                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-28-2008

Junaidi v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4702




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                      No. 06-4702
                                      __________

                                   SESAR JUNAIDI,

                                                Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                               Respondent
                                      __________

                       On Petition for Review of an Order of the
                           Board of Immigration Appeals
                             (Agency No. A72-364-197)
                        Immigration Judge: Miriam K. Mills
                                      __________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 30, 2007

                  Before: RENDELL and NYGAARD, Circuit Judges,
                           and VANASKIE * , District Judge

                               (Filed: January 28, 2008)
                                      __________

                                       OPINION
                                      __________



  *
   Honorable Thomas I. Vanaskie, United States District Judge for the Middle District of
Pennsylvania, sitting by designation.
VANASKIE, District Judge.

       Sesar Junaidi (“Junaidi”) petitions for review of the Board of Immigration

Appeals’ (“BIA”) decision denying his untimely motion to reopen removal proceedings.

Concluding that the BIA did not abuse its discretion in holding that Junaidi failed to show

that his motion should be accepted as timely under equitable tolling principles, we will

deny his petition for review.

                                             I

       Junaidi, a citizen and native of Indonesia, arrived in the United States on or about

August 21, 1990, as a nonimmigrant visitor authorized to stay no longer than six months.

Junaidi remained here after the six-month period expired and never sought

reauthorization of his stay or adjustment of his status. Since 1994, Junaidi has maintained

a relationship with Amira Fathy (“Fathy”), an Egyptian national. They were married

under Islamic law, but not under the law of the Commonwealth of Pennsylvania. They

have two United States citizen children – a son, Julian, and a daughter, Jeslyna. Only

Julian, though, was born when the removal proceedings were commenced.

       On March 31, 2003, Junaidi was issued a Notice to Appear, alleging he was

removable under § 237(a)(1)(B) of the Immigration and Nationality Act (“INA”). See 8

U.S.C. § 1227(a)(1)(B). He admitted the allegations and conceded he was removable.

Contending that his removal would work an “exceptional and extremely unusual

hardship” on his son, Junaidi applied for cancellation of removal under INA §



                                             2
240A(b)(1), 8 U.S.C. § 1229b(b)(1).1

       Junaidi retained Prior Counsel to represent him in his pursuit of cancellation of

removal. A hearing on Junaidi’s application was held October 6, 2004. Junaidi testified

that he is Julian’s primary caretaker, and that Julian will lose “confidence” in himself if

he is separated from his father. Fathy testified that Junaidi and Julian enjoy a close

emotional relationship, that Julian would be “devastated” by Junaidi’s departure, and that

he would suffer anxiety and diminished self-esteem. In addition to this testimony, Junaidi

introduced into evidence articles describing the attachment theory and the integral role

played by a father in the development of a young child. There was, however, no expert

testimony regarding the psychological impact on Julian from the separation. The lack of

such testimony was noted more than once by the Immigration Judge (“IJ”).2



  1
    In addition to showing exceptional and extremely unusual hardship to a qualifying
relative, an alien applying for cancellation of removal must show (1) that he “has been
physically present in the United States for a continuous period of not less than 10 years
immediately preceding the date of such application”; (2) that he “has been a person of
good moral character during such period”; and (3) that he has not been convicted of
certain enumerated offenses. 8 U.S.C. § 1229b(b)(1)(A)-(C). It is undisputed that
Junaidi satisfied these criteria.
  2
   The principal basis for Junaidi’s motion to reopen was the alleged ineffective
assistance of Prior Counsel in not procuring expert evidence on the psychological impact
on Julian resulting from Junaidi’s removal. Junaidi and Fathy assert that Prior Counsel
advised them that expert evidence was unnecessary. Prior Counsel, on the other hand,
maintains that she instructed them to take Julian to a therapist well before the hearing
date. Instead, Fathy produced numerous articles from the Internet on the attachment
theory and the important role played by a father in the development of a young child. As
will be explained infra, the dispute concerning Prior Counsel’s advice on the need for
expert testimony is not relevant to the timeliness of Junaidi’s motion to reopen.

                                              3
       In addition to the emotional effect on Julian resulting from Junaidi’s removal, the

IJ heard testimony about the financial impact of Junaidi’s departure and the absence of a

stable family safety net for Julian in the Pittsburgh region. During the hearing, Prior

Counsel and the IJ discussed the possibility that any separation might be short-lived

because Fathy may be able to adjust her status to that of a lawful permanent resident,

enabling Junaidi to return to the United States after a period of three years.3

       The IJ denied the application for cancellation of removal, concluding that Junaidi

had failed to prove that Julian would suffer an exceptional and extremely unusual

hardship. The IJ also was unpersuaded by Junaidi’s argument of economic hardship.

While denying the application for cancellation of removal, the IJ granted Junaidi sixty

days to depart the United States voluntarily.

       Junaidi appealed to the BIA, which affirmed the IJ’s decision in a per curiam order

issued February 3, 2006. The BIA acknowledged that Junaidi presented a “sympathetic

case,” but agreed with the IJ that he failed to show Julian would suffer exceptional and

extremely unusual hardship.

       Following this decision, Junaidi and Fathy met with Prior Counsel. Although she

was unable to represent Junaidi in any further proceedings, Prior Counsel assisted him in

securing an additional two months within which to depart. Prior Counsel advised Junaidi



  3
   Junaidi later learned that the information imparted by Prior Counsel concerning the
time required for Fathy to adjust her status was incorrect in that the process would be
more complicated and time-consuming, thereby resulting in a longer period of separation.

                                                4
about the petition for review process in the Court of Appeals and about the possibility of

filing a motion to reopen the removal proceedings. She explained the grounds available

to file a motion to reopen were limited to a change in the law or changed circumstances,

such as extreme medical emergency. Junaidi and Fathy also allege that Prior Counsel

advised them they could file a motion to reopen any time before Junaidi’s voluntary

departure. Because his time for voluntary departure had been extended to 120 days, it

was Junaidi’s understanding that he had four months from the final removal order, or

until June 3, 2006, within which to file a motion to reopen.

       Junaidi did not petition for review of the final order of removal. He did, however,

seek an opinion from another attorney as to whether he received a fair hearing and

whether he had any options. He met with this attorney in early April, 2006. She advised

him that Prior Counsel was incorrect in her statements that Fathy was eligible for

adjustment of status. Thus, the period of separation would be longer than contemplated

by Junaidi or Prior Counsel. The attorney also reviewed Junaidi’s file and concluded

there were grounds, other than change in the law or medical emergency, to support a

motion to reopen. The attorney, however, could not represent Junaidi, but agreed to help

him locate an attorney willing to represent him.

       Junaidi does not indicate what advice, if any, he received from this attorney with

respect to the deadline for moving to reopen. He does not represent, however, that she

told him he had four months within which to file such a motion.



                                             5
       Junaidi eventually secured representation by his current counsel on or about May

12, 2006, after the expiration, on May 4, 2006, of the deadline for moving to reopen.

Counsel prepared a motion to reopen premised on Prior Counsel’s alleged ineffective

assistance during the removal proceedings. Pursuant to In re Lozada, 19 I. & N. Dec. 637

(BIA 1988), counsel hand-delivered to Prior Counsel a letter setting forth the grounds for

a motion to reopen and affording her an opportunity to respond. Prior Counsel replied in

writing, contesting each alleged instance of ineffective assistance.

       Significantly, the letter delivered to Prior Counsel did not list as an instance of

ineffective assistance the alleged erroneous advice as to the time within which a motion to

reopen had to be filed. Consequently, Prior Counsel was not accorded the opportunity to

address this contention.

       On May 30, 2006, Junaidi filed with the BIA a motion to reopen his removal

proceedings. Although conceding that the motion was untimely, Junaidi argued the

ninety-day period to file such motions should be equitably tolled because of Prior

Counsel’s erroneous advice regarding the time to file a motion to reopen and because

Junaidi was unaware of the purported ineffective assistance of Prior Counsel until early

April of 2006. Moreover, Junaidi argued he exercised due diligence in pursuing the

motion and filing it less than one month after the expiration of the filing deadline.

       On October 6, 2006, the BIA denied Junaidi’s motion as untimely, finding that

equitable tolling was not warranted. The BIA also determined that, even assuming



                                              6
Junaidi’s motion was timely, his claim that Prior Counsel rendered ineffective assistance

during the removal proceedings lacked merit. Junaidi then timely filed a petition for

review in this Court.

                                              II

       We have jurisdiction under 8 U.S.C. § 1252(a)(1). We view motions to reopen

final orders of removal “with strong disfavor.” Zheng Zheng v. Gonzales, 422 F.3d 98,

106 (3d Cir. 2005). As we observed in Xu Yong Lu v. Ashcroft, 259 F.3d 127, 131 (3d

Cir. 2001), “we review the BIA's decision to deny reopening for abuse of discretion,

mindful of the ‘broad’ deference that the Supreme Court would have us afford.” “[T]he

abuse-of-discretion standard applies to motions to reopen ‘regardless of the underlying

basis of the alien's request [for relief].’” INS v. Doherty, 502 U.S. 314, 323 (1992)

(quoting INS v. Abudu, 485 U.S. 94, 99 n.3 (1988)). We will set aside the BIA’s denial

of a motion to reopen “only if it was ‘arbitrary, irrational, or contrary to law.’” Borges v.

Gonzales, 402 F.3d 398, 404 (3d Cir. 2005) (quoting Jian Lian Guo v. Ashcroft, 386 F.3d

556, 562 (3d Cir. 2004)).

       Junaidi argues that the BIA abused its discretion by refusing to equitably toll the

ninety-day period to file motions to reopen. He contends, as he did before the BIA, that

the ninety-day period should be equitably tolled for two reasons. First, Prior Counsel

rendered ineffective assistance by leading him to believe that he had four months within

which to file a motion to reopen. And second, Junaidi was unaware of the grounds for his



                                              7
motion – Prior Counsel’s ineffective assistance during the removal proceedings – until

early April, 2006.

       A claim of ineffective assistance of counsel during removal proceedings is a valid

basis for a motion to reopen removal proceedings. Xu Yong Lu, 259 F.3d at 132.

Subject to certain exceptions inapplicable here, an alien has ninety days from the date of

the final administrative decision to file a motion to reopen. 8 U.S.C. § 1229a(c)(7)(C)(i);

8 C.F.R. § 1003.2(c)(2). Equitable tolling allows a filing deadline to be extended when a

party has “been prevented from filing in a timely manner due to sufficiently inequitable

circumstances.” Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir.

1999). Equitable tolling, however, must be applied cautiously to avoid circumvention of

congressional intent in establishing filing deadlines. See Longenette v. Krusing, 322 F.3d

758, 767 (3d Cir. 2003).

       In Mahmood v. Gonzales, 427 F.3d 248, 251 & n.7 (3d Cir. 2005), we held that

equitable tolling may apply to the ninety-day period of 8 U.S.C. § 1229a(c)(7)(C)(i). We

have also recognized that fraudulent conduct or ineffective assistance of counsel can

serve as a basis for equitable tolling, i.e., can prevent the alien from filing in a timely

manner such that equity warrants tolling the limitations period. See id. at 251-52; Borges,

402 F.3d at 406. We have also held that the procedural requirements for ineffective




                                               8
assistance claims announced by the BIA in Lozada, 19 I. & N. Dec. at 639,4 apply where

equitable tolling is sought on the basis of ineffective assistance of counsel. Xu Yong Lu,

259 F.3d at 134-35.

       In this case, the BIA found it significant that Junaidi failed to inform Prior Counsel

of the alleged ineffective assistance pertaining to the filing deadline. The BIA found that,

under the circumstances, there was no adequate basis for tolling the 90-day filing

deadline. We find no abuse of discretion in this determination. In this regard, we have

sustained the BIA’s denial of a motion to reopen where the alien has failed to comply

with the procedural requirements of Lozada. See, e.g., Mudric, v. Attorney Gen., 469

F.3d 94, 100 (3d Cir. 2006); Xu Yong Lu, 259 F.3d at 134-35. Contrary to Junaidi’s

contention, an alien who seeks to rely upon ineffective assistance of counsel to toll a

filing period must satisfy the Lozada requirements with respect to that particular

ineffective assistance claim. See Adembuh v. Mukasey, No. 07-1330, 2008 WL 80162, at

*1 (4th Cir. Jan. 7, 2008) (circumstances excusing the failure to meet a filing deadline

include ineffective assistance of counsel, “‘provided that’ the alien complies with the

[Lozada] requirements”); Xu Yong Lu, 259 F.3d at 134-35 (finding that it was reasonable

for the BIA to apply Lozada where the alien sought equitable tolling based upon

counsel’s alleged failure to file an appeal).



  4
   Under Lozada, an alien must, inter alia, inform former counsel of the allegations of
ineffective assistance and afford counsel an opportunity to respond. Lozada, 19 I. & N.
Dec. at 639 .

                                                9
       That Junaidi may have satisfied the Lozada requirements as to the alleged

ineffective assistance of Prior Counsel during the removal proceedings is irrelevant to the

issue of equitable tolling. None of the alleged instances of ineffective assistance

purportedly occurring during the removal hearing precluded Junaidi from filing a motion

to reopen in a timely manner. It is not any claim of ineffective assistance that will

warrant equitable tolling; only those ineffective assistance claims that relate to the alien’s

ability to meet a filing deadline can justify equitable tolling. Cf. Adembuh, 2008 WL

80162, at *1 (“Extraordinary circumstances are events or factors directly related to the

failure to meet the 1-year deadline and may include ineffective assistance of counsel. . . .”

(quotation marks omitted)). Otherwise, the deadline for moving to reopen would be

meaningless, and the only issue would be whether the alien had acted diligently to

discover the grounds for an ineffective assistance claim. Our equitable tolling cases,

however, require a showing of both extraordinary circumstances that prevented a timely

filing and due diligence. See, e.g., Mahmood, 427 F.3d at 252 (although attorney’s

conduct, if substantiated, afforded a basis for equitable tolling, alien’s lack of due

diligence compelled denial of relief).5



  5
   The non-precedential opinions upon which Junaidi relies to argue that the period for
moving to reopen was tolled until he learned of the grounds for an ineffective assistance
claim pertaining to the conduct of the removal proceedings are distinguishable. In Nawaz
v. Attorney Gen., 165 F. App’x 193. (3d Cir. 2006), the alleged ineffective assistance of
counsel supporting the equitable tolling argument related to the timeliness of a motion to
reopen, i.e., the alien claimed that counsel had failed to inform him of the entry of an in
                                                                               (continued...)

                                              10
       In this case, Junaidi, by failing to accord Prior Counsel an opportunity to respond

to the allegation that she had misled him as to the filing deadline, foreclosed

consideration of ineffective assistance of counsel as a justification for equitable tolling.

Accordingly, the BIA did not abuse its discretion in denying the motion to reopen.

                                              III

       For the reasons stated, we will DENY Junaidi’s Petition for Review.

_________________




   (...continued)
absentia order of removal. Similarly, Zavala v. Gonzales, 213 F. App’x 594. (9th Cir.
2006), involved a claim that the alien had been fraudulently deceived into believing that a
timely filing had been made on her behalf. Junaidi has not cited, and our research has not
disclosed, any case where equitable tolling was granted on the basis of an ineffective
assistance claim that did not relate directly to the alien’s ability to comply with a filing
deadline.

                                              11
