                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-5-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3228




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-3228


                               ANA LARRAHONDO,

                                                    Petitioner

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                                    Respondent




                          On Petition for Review of an Order
                         of the Board of Immigration Appeals
                                (BIA No. A77-027-660)



                   Submitted pursuant to Third Circuit LAR 34.1(a)
                                September 12, 2006

              Before: FUENTES, FISHER, and BRIGHT,* Circuit Judges.


                               (Filed October 5, 2006)




      *
        The Honorable Myron H. Bright, Senior Judge, United States Court of Appeals
for the Eighth Circuit, sitting by designation.
                              OPINION OF THE COURT


FUENTES, Circuit Judge.

      Ana Larrahondo petitions for review of a decision of the Board of Immigration

Appeals (“BIA”) denying her motion to reconsider its denial of several motions to reopen

her removal proceeding. For the reasons set forth below, we will deny her petition.



I.    Background

      Ana Larrahondo is a 37-year old citizen of Colombia who entered the United

States as a visitor for pleasure. Larrahondo was served with a Notice to Appear before an

immigration judge (“IJ”) on October 14, 1998, and obtained representation from Maria

Ines Gonzalez (“Counsel One”). At Counsel One’s request, the removal hearing was

postponed until October 22, 1998. On that date, however, neither Larrahondo nor

Counsel One appeared. According to Larrahondo, an employee of Counsel One had

instructed her not to appear because Counsel One had “fallen ill.” At the October 22

proceeding, the IJ ordered Larrahondo removed in absentia.

      On January 12, 1999, Counsel One moved to reopen Larrahondo’s immigration

proceeding before the IJ. On February 5, 1999, the IJ denied the motion to reopen,

because Larrahondo had not complied with the requirements of Matter of Lozada, 19 I. &



                                           -2-
N. Dec. 637 (BIA 1988),1 nor did she present “exceptional circumstances” warranting

reopening. See 8 U.S.C. § 1229a(e)(1). Counsel One filed a timely notice of appeal to

the BIA, but on June 3, 2002, the BIA summarily affirmed the IJ’s denial of her motion to

reopen (“first motion to reopen”). This decision was not appealed.

       After being detained because of the outstanding order of removal, Larrahondo

obtained new counsel (“Counsel Two”). Counsel Two filed a motion to reopen

(“withdrawn motion”), detailing how Larrahondo was misled by Counsel One’s

employee. Unfortunately, this motion was filed with the wrong IJ and was subsequently

withdrawn. Larrahondo then obtained third counsel (“Counsel Three”). Counsel Three

filed another motion to reopen (“third motion to reopen”) on February 22, 2005, alleging

ineffective assistance of counsel (i.e., the ineffective assistance of Counsel One). The

government did not respond to this motion, but on April 7, 2005, the BIA denied the third

motion to reopen, finding “no good reason” for the two-and-a-half year delay between its

denial of Larrahondo’s first motion to reopen and the filing of her third motion to reopen.

The BIA noted that Larrahondo did not comply with the requirements of Matter of

Lozada. Larrahondo did not appeal this BIA decision; instead, she hired present counsel

(“Counsel Four”), who filed a motion with the BIA to reconsider its April 7 denial of her


       1
        of aggrieved alien’s attesting to relevant facts; (2) former counsel must be
informed of allegations and allowed an opportunity to respond, which response should be
submitted with the motion; and (3) if it is asserted that former counsel’s handling of the
case involved a violation of ethical or legal responsibilities, the motion should reflect
whether a complaint has been filed. Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005)
(citing Lozada, 19 I. & N. Dec. at 639).

                                            -3-
third motion to reopen. On June 3, 2005, the BIA denied Larrahondo’s motion to

reconsider, finding again that Larrahondo did not adequately explain the lateness of her

motion.

       On June 27, 2005, Larrahondo filed a petition for review in this Court. Before us

she argues that the ineffective assistance of Counsel One warrants reopening her removal

proceeding. Specifically, she contends that the misrepresentation of Counsel One’s

employee resulted in the contested order of removal in absentia, as well as her continuing

failure to file a timely motion to reopen.2



II.    Discussion

       This Court has jurisdiction under 8 U.S.C. § 1252, which provides for judicial

review of final orders of removal. The Court reviews the BIA’s denial of a motion to

reopen for abuse of discretion. Shardar v. Ashcroft, 382 F.3d 318, 324 (3d Cir. 2004).

Accordingly, its decision will be upheld unless it is “arbitrary, irrational, or contrary to

law.” Caushi v. Attorney General, 436 F.3d 220, 226 (3d Cir. 2006) (quoting Sevoian v.

Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).

       A motion to reopen a proceeding based on ineffective assistance of counsel is

governed by the requirements set out in Matter of Lozada, 19 I. & N. Dec. 637 (BIA


       2
        Larrahondo seems to concede that all her motions to reopen for ineffective
assistance of counsel failed to comply with the requirements of Matter of Lozada, 19 I. &
N. Dec. 637 (BIA 1988) until her motion to reconsider which complied with Lozada’s
requirements.

                                              -4-
1988). See Luntungan v. Attorney General, 449 F.3d 551, 554 (3d Cir. 2005). Moreover,

petitioner is entitled to only one motion to reopen an order of removal. 8 U.S.C. §

1229a(c)(7); see Luntungan, 449 F.3d at 557. Nevertheless, the filing requirements of a

motion to reopen can be tolled for fraud, particularly in the case of misrepresentation by

an alien’s legal representative. See Borges v. Gonzales, 402 F.3d 398, 406-07 (3d Cir.

2005).

         In this case, Larrahondo alleges that the misrepresentation of Counsel One caused

her ongoing failure to file proper motions to reopen. She relies on Lopez v. INS, 184

F.3d 1097 (9th Cir. 1999) to argue that the period for filing her motions to reopen should

be tolled because of the misrepresentation of Counsel One’s employee. Indeed, the

principle in Lopez relied on by Larrahondo has been applied in this Circuit. See Borges,

402 F.3d at 405, 406-07. Nevertheless, while we sympathize with the difficulty

Larrahondo has had, we find Lopez and Borges inapplicable here. It seems to us that any

misrepresentation on the part of Counsel One’s employee—whether it was a single

misrepresentation or ongoing—3 is insufficient to account for Larrahondo’s repeated

failure to file proper motions with separate attorneys.

         We will assume that Larrahonodo’s failure to appear at her removal proceeding on


         3
        We note that the Court in Borges explained: “[c]oncluding, as we do, that tolling
may be appropriate where there is fraud is not the same, however, as concluding that
fraud has been shown. A finding of fraud is a factual determination to be made by the
BIA in the first instance.” Borges, 402 F.3d at 406-07. Accordingly, we do not express a
view of what fraud there has been—only of whether, assuming the fraud alleged by
Larrahondo, the BIA abused its discretion in denying her motion.

                                             -5-
October 22, 1998 resulted from misrepresentations by Counsel One’s employee.

Nevertheless, it is clear that Counsel One attempted to correct this error by filing a timely

motion to reopen with the IJ and a timely appeal to the BIA. Instead of appealing these

denials to this Court, Larrahondo filed successive motions to reopen, each with new

counsel. Even though Larrahondo’s original counsel might have misled her, these

subsequent motions to reopen—which were either deficient under Lozada, filed with the

wrong IJ, or untimely—cannot be explained by that misrepresentation. It does not appear

to us that this misrepresentation can be attributed to all of Larrahondo’s subsequent

attorneys, thereby excusing her repeated failure to file a proper motion to reopen. It

might have excused an untimely first motion to reopen, but it does not excuse

Larrahondo’s repeated failure to file properly. We will not simply extend the ineffective

assistance of Counsel One to each subsequent attorney who filed motions on her behalf.

       Given this background, we conclude that the BIA’s final rejection of Larrahondo’s

motion to reconsider was not an abuse of discretion. Accordingly, we will deny

Larrahondo’s petition.




                                             -6-
