Tinku Sharma v. Atty. Gen USA ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-2903
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TINKU SHARMA,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A075-875-015)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 19, 2013
Before: AMBRO, SHWARTZ and SCIRICA, Circuit Judges
(Opinion filed: December 23, 2013 )
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OPINION
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PER CURIAM
Tinku Sharma petitions for review of a decision of the Board of Immigration
Appeals. For the reasons below, we will deny the petition for review.
Sharma, a native of India, was charged as removable in November 1998 as an
alien present in the United States without being admitted or paroled and as an alien who
fraudulently sought to procure an immigration benefit. See 8 U.S.C. § 1182(a)(6)(C)(i).1
Sharma, then represented by counsel, conceded removability on the first ground but
contested the second. He applied for withholding of removal and relief under the
Convention Against Torture (CAT). After a hearing, the IJ sustained both charges of
removability. She subsequently denied Sharma’s applications for relief and ordered him
removed. In March 2002, the BIA dismissed Sharma’s counseled appeal on the ground
that Sharma failed to file a brief. It also noted that it was not persuaded that the IJ’s
resolution of the case was in error.
In April 2002, Sharma filed a counseled motion to reopen in order to seek
adjustment of status based on his marriage to a new wife, Mansi, whom he married in
December 1999, and who had just become a citizen. In March 2003, the BIA denied the
motion to reopen. It concluded that Sharma was barred from adjustment of status
because he was inadmissible based on fraud. See 8 U.S.C. § 1154(c). Thus, he could not
establish prima facie eligibility for the relief he was seeking.
Over ten years later, in May 2013, Sharma filed a second counseled motion to
reopen. He argued that his prior attorneys never informed the BIA that he was eligible
for a waiver of inadmissibility. He requested an opportunity to reinstate his initial appeal
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Sharma’s wife at the time, Wanda, had admitted that she and Sharma never lived
together and she married him so he could obtain immigration benefits. She withdrew the
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and to apply for adjustment of status. He alleged that his former attorney had been
convicted of immigration fraud and disbarred. In June 2013, the BIA denied the motion
to reopen as untimely and number-barred. Sharma sought tolling of the time and number
restrictions on the basis of ineffective assistance of counsel, but the BIA determined that
he had not complied with the requirements of In re Lozada, 19 I. & N. Dec. 637 (BIA
1988).
The BIA also determined that Sharma had not shown a prima facie case for a
waiver under 8 U.S.C. § 1182(i) in order to adjust his status. That section allows for the
Attorney General, in his discretion, to waive inadmissibility based on fraud if the refusal
of admission of the alien would result in extreme hardship to a citizen or lawful
permanent resident spouse. The BIA noted that Sharma had not submitted any evidence
to show hardship to a qualifying relative. Thus, the BIA concluded, Sharma could not
show prejudice from any ineffective assistance of counsel. Sharma filed a timely pro se
petition for review.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the denial of a
motion to reopen for abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.
2006). Under this standard, we may reverse the BIA’s decision only if it is “arbitrary,
irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).
An alien generally may file only one motion to reopen, and must file the motion “within
90 days of the date of entry of a final administrative order of removal.” 8 U.S.C.
visa petition she had filed on his behalf. 3
§ 1229a(c)(7)(C)(i). We have held that the deadline for motions to reopen may be
equitably tolled on the basis of ineffective assistance of counsel. See Mahmood v.
Gonzales, 427 F.3d 248, 251 (3d Cir. 2005). In Mahmood, we concluded that the alien’s
allegations of ineffective assistance of counsel were sufficient, if substantiated, to provide
a basis for equitable tolling but that the alien had not acted with diligence. We noted that
equitable tolling is an extraordinary remedy. Id. at 253.
In his brief, Sharma argues that he never learned of the March 2002 dismissal of
his appeal by the BIA. He contends that it would have been futile to file a complaint
against his former counsel, Jonathan St. Preux, because he had been disbarred in 2007.
However, as noted by the BIA, Sharma was represented on appeal to the BIA and on his
first motion to reopen by Pierre Eloi, who had been associated with St. Preux. Sharma
has not explained why he did not inform Eloi of the allegations against him and give him
an opportunity to respond. Lozada, 19 I. & N. Dec. at 639. Nor does Sharma explain
why he waited over ten years since the dismissal of the appeal and the denial of the first
motion to reopen to challenge prior counsel’s representation.
The BIA did not abuse its discretion in determining that Sharma’s motion to
reopen was untimely and that he failed to substantially comply with the requirements of
Lozada to establish ineffective assistance of counsel for equitable tolling. Accordingly,
we will deny the petition for review.
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