Gamal Ashria v. Atty Gen USA

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1084
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GAMAL AHAMED ASHRIA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A029-110-064)
Immigration Judge: Honorable Donald Ferlise
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 7, 2012
Before: JORDAN, HARDIMAN AND ALDISERT, Circuit Judges
(Opinion filed: May 10, 2012)
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OPINION
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PER CURIAM
Gamal Ahmed Ashria seeks review of the Board of Immigration Appeals’ (“BIA”
or “Board”) denial of his motion to reopen. For the reasons that follow, we will deny the
petition for review.
Ashria, a native and citizen of Sudan, entered the United States in January 1988.
The following year, he was granted conditional permanent resident status based on his
marriage to Sharon Brown. On September 3, 1993, his status was terminated because he
and his wife failed to appear together for interviews relating to their earlier application to
remove the conditional basis of his status.
That same day, the former Immigration and Naturalization Service (“INS”) served
Ashria with an Order to Show Cause and Notice of Hearing before an immigration judge
(“IJ”), charging that he was deportable under former INA § 241(a)(1)(D)(i) [8 U.S.C.
§ 1251(a)(1)(D)(i) (1994)], as his conditional status was terminated. On January 18,
1996, Ashria admitted the allegations in the Order to Show Cause and conceded
deportability. At the conclusion of an administrative hearing on May 22, 1996, the IJ
ordered Ashria removed to Sudan. 1 Ashria appealed and, on March 29, 2001, the Board
dismissed his appeal, finding that Ashria did not adequately explain why he and his wife
failed to appear jointly for interviews related to his conditional permanent resident status.
He did not appeal that determination to this Court.
On November 21, 2011, Ashria filed a motion to reopen with the BIA. In his
motion, Ashria stated that he never received notice of the Board’s 2001 decision from his
lawyer. In a December 22, 2011 decision, the BIA denied the motion to reopen as
untimely filed. The BIA determined that equitable tolling was not warranted because
1
Contrary to Ashria’s assertion, he was not ordered removed in absentia. (See
Administrative Record (“A.R.”) at 90-103.)
2
Ashria failed to comply with the requirements set forth in Matter of Lozada,
19 I. & N. Dec. 637 (BIA 1988), for bringing an ineffective assistance of counsel claim
against his former attorney. 2 See Lu v. Ashcroft, 259 F.3d 127, 129 (3d Cir. 2001)
(holding that “the Lozada requirements are a reasonable exercise of the Board’s
discretion.”). The Board further determined that even if Ashria had satisfied the Lozada
requirements, he failed to demonstrate due diligence in raising the ineffectiveness claim
in a motion to reopen. Lastly, the BIA declined to exercise its discretion to reopen the
proceedings sua sponte.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). 3 We review the denial of a
motion to reopen for an 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).
After carefully reviewing the record and Ashria’s arguments on appeal, we conclude that
the BIA did not abuse its discretion in denying the motion to reopen.
2
Lozada requires petitioners claiming ineffective assistance to: (1) provide an affidavit
attesting to the relevant facts; (2) inform former counsel of the allegations and provide an
opportunity to respond; and (3) either file a disciplinary complaint against former counsel
or explain why they have not done so. Rranci v. Att’y Gen ., 540 F.3d 165, 172 (3d Cir.
2008) (quoting Lozada, 19 I. & N. at 639).
3
To the extent that Ashria seeks review of the BIA’s March 29, 2001 decision, we lack
jurisdiction to review that decision. See INA § 242(b)(1); Stone v. INS, 514 U.S. 386,
405 (1995). Additionally, Ashria has waived consideration of the BIA’s sua-sponte-relief
decision by failing to discuss the issue in his opening brief. See Dwumaah v. Att’y Gen.,
609 F.3d 586, 589 n.3 (3d Cir. 2010). Regardless, we would be without jurisdiction to
review the BIA’s exercise of its sua sponte authority to decline to reopen the proceedings.
Pllumi v. Att’y Gen., 642 F.3d 155, 159 (3d Cir. 2011).
3
A motion to reopen removal proceedings is to 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 issued a final order of removal in March 2001, and Ashria did
not file his motion to reopen until November 2011. Ashria’s motion is clearly untimely.
The BIA has recognized, however, that the period may be equitably tolled due to
ineffective assistance of counsel, if such allegations are substantiated and accompanied
by a showing of due diligence. Alzaarir v. Att’y Gen., 639 F.3d 86, 90 (3d Cir. 2011).
As an initial matter, we disagree with the BIA that Ashria failed to satisfy the
Lozada requirements. Ashria submitted an affidavit setting forth the relevant facts of his
case and provided copies of letters that he sent to his former attorney. (A.R. at 39-47.)
Ashria also submitted an acknowledgement letter from the United States Department of
Justice informing Ashria that his allegations of attorney misconduct would be reviewed.
(Id. at 38.)
Despite that error, we conclude that the BIA did not abuse its discretion in
determining that Ashria was not diligent in pursuing his motion to reopen based on
counsel’s alleged error. See Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir. 2005);
see also Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008) (stating that alien must
demonstrate due diligence during “period of discovering counsel’s ineffectiveness” and
“period between such discovery and filing” of motion to reopen). Indeed, Ashria
acknowledged that he was aware, as early as March 2002, that counsel failed to notify
him about the outcome of his administrative appeal. (A.R. at 40.) Ashria did not explain
4
in his motion to reopen why he waited until 2011 to file a motion to reopen asserting
counsel’s alleged error. We therefore conclude that the BIA’s decision to deny reopening
as untimely was not arbitrary, irrational, or contrary to law. Sevoian, 290 F.3d at 174.
For the foregoing reasons, we will deny the petition for review.
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