolodziej failed to state any error of fact or law in the prior BIA decision.
Kolodziej filed a timely petition for review.
II.
We review the BIA’s May 31, 2007 decision to deny the motion for
reconsideration under an abuse of discretion standard. Borges v. Gonzales, 402 F.3d 398,
404 (3d Cir. 2005). A BIA decision “will not be disturbed unless . . . found to be
arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.
2004). Under 8 C.F.R. § 1003.2(c)(2), a party may file a motion to reopen “no later than
90 days after the date on which the final administrative decision was rendered in the
proceeding sought to be reopened.” It is undisputed that Kolodziej’s first motion to
reopen, filed July 22, 2005, was filed considerably after the ninety-day deadline which
was to be measured from November 15, 1996, the date she was granted voluntary
departure.
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The BIA has sua sponte authority to reopen proceedings, despite the untimeliness
of the motion, “as an extraordinary remedy reserved for truly exceptional situations.” In
re G-D-, 22 I. & N. Dec. 1132, 1134 (B.I.A. 1999). “Because the BIA retains unfettered
discretion to decline to sua sponte reopen or reconsider a deportation proceeding, this
court is without jurisdiction to review a decision declining to exercise such discretion to
reopen or reconsider [a] case.” Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.
2003). The BIA has this unfettered discretion because “[t]here are no guidelines or
standards which dictate how and when the BIA should invoke its sua sponte power.”
Luis v. INS, 196 F.3d 36, 41 (1st Cir. 1999). Accordingly, notwithstanding Kolodziej’s
argument that her husband’s medical condition is an “exceptional circumstance,” this
court does not have jurisdiction to review the BIA’s decision not to sua sponte reopen or
reconsider Kolodziej’s petition.
An alien may file only one motion to reopen removal proceedings. 8 U.S.C. §
1229a(7)(A); 8 C.F.R. § 1003.2(c)(2). As noted in the preceding statement of the facts,
Kolodziej filed two such motions. The second motion to reopen was number-barred and
no exception is applicable here.
III.
In her brief to this court, Kolodziej argues that the BIA denied her due process by
failing to apply equitable tolling due to the ineffective assistance of counsel. An
ineffective assistance of counsel claim may be considered as a due process violation if a
petitioner follows the procedural requirements set forth in Matter of Lozada. Zheng v.
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Gonzales, 422 F.3d 98, 106 (3d Cir. 2005) (citing Lozada, 19 I. & N. Dec. 637, 639
(B.I.A. 1988)). This court does not have jurisdiction to hear a Lozada claim when an
alien has not brought that claim before the BIA. 8 U.S.C. § 1252(d) (“[T]he alien [must]
exhaust[ ] all administrative remedies available to the alien as of right.”); see also
Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003). Because Kolodziej did
not raise an ineffective assistance of counsel claim, in any form, before the BIA, this
court lacks jurisdiction to hear this claim.
This court has been notified that the Attorney General is in the process of
considering the requirements of Lozada, but we have not been asked to stay disposition of
this matter. Inasmuch as Kolodziej did not bring any ineffective assistance of counsel
claim before the BIA, there is no basis for us to withhold a decision on this petition.
IV.
For the reasons set forth we will deny Kolodziej’s petition for review.
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