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


9-5-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4147




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-4147
                                      ___________

                                SANA JAMIL AHMED,
                                          Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                        _________________________

                        Petition for Review of an Order of the
                         United States Department of Justice
                            Board of Immigration Appeals
                               (BIA No. A97-160-045 )
                    Immigration Judge: Honorable Daniel A. Meisner
                           __________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   August 27, 2008

     Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges

                               (Filed: September 5, 2008)
                                      ___________

                               OPINION OF THE COURT
                                    ___________

PER CURIAM

              Petitioner, Sana Jamil Ahmed, petitions for review of an order of the Board

of Immigration Appeals (BIA) denying her motion to reopen removal proceedings in

order to adjust her status based on her subsequent marriage to a United States citizen. For
the following reason, we will deny the petition for review.

               A native of Saudi Arabia and citizen of Pakistan, Ahmed entered the

United States in 2001 with her mother, both as non-immigrant visitors, and overstayed.

Thereafter, the Department of Homeland Security (DHS) charged them with removal and,

in 2003, served them each with Notices to Appear (NTA). Ahmed was eighteen years old

at the time that she was served with an NTA. On behalf of herself and her daughter,

Ahmed’s mother conceded their removability, but, through counsel, applied for asylum,

withholding of removal and relief under the Convention Against Torture (CAT), or, in the

alternative, for voluntary departure.

              In 2005, the Immigration Judge (IJ) denied their applications for asylum,

withholding of removal, and CAT relief, but granted their request for voluntary departure.

They appealed the IJ’s decision, but, on July 10, 2006, the Bureau of Immigration

Appeals (BIA) summarily dismissed their appeal as conclusory and granted them

voluntary departure within sixty-days of its decision. They did not petition for review of

the BIA’s July 10 th decision.

              Ahmed remained in the United States beyond the granted period of

voluntary departure. In August 2006, she married a United States citizen, and a several

months later, her husband filed a Petition for Alien Relative (I-130) for her; Ahmed also

filed an Application to Adjust Status (I-485) based on her I-130 petition. On July 26,

2007, over a year after the BIA summarily dismissed her appeal, she filed a motion to



                                             2
reopen removal proceedings before the BIA in order to apply for adjustment of status

based on her marriage. On September 25, 2007, the BIA denied the motion to reopen as

untimely and rejected her equitable tolling claims. Through counsel, Ahmed filed the

instant petition for review.

              Our jurisdiction extends only to the BIA’s September 25, 2007 decision

denying Ahmed’s motion to reopen. 8 U.S.C. § 1252(b)(1). We review the BIA’s denial

of a motion to reopen for abuse of discretion, INS v. Doherty, 502 U.S. 314 323 (1992),

and will not disturb the decision unless it was arbitrary, irrational or contrary to law. See

Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d. Cir. 2002). “We review the BIA’s legal

determinations de novo, subject to established principles of deference, Chevron v. Nat.

Res. Def. Council, 467 U.S. 837, 844 (1984), but defer to the BIA’s factual findings

unless any reasonable adjudicator would be compelled to conclude to the contrary.” See

Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004)(internal quotation marks omitted); 8

U.S.C. 1252(b)(4)(B).

              Aside from certain exceptions, a motion to reopen must be filed within

ninety days of the BIA decision that the petitioner seeks to appeal. 8 U.S.C. §

1229a(c)(7)(C)(I). That deadline may be equitably tolled, such as by a showing of

ineffective assistance of counsel, but the petitioner must have demonstrated due diligence

in pursuing that claim. See Mahmood v. Gonzales, 427 F.3d 248, 252-53 (3d. Cir. 2005).




                                              3
              In this case, the BIA denied Ahmed’s motion to reopen because it was filed

over a year after its July 10, 2006 decision summarily dismissing her appeal and granting

her request for voluntary departure. Ahmed does not dispute the untimeliness of her

motion. Instead, Ahmed argues that she was not bound by the BIA’s order of voluntary

departure. She insists that her mother’s ultimately unsuccessful asylum application

should not be imputed onto her, because she was merely her mother’s dependent, had no

legal capacity to act on her own behalf, and was not legally informed of the consequences

of seeking voluntary departure.1 The BIA rejected that argument as a as a basis for

equitable tolling, pointing out that Ahmed was eighteen years old at the commencement

of the removal proceedings, and that she was twenty-one when the BIA rendered its last

decision denying their appeal.

              We agree that Ahmed’s argument is meritless. Ahmed’s mother identified

her as a dependent and derivative beneficiary for the purposes of the asylum application,

and the IJ explicitly treated her as such during the proceedings. Moreover, as the

government points out, Ahmed was asked twice on the record whether she approved of

her mother’s attorney representing her, and in both instances she approved without

protest. As a derivative beneficiary of her mother’s application, Ahmed would have

received the same status if her mother had been awarded asylum. See 8 U.S.C.




  1
    Ahmed presented these arguments to the BIA in her motion to reopen, but the BIA’s
equitable tolling

                                             4
§1158(b)(3)(A). Accordingly, the denial of her mother’s asylum application applied to

Ahmed as well.

              We also find no reason to disturb the BIA’s determination that Ahmed’s

claim of ineffective assistance of counsel does not entitle her to equitable tolling. To the

extent that her ineffectiveness claim rests on the arguments that the IJ disregarded her due

process right to have counsel of her own choice and that her lawyer filed a grossly

inadequate appeal which the BIA dismissed as perfunctory, she should have pursued these

claims in a timely motion for reconsideration or motion to reopen the proceedings after

the BIA issued its July 10, 2006 decision.2 Instead, Ahmed waited over a year before

filing the instant, now untimely, motion to reopen. Therefore, because we agree that

Ahmed has failed to exercise due diligence in pursuing her claim of attorney

ineffectiveness, we conclude that the BIA did not abuse its discretion in denying equitable

tolling on the basis of her attorney’s ineffectiveness. See Mahmood, 427 F.3d at 252-53.

              Finally, because Ahmed failed to depart within the sixty-day voluntary

departure period following the date of the BIA’s decision, and because she did not

exercise any of the devices then-available to her (such as timely motions to extend her

voluntary departure period or to reopen the proceedings), we agree with the BIA that

Ahmed is statutorily ineligible for adjustment of status based on her marriage for a period




  2
    We also note that she did not file a petition for review of the BIA’s July 10, 2006
decision.

                                              5
of ten years. See 8 U.S.C. § 1229c(d).

             Accordingly, we deny the petition for review.




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