                                     PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              ___________

                  No. 10-1289
                  ___________

              SHAHER ALZAARIR,
                          Petitioner

                        v.

ATTORNEY GENERAL OF THE UNITED STATES,
                                     Respondent
   ____________________________________

       Petition for Review of an Order of the
        United States Department of Justice
           Board of Immigration Appeals
             (Agency No. A95-820-824)
   Immigration Judge: Honorable Annie S. Garcy
    ____________________________________

  Submitted Pursuant to Third Circuit LAR 34.1(a)
                 February 9, 2011

        Before: RENDELL, JORDAN and
       VAN ANTWERPEN, Circuit Judges

        (Opinion filed: February 25, 2011)
Manuel F. Rios, Esq.
Rios & Cruz
811 First Avenue
Suite 200
Seattle, WA 98104
                Counsel for Petitioner

(Shelley Goad, Esq.
(Julia J. Tyler, Esq.
United States Department of Justice
Office of Immigration
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
                      Counsel for Respondent

                         ___________

                 OPINION OF THE COURT
                      ___________

PER CURIAM

      Shaher Alzaarir, a Palestinian citizen who was born in
the West Bank when it was under Jordanian control,1 entered
the United States in 2001 as a visitor. In October 2002, the

1
 Although the Notice to Appear charged Alzaarir as a native
and citizen of Jordan, and the Immigration Judge (“IJ”)
referred to him as possibly stateless, Alzaarir testified that he
is a Palestinian citizen, and both parties describe him this way
in their briefs.



                               2
Government charged Alzaarir with removability for
overstaying his visa. Alzaarir conceded the charge, and
through his attorney, Yasser Helal, he sought asylum,
withholding, and protection under the Convention Against
Torture. In September 2003, the IJ denied his applications
and ordered Alzaarir removed to Jordan. Alzaarir, still
represented by Helal, appealed to the Board of Immigration
Appeals (“BIA”). On December 27, 2004, the BIA affirmed
without opinion the IJ‟s decision. The BIA granted Alzaarir
30 days in which to depart voluntarily.

       Meanwhile, in May 2004, Alzaarir married a United
States citizen and moved to Seattle from Pennsylvania. On
advice from Helal and an attorney in Seattle, he filed Forms I-
130 (Visa Petition), I-485 (Application to Adjust Status), and
I-765 (Application for Employment Authorization). He also
faxed copies of the I-130 and I-485 forms to Helal so that he
could “close out the asylum case.” In January 2005, Alzaarir
received his work permit; around the same time, he received
notice to appear for an interview about his marriage. In
February 2005, when Helal advised him that he risked arrest
if he went to the interview, Alzaarir called the BIA‟s
automated number and learned of the BIA‟s December 2004
decision. Alzaarir and his wife went to the interview on
March 31, 2005, where the visa petition was approved.

       On March 25, 2005, Helal submitted a motion to
reopen to the BIA on Alzaarir‟s behalf. On May 17, 2005,
the BIA denied the motion for the failure to make a prima
facie showing of eligibility for relief. The BIA noted that
Alzaarir did not submit an I-485. The BIA also held that
Alzaarir was barred from adjusting his status because he did
not voluntarily depart before the deadline to do so, January




                              3
26, 2005 (and he did not file his motion to reopen before then,
either). In a footnote, the BIA noted that although Helal
submitted the motion, he did not enter an appearance, so the
BIA treated Alzaarir as proceeding pro se. The BIA mailed
the decision to an address in Brooklyn where Alzaarir lived
before moving to Pennsylvania, R. 80, although the BIA had
previously mailed a notice in the reopening proceedings to
Alzaarir‟s former Pennsylvania address, R. 109. (Alzaarir
states that he sent a letter to the BIA informing him of his
new Seattle address, but he does not describe the official
change of address form and none appears in the record from
that time period).

       In June 2005, Alzaarir received a letter ordering him to
report for removal. He then hired a new attorney, Eric Lin, to
reopen his asylum case. In his brief, Alzaarir states that Lin
worked to reopen his case “proceeding on representations
from the DHS [Department of Homeland Security] attorneys
that DHS would agree to reopening as long as the background
checks were clear.” Petitioner‟s Brief 10. However, in the
agency, Alzaarir described Lin‟s work as tenacious but
ultimately unsuccessful attempts over three years to get an
agreement to joint reopening. R. 30. Alzaarir also argued
before the agency that “evidence shows that the DHS trial
attorneys in New York agreed to the motion to reopen,
contingent on background checks being favorable.” Id.
However, the evidence provided was a December 26, 2007 e-
mail from Lin with the subject “joint motion status?” and a
message that Lin had not heard from DHS attorney David
Cheng “regarding this matter” and asking him to let him
know the reason for the delay. R. 97. Lin also stated in his e-
mail that Cheng‟s “last word on this was that you would agree
to reopen some background checks.” Id. Cheng wrote back




                              4
on December 7, 2007, apologizing for not getting back to Lin
sooner, and stating that “things with the background check
are just taking a little longer than expected.” Id. He also told
Lin, “I will stay on top of it and advise you as soon as we
have some sort of resolution.” Id.

       In May 2007, Immigration and Customs Enforcement
officers arrested Alzaarir. He was detained until he was
released under an order of supervision in August 2007.
Thereafter (in his brief, Alzaarir gives the date as August
2008, but he did not provide a date to the agency), Alzaarir
hired his present counsel to pursue the joint motion to reopen.
Counsel tried to get DHS to agree to a joint motion to reopen
until March 2009, when DHS stated that it would not join in
the motion.

        On August 10, 2009, Alzaarir, through his current
counsel, filed his second motion to reopen, alleging
ineffective assistance of Helal. Alzaarir alleged that Helal (1)
filed a deficient appeal brief with the BIA; (2) failed to file a
motion to remand based on Alzaarir‟s marriage; (3) failed to
file a motion to reopen before the end of the voluntary
departure period; (4) failed to notify Alzaarir that his agency
appeal had been dismissed; and (5) filed a deficient motion to
reopen with the BIA. Alzaarir also stated that he substantially
complied with the requirements of Matter of Lozada, 19 I. &
N. Dec. 637 (BIA 1988). He sought equitable tolling of the
time and number limitations on motions to reopen. He also
argued that the BIA should exercise its authority to reopen the
proceedings sua sponte.

     The BIA denied Alzaarir‟s motion as time- and
number-barred. The BIA held that Alzaarir failed to show




                               5
that he had acted with the reasonable diligence necessary for
an award of equitable tolling. The BIA highlighted the fact
that, in June 2005, Alzaarir learned that he had been ordered
removed, became “skeptical” of Helal‟s advice, and hired
Lin. The BIA noted that no claim of ineffective assistance
was made against Lin, who tried without success for three
years to persuade DHS to file a joint motion to reopen. The
BIA also observed that Alzaarir did not reveal when he
consulted with his current counsel. However, the BIA noted,
DHS notified counsel in March 2009 that it would not join in
a joint motion, but the motion to reopen was not filed until
August 10, 2009. The BIA also declined to reopen the
proceedings sua sponte.

       Alzaarir submits a petition for review of the BIA‟s
decision. We have jurisdiction pursuant to 8 U.S.C. §
1252(a). Review of the BIA‟s decision to deny a motion to
reopen is under a highly deferential abuse of discretion
standard.2 See Guo v. Ashcroft, 386 F. 3d 556, 562 (3d Cir.
2004). The discretionary decision is not disturbed unless it is
found to be arbitrary, irrational, or contrary to law. See id.

       We will deny the petition for review because we

2
 We do not consider the BIA‟s decision not to reopen the
proceedings sua sponte. First, it does not appear that Alzaarir
challenges that decision. Second, in any event, that decision
is a discretionary decision beyond our jurisdiction. See Calle-
Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003)
(“Because the BIA retains unfettered discretion to decline to
sua sponte reopen or reconsider a deportation proceeding, this
court is without jurisdiction to review a decision declining to
exercise such discretion to reopen or reconsider the case.”)



                              6
cannot say the BIA‟s decision was arbitrary, irrational, or
contrary to law. An alien faces number and time limitations
on filing motions to reopen. Generally, an alien may file only
one motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A) (listing
an exception not relevant here). Also, most motions to
reopen must be filed no later than 90 days after the date of the
final administrative decision. See 8 U.S.C. § 1229a(c)(7)(A);
8 C.F.R. § 1003.2(c)(2). Alzaarir presented his second motion
to reopen to the BIA more than four and a half years after the
BIA affirmed the IJ‟s order in his case.

        The time limit for filing a motion to reopen is subject
to equitable tolling, and perhaps the numerical limit is as
well. See Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.
2005); Luntungan v. Attorney Gen. of the United States, 449
F.3d 551, 557 & n.15 (3d Cir. 2006). Ineffective assistance
of counsel can serve as a basis for equitable tolling if
substantiated and accompanied by a showing of due
diligence. See Mahmood v. Gonzales, 427 F.2d 248, 252 (3d
Cir. 2005). Due diligence must be exercised over the entire
period for which tolling is desired. See Rashid v. Mukasey,
533 F.3d 127, 132 (2d Cir. 2008). “This includes both the
period of time before the ineffective assistance of counsel was
or should have been discovered and the period from that point
until the motion to reopen is filed.” Id.

       Alzaarir requested tolling because of Helal‟s alleged
ineffectiveness, which he discovered in June 2005, years
before he filed his second motion to reopen. At that point,
when he realized he had been ordered removed, he did hire
another attorney, Lin. However, Lin, against whom Alzaarir
has not made any allegations of ineffective assistance of
counsel, did not file a motion to reopen. Lin may have tried




                               7
to persuade DHS to agree to a joint motion to reopen to avoid
the time and number limitations on motions to reopen, see 8
U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(3)(iii).
However, an alien who delays filing a motion to reopen,
while awaiting DHS‟s response to his counsel‟s request to file
a joint motion to reopen, until the deadline is past generally is
not entitled to equitable tolling. See Valeriano v. Gonzales,
474 F.3d 669, 670 (9th Cir. 2007).

        Alzaarir argues in his brief that he was not merely
waiting for a response to his request like the alien in
Valeriano. He argues that he was exercising diligence
because he was relying on representations from DHS that it
would join in a motion to reopen if his background checks did
not reveal anything negative. He states that evidence in the
record supports his claim. Courts have allowed equitable
tolling of the time period for filing a motion to reopen where
the Government has misled a petitioner about what course of
action to follow. See, e.g., Socop-Gonzalez v. INS, 272 F.3d
1176 (9th Cir. 2001) (en banc). The Court of Appeals for the
Ninth Circuit also has intimated that tolling “might be
justified” where counsel for the Government tells an alien‟s
counsel who was contemplating filing a motion to reopen,
“„don‟t do anything yet, we may agree [to a joint motion],
hold off.‟” Valeriano, 474 F.3d at 674 (citing Socop-
Gonzalez). Accordingly, if the Government really made
representations that it was going to agree to a joint motion,
tolling might be appropriate even though the representations
could only be considered in evaluating the diligence of the
petitioner in this case. 3

3
 The Government asks us not to consider an argument for
tolling based on reliance because it was not presented to the



                               8
       However, despite the petitioner‟s claims, the BIA was
not presented with proof of a conditional promise of a joint
motion or evidence of the situation for which the Valeriano
court suggested tolling may be appropriate. As we described
in more detail above, Alzaarir informed the BIA that Lin
worked hard to get an agreement but was ultimately
unsuccessful. In the agency, he also stated he had evidence of
an agreement, but the evidence he presented – the e-mail
exchange between Lin and Cheng from December 2007 – did
not show that an agreement had been reached. Furthermore,
the BIA considered that even when DHS informed Alzaarir‟s
current counsel that DHS would not join a joint motion, it
was not until several months later that Alzaarir filed his
second motion to reopen.

       Given the record in this case, the BIA did not abuse its
discretion in concluding that Alzaarir did not exercise the
diligence necessary to win equitable tolling and in
consequently denying his motion to reopen. Accordingly, we
will deny the petition for review.




agency. We consider the argument only in the context it was
and is presented, namely, as support for diligence under the
circumstances.



                              9
