                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-1835
                                      ___________

                                ROSELINE ANDREWS,
                                               Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                      ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A077-039-385)
                     Immigration Judge: Honorable Annie S. Garcy
                      ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 March 2, 2011
       Before: AMBRO, GREENAWAY, JR. and GREENBERG, Circuit Judges

                              (Opinion filed April 15, 2011)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

       Roseline Andrews seeks review of a decision of the Board of Immigration Appeals

(“BIA”). For the reasons that follow, we will grant the petition for review, vacate the

final order of removal, and remand to the BIA for further proceedings.
                                          I.

       Petitioner Roseline Andrews, a citizen of Nigeria, entered the United States in

August 1996 as a visitor and did not timely depart. She adjusted to lawful permanent

resident (“LPR”) status in January 2000. In April 2003, Andrews attempted to enter the

United States with a cousin from Nigeria who was using her daughter’s passport.

Immigration officials charged Andrews with attempting to smuggle an alien into the

United States, and she was immediately placed in removal proceedings.

       In October 2004, the immigration judge (“IJ”) determined that Andrews was

ineligible for a waiver under 8 U.S.C. § 1182(d)(11), and ordered her removed. At that

time, Andrews was three months short of accruing the required five years of LPR status

to be eligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(1). Upon the advice

of her attorney, Andrews did not appeal. Her attorney, Frank Mazzocchi, assured her that

he would file an application for humanitarian relief instead. Over the course of the next

year, Mazzocchi mostly stopped responding to Andrews’ inquiries about her case. When

he did speak with Andrews regarding the status of her case, he told her that “the case was

filed and there had been no response from the government, which was a good sign.”

However, this was a lie—no application for humanitarian relief had been filed.

       Around December 2005, Andrews became “desperate,” and sought the advice of a

second attorney, Vladislav Sirota. Sirota suggested that Andrews file “a waiver under

Section 212” based on hardship to her American husband and children, and promised to

move to reopen Andrews’ case. After paying his retainer, Andrews attempted to follow
                                               2
up with Sirota, but he avoided her calls. Sirota apparently never took any action on

Andrews’ behalf, and, in January 2007, after she “kept calling him,” he agreed to refund

her money.

       Andrews then consulted with her third and current attorney. Within a month, in

April 2007, she filed a motion to reopen in which she argued that Mazzocchi was

ineffective for failing to delay the proceedings until she acquired the requisite five years

of permanent residence and for failing to file an appeal. The IJ denied the motion after

determining that any ineffectiveness on the part of counsel would not have prejudiced

her, as she was ineligible for cancellation in October 2004. The IJ reasoned that the

required five years of permanent residence and seven years of physical presence were cut

short by the “stop-time” rule, 8 U.S.C. § 1229b(d)(1), when she was served with the

notice to appear in November 2003. The IJ also found that Andrews failed to establish

that she directed counsel to pursue an appeal of the removal order. Finally, the IJ

concluded that Andrews’ motion to reopen was untimely, and that she had failed to

demonstrate that equitable tolling was warranted.

       Andrews did not appeal. However, in June 2007, Andrews filed a timely motion

for reconsideration. She argued that the “stop-time” rule did not cut off her LPR accrual

because the rule applies only in calculating the seven years of continuous physical

presence requirement. She also argued that she was entitled to equitable tolling of the

time to reopen.


                                              3
       The IJ denied the motion, again finding that Andrews was ineligible for

cancellation because, at the time of the original proceedings, she had not yet accrued five

years of permanent residence. The IJ also determined that Andrews failed to show that

she had acted with due diligence, and therefore, was not eligible for equitable tolling of

the time to apply for reopening.

       Andrews appealed the denial of her motion for reconsideration to the BIA. She

argued that she had diligently pursued her case and was entitled to equitable tolling. She

also claimed that but for counsel’s deficient performance, she would have been eligible

for cancellation of removal because the “stop-time” rule does not apply to the accrual of

legal permanent residence. The BIA dismissed her appeal, finding that Andrews did not

meet her burden of proof regarding due diligence. The BIA also found that even if the IJ

wrongly applied the “stop-time” rule, Andrews admitted that she had not accrued five

years of permanent residence at the time the IJ issued the removal order, and therefore,

she could not show that her attorneys were deficient for failing to apply for cancellation.

The BIA did not decide whether the commission of the offense served to stop the time of

her continuous physical presence, noting that Andrews had not raised the issue. Andrews

filed a timely petition for review.

                                             II.

       We have jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s decision

affirming the IJ’s denial of Andrews’ motion to reconsider. We review such denials for

abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). Under this
                                             4
standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary

to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). A motion to reconsider

must specify “the errors of fact or law in the [IJ’s] prior decision.” 8 C.F.R. §

1003.23(b)(2).

                                             III.

       In reviewing the BIA’s ruling on Andrews’ appeal from the denial of her motion

to reconsider, which included challenges to the IJ’s denial of her equitable tolling and

ineffective assistance of counsel claims, we must necessarily look back to the IJ’s denial

of her motion to reopen. In general, motions to reopen must be filed within ninety days

from the date “of entry of a final administrative order of removal.” 8 C.F.R. §

1003.23(b)(1); see also 8 U.S.C. § 1229a(c)(7)(C). The time limit for filing a motion to

reopen is subject to equitable tolling. See Borges, 402 F.3d at 406. Ineffective assistance

of counsel can provide a basis for equitable tolling of the time to file a motion to reopen.

Mahmood v. Gonzales, 427 F.3d 248, 250 (3d Cir. 2005). If ineffectiveness is

substantiated, a petitioner must also demonstrate that she diligently pursued her claims.

Id. at 252.

       Andrews does not dispute that her motion to reopen, filed over two years after the

removal order, was untimely. Rather, she challenges the BIA’s determination that she

was not entitled to equitable tolling of the time limit based on her claim of ineffective

assistance of counsel.


                                              5
       After the IJ issued the removal order, Mazzocchi told Andrews that it was

“useless” to file an appeal. In the next year, Andrews made contact with him only twice,

and when she did speak with him, he told her that he had filed a petition for humanitarian

relief, that her case was pending, and that it was “a good sign” that he had heard nothing

back from the government. She eventually consulted with a second attorney, Sirota, and

hired him once she realized that Mazzocchi was not acting on her behalf, despite his

assurances that she did not need to take any further action in support of her case. Sirota

also failed to pursue her case, and eventually returned her fees. We hold that Andrews

acted reasonably and diligently in relying on Mazzocchi’s representations and assurances.

Accordingly, we conclude that the BIA abused its discretion in determining that Andrews

had not diligently pursued her claims.

       The BIA held, in the alternative, that Andrews had failed to demonstrate that

Mazzocchi’s representation was deficient. We disagree. He first told her that an appeal

would be “useless.” This does not appear to be the case. Had Mazzocchi filed a timely

appeal, Andrews’ LPR time would have continued to run. In re Lok, 18 I. & N. Dec.

101, 105 (BIA 1981) (LPR status ends “when the [BIA] renders its decision in the case

upon appeal or certification or, where no appeal to the [BIA] is taken . . . or the time

allotted for appeal has expired”); see also Katsis v. INS, 997 F.2d 1067, 1075-76 (3d Cir.

1993). Had counsel filed an appeal, it is probable that she would have accrued five years

of lawful permanent residence while the BIA considered her appeal. She therefore would

have been eligible to apply for cancellation of removal. Additionally, as stated above,
                                              6
Mazzocchi never petitioned for humanitarian relief as he said he did, and he avoided

communicating with Andrews for over a year about the status of her case. When he did

speak with her, he deceived her. Accordingly, we find that counsel’s performance was

indeed deficient, and we will remand the matter to the BIA for consideration of whether

that deficient performance prejudiced Andrews. See Fadiga v. Att’y Gen., 488 F.3d 143,

157-59 (3d Cir. 2007).

                                           IV.

       Because Andrews has demonstrated that she diligently pursued her claims and that

her attorney’s representation was deficient, we will vacate the BIA’s decision and remand

the case for consideration of whether Andrews was prejudiced by her attorneys’

ineffectiveness.




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