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


5-14-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2629




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-2629


                               ALPHA OUMAR BAH,
                                           Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES


                         On Petition for Review of an Order
                        of the Board of Immigration Appeals
                              Agency No. A76 581 544
                      Immigration Judge: Donald Vincent Ferlise


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   MAY 7, 2008

            Before:   BARRY, SMITH AND HARDIMAN, Circuit Judges

                             (Opinion filed May 14, 2008)


                                      OPINION


PER CURIAM

      Alpha Oumar Bah, a citizen of Guinea, petitions for review of an order of the

Board of Immigration Appeals (BIA or Board), which denied his motion to reopen

removal proceedings. We will deny the petition.
                                              I.

       Bah entered the United States on a one-year business visa in 1989 and his wife,

Aissatou,1 joined him in 1997. They were both placed in removal proceedings in 1999.

Represented by attorney Jonathan Koutcher, they both conceded removability and applied

for asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”).

       The immigration judge (“IJ”) issued an interlocutory order denying their asylum

applications as untimely. A.R. 855-57. On August 10, 2000, the IJ denied their

applications for withholding and CAT relief, finding that they were not credible. A.R.

175-88, 853. The Bahs appealed, and, on August 6, 2003, the Board of Immigration

Appeals (“BIA”) affirmed the IJ’s decision without opinion. A.R. 849. No petition for

review was filed.

       In September 2006, Aissatou Bah was taken into custody by the Bureau of

Immigration and Customs Enforcement (“ICE”). According to Bah, this was the first

time that the Bahs discovered that they had lost their appeal. Bah retained a new lawyer

who, after contacting Koutcher (who had no records of the Bahs’ appellate proceedings),

filed a Freedom of Information Act (“FOIA”) request to obtain the record of their

proceedings before the BIA. The record disclosed that Koutcher filed a notice of appeal,

listing as the reason for the appeal the IJ’s error in determining that Bah was not eligible


   1
    The instant petition for review pertains only to Alpha Bah, although, as their
proceedings were held together, we may at times in this opinion refer to Bah’s wife.

                                              2
for an exception to the one-year filing deadline for asylum. Koutcher checked the box

indicating that a separate brief would be filed, but he did not file a brief. A.R. 163-64.

Bah, through his new attorney, filed a motion to reopen with the BIA based on

Koutcher’s ineffectiveness as well as changed circumstances in Guinea. A.R. 729-33. In

the motion, Bah admitted that the time to file a motion to reopen had expired, but argued

that the Board should exercise its authority to reopen sua sponte, because of the

ineffectiveness of his attorney. A.R. 733. Bah argued that he had met the requirements

of Matter of Lozada, 19 I & N Dec. 637 (BIA 1988),2 as modified by this Court. A.R.

732; see Fadiga v. Attorney General, 488 F.3d 142, 157 (3d Cir. 2007) (holding

complaint with state bar disciplinary committee unnecessary when prior counsel admits

and takes responsibility for errors). Bah also asserted that he had acted with due diligence

after discovering Koutcher’s negligence, and that he had filed his motion to reopen within

two and one half months of discovering the predicate facts. A.R. 730.

       The BIA denied the motion as untimely. A.R. 722. The Board noted that courts

have held that the motion to reopen period could be tolled due to fraud or deception, but

that Bah’s affidavit did not establish that his attorney had deceived him about the Board’s

dismissal of his appeal. The Board, citing Mahmood v. Gonzales, 427 F.3d 248, 252-53


   2
     Lozada sets forth a three-step procedure for establishing ineffective assistance of
counsel in immigration proceedings: (1) the alien should include an affidavit setting forth
in detail his or her agreement with the attorney and note what the attorney failed to do; (2)
the attorney should be given an opportunity to respond to the allegations; and (3) the
motion should reflect whether a complaint has been filed against the attorney with
appropriate disciplinary authorities, and if not, why not. Lozada, 19 I & N Dec. at 638.

                                              3
(3d Cir. 2005), also found that Bah failed to exercise diligence, as he brought his claims

against prior counsel more than three and one-half years after the Board’s prior decision.

       Bah filed a timely petition for review and a motion for a stay of removal. The

Government filed an opposition to the motion for a stay, and filed a motion for summary

affirmance. This Court granted the stay motion and referred the motion for summary

affirmance to this panel.

                                              II.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Our jurisdiction is limited to

a review of the BIA’s denial of Bah’s motion to reopen, as Bah did not file a timely

petition for review of the BIA’s final order of removal. See Stone v. I.N.S., 514 U.S. 386,

405-06 (1995). We review the BIA’s denial of a motion to reopen for an abuse of

discretion. Borges v. Gonzalez, 402 F.3d 398, 404 (3d Cir. 2005). Under this standard,

we will disturb the BIA’s decision only if it is arbitrary, irrational, or contrary to law. Id.

       In general, a motion to reopen removal proceedings must be filed within 90 days of

the entry of a final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i).3 This deadline,

however, may be equitably tolled by counsel’s ineffectiveness. See Mahmood v.


   3
     One exception to the time limitations is a motion to reopen based on changed country
conditions. 8 U.S.C. § 1229a(c)(7)(C)(ii). Although Bah’s motion briefly noted that
country conditions had changed, the motion did not address how these changed
conditions would affect Bah’s application for relief. The Board did not address this
aspect of the motion in its decision, and Bah does not make any claim in regards to
changed country conditions in his brief. Thus, we will not address the claim. See
F.D.I.C. v. Deglau, 207 F.3d 153, 169-70 (3d Cir. 2000) (Court will not consider claims
not raised in opening brief).

                                               4
Gonzales, 427 F.3d 248, 252 (3d Cir. 2005).4 In order to be eligible for equitable tolling,

Bah must show that he has in some extraordinary way been prevented from asserting his

rights and he has exercised reasonable diligence in investigating and bringing his claims.

See Miller v. N.J. Dep’t of Corr., 145 F.3d 616, 618-19 (3d Cir. 1998). Bah’s assertion,

if credited, that Koutcher failed to inform him of the BIA’s decision,5 despite his repeated

inquiries, would be sufficient to justify the tolling of the period of limitations. See

Mahmood, 427 F.3d at 252 (finding that attorney’s failure to notify petitioner of IJ’s

decision probably was sufficient to justify tolling). However, we agree with the Board

that Bah failed to show diligence in making his claims against Koutcher.



       Assuming, arguendo, that Bah did not learn of the Board’s initial decision until his

wife was arrested,6 he has not shown that he was diligent in checking the status of his

   4
      Bah’s motion to reopen asked the Board to exercise its discretion to reopen the
matter sua sponte. The Board may reopen a matter sua sponte at any time. 8 C.F.R.
§ 1003.2(a). We lack jurisdiction to review a decision of the BIA declining to exercise its
discretion to reopen a case. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.
2003). However, as the Board cited Mahmood, it appears that the Board construed Bah’s
motion to reopen to request that it equitably toll the time period for filing a motion to
reopen, rather than as a request to exercise its sua sponte authority to reopen. We have
jurisdiction to consider whether the Board abused its discretion in declining to equitably
toll the period. Borges, 402 F.3d at 404.
   5
     The Board’s decision states that Bah’s affidavit did “not establish that his former
attorney deceived him about the Board’s dismissal of the appeal.” A.R. 722 (emphasis
added). Although the Board found no deception, it is not clear whether the Board
credited Bah’s assertion that Koutcher failed to inform him about the decision.
   6
     A letter from Koutcher, attached to the motion to reopen at Exhibit 9, states, “I most
certainly did contact Mr. Bah following the decision from the [Board], contrary to the

                                              5
case from the time the Board issued its decision to the time his wife was arrested. The

Board’s decision is dated August 6, 2003. Bah’s affidavit states that he called Koutcher’s

office “many, many times between 2000 and 2003, the date of the BIA decision,” and that

he “continued after 2003 to call Attorney Koutcher from time to time, but was never

permitted to speak with him directly, because his secretary and paralegals would tell me

he was ‘in court’ or otherwise unavailable.” A.R. 755. Bah does not explain why he did

not attempt to determine the status of his case in some other way, perhaps by calling the

BIA, or by asking Koutcher’s secretary or paralegals whether a decision had been issued,

in the over three years following the BIA’s decision.

         Bah has not established that the BIA abused its discretion in denying his motion

based on its finding that he was not diligent.7 We will therefore deny the petition.8




statement made in paragraph #7 of Mr. Bah’s Affidavit.” A.R. 836. The letter purports
to attach a letter that Koutcher sent to Bah on August 20, 2003, “which is self-
explanatory,” but that letter is not included in the Administrative Record.
   7
     Bah argues only that the BIA erred in failing to analyze the Lozada factors. But the
BIA could only reach the merits of Bah’s ineffectiveness claim if it tolled the period of
limitations.
   8
       Respondent’s Motion for Summary Affirmance is denied as moot.




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