Sharif v. Attorney General

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
7-12-2007
Sharif v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2800
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"Sharif v. Atty Gen USA" (2007). 2007 Decisions. Paper 778.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 06-2800
KHALID SHARIF,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order
of the Board of Immigration Appeals
(No. A73-533-106)
Immigration Judge: Hon. Daniel Meisner
Submitted Under Third Circuit LAR 34.1(a)
July 9, 2007
Before: SLOVITER, HARDIMAN, and ROTH, Circuit Judges
(Filed: July 12, 2007)
OPINION
SLOVITER, Circuit Judge.
Khalid Sharif petitions for review of the decision by the Board of Immigration
Appeals (“BIA”) denying his motion for reconsideration of its order denying Sharif’s
appeal of the Immigration Judge’s denial of his motion to reopen the proceedings leading
to his in absentia removal order.
I.
Sharif is a native and citizen of Pakistan who entered the United States at New
York, New York on July 2, 1992 on a nonimmigrant visa set to expire in July 1993. On
April 6, 1995, the Immigration and Naturalization Service (“INS”) issued an Order to
Show Cause, charging Sharif with being removable based on his presence in the United
States beyond the expiration of his visa. On September 21, 1995, Sharif appeared before
the Immigration Judge (“IJ”) and admitted the allegation in the Order to Show Cause and
the charge of overstaying his visa. At the hearing, he requested asylum based on the
application that he had filed on December 23, 1994. The asylum hearing was scheduled
for October 24, 1995.
On October 22, 1995 Sharif’s mother died. Sharif’s counsel, Gary Jodha, advised
him that he need not appear at the hearing and that Jodha would ask for a continuance.
However, neither Sharif nor Jodha appeared before the IJ on October 24, 1995. As a
result, the IJ ordered Sharif removed in absentia.
On or about October 8, 1998, Sharif retained Attorney Maqsood Mir who advised
him that the IJ had entered a final order of deportation on October 24, 1995, which notice
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Sharif maintains he never received. Sharif claims that Mir also told him that he would
file a motion to reopen on Sharif’s behalf. Although Mir entered an appearance, he did
not file the motion to reopen. It was not until Sharif was apprehended by agents of the
Bureau of Immigration and Customs Enforcement (“ICE”) in 2005 that he learned that
Mir had failed to file the motion.
On October 26, 2005, Sharif filed a motion to reopen his 1995 deportation
proceedings. On November 18, 2005, the IJ denied the motion on the basis that Sharif
was not eligible for equitable tolling on his claim of fraudulent representation by counsel
and that Sharif had failed to exercise due diligence. On December 15, 2005, Sharif filed a
timely notice of appeal with the BIA.
The BIA adopted and affirmed the decision of the IJ. The BIA noted that if
Sharif’s allegations were true, he would appear to have a successful ineffective assistance
of counsel claim based on Jodha’s misrepresentations. However, the BIA held that
equitable tolling was not available because Sharif made no inquiries as to the status of his
case between 1995 and 1998, that is, Sharif had failed to show due diligence. Sharif
subsequently filed a motion to reconsider which the BIA denied. Sharif then timely filed
this petition for review.
II.
Where the BIA adopts and affirms the decision of the IJ, as well as provides its
own reasoning for its decision, we review both the decisions of the IJ and the BIA. He
Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We review the BIA’s denial of
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reconsideration, as well as the denial of the underlying motion to reopen, for abuse of
discretion. See Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005); Ezeagwuna v.
Ashcroft, 325 F.3d 396, 409 (3d Cir. 2003). We review the IJ’s and BIA’s legal
conclusions de novo, “with appropriate deference to the agency’s interpretation of the
underlying statute in accordance with administrative law principles.” Mahmood v.
Gonzales, 427 F.3d 248, 250 (3d Cir. 2005). We review the IJ’s and BIA’s findings of
fact according to the substantial evidence standard. Dia v. Ashcroft, 353 F.3d 228, 247-
48 (3d Cir. 2003) (en banc).
Sharif makes two arguments. First, he argues that the BIA abused its discretion in
denying reconsideration of its decision refusing to equitably toll the time limit for Sharif’s
October 26, 2005 motion to reopen. Second, he argues that the BIA abused its discretion
and effected a deprivation of his Fifth Amendment right to due process by denying his
motion to reopen.
An alien has 180 days after the entry of an in absentia order of removal to file a
motion to reopen that attempts to demonstrate that the failure to appear was due to
exceptional circumstances. 8 U.S.C. § 1229a(b)(5)(C)(i). In Borges, in considering
whether the alien had been defrauded by an attorney and the attorney’s paralegal, we held
that the 180-day deadline is “appropriately considered as analogous to a statute of
limitations and, thus, subject to equitable tolling.” 402 F.3d at 406. However,
“[e]quitable tolling is an extraordinary remedy which should be extended only sparingly.”
Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005). As such, the courts of appeals
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have held that in making out a claim for equitable tolling the alien must demonstrate that
s/he acted with due diligence in pursuing his or her claim. See Mahmood, 427 F.3d at
252; Borges, 402 F.3d at 407; Iavorski v. INS, 232 F.3d 124, 134-35 (2d Cir. 2000);
Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir. 1999).
In Mahmood, we stated that although the “attorney conduct at issue is sufficient, if
substantiated, to provide a basis for equitable tolling, Mahmood’s claims still fail for lack
of diligence.” 427 F.3d at 252. We noted that despite Mahmood’s “suggestion that he
was unaware of the denial of the second motion until December 2000, when he received
[a] ‘bag and baggage’ letter, there is no indication in the record that Mahmood took any
steps to inquire about the status of his case during the more than eighteen months that
passed between the denial of his motion and the time that he received the letter . . . .” Id.Further, there was a second period that passed without any showing of due diligence.
Mahmood waited more than a year after the BIA dismissed his untimely appeal in June
2001, to file another motion to reopen in July 2002. Id. Mahmood’s failures to pursue
his case with diligence led us to state that it was “clear as a matter of law” that the
“periods of unaccounted-for delay reveal a lack of diligence . . . .” Id. at 253.
Sharif demonstrated far less diligence in pursuing his case than did Mahmood.
Sharif acknowledged that he was aware of the October 1995 hearing date, and stated that
he believed that Jodha had asked for a continuance. However, Sharif made no attempt to
follow up on the status of his case for more than three years. He eventually was advised
of his status only after contacting Mir because he mistakenly thought he had won a visa in
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the diversity lottery.
Similar to the circumstances in Mahmood, Sharif also failed a second time to
exercise due diligence. After contacting Mir in 1998 and being informed by Mir that an
in absentia removal order had been entered in 1995, Sharif instructed Mir to file a motion
to reopen. However, it was not until he was apprehended in September 2005 that he
learned that Mir had failed to file the motion to reopen. He took no action between 1998
and October 26, 2005.
Given the facts outlined above and our holding in Mahmood, it is clear that Sharif
failed to exercise due diligence as a matter of law. He therefore is not entitled to the
extraordinary remedy of equitable tolling.
Sharif also contends that he was denied his Fifth Amendment right to due process
because he did not have a hearing in his case. It is clear that Sharif has a Fifth
Amendment right to due process. However, there was a scheduled hearing and Sharif
concedes that he received notice of the hearing but failed to attend. Under these
circumstances, there was no constitutional deprivation. The government acted consistent
with the procedures that the Fifth Amendment requires, and Sharif’s claim is therefore
without merit.
III.
We will deny the petition for review.
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