                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-11-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4764




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                                                 NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                      No. 06-4764
                     ____________

                      BAO CHEN,

                                            Petitioner,

                            v.

    ATTORNEY GENERAL OF THE UNITED STATES,

                                            Respondent.

                     ____________

             On Petition for Review from an
        Order of the Board of Immigration Appeals
                (Board No. A78-745-618)
      Immigration Judge: Honorable Donald V. Ferlise
                      ____________

        Submitted Under Third Circuit LAR 34.1(a)
                   December 11, 2007

Before: McKEE, CHAGARES and HARDIMAN, Circuit Judges.

               (Filed: December 11, 2007)

                     ____________

               OPINION OF THE COURT
                    ____________
HARDIMAN, Circuit Judge.

       Petitioner Bao Chen appeals an order of the Board of Immigration Appeals (BIA)

denying his motion to reopen his removal proceedings. Because Chen’s motion was

untimely, we will deny the petition for review.

                                             I.

       A native and citizen of the People’s Republic of China, Chen illegally entered the

United States on or about October 21, 2000. He was apprehended and placed into

removal proceedings at which he petitioned for asylum, withholding of removal, and

protection under the Convention Against Torture. Immigration Judge (IJ) William Van

Wyke denied Chen’s petition and ordered him removed to China on February 13, 2002.

Chen’s former attorney filed an appeal of the IJ’s order, which the BIA rejected as

untimely on June 21, 2002. Then, unbeknownst to Chen, his former counsel filed a

motion to reconsider the BIA’s June 21 dismissal. The BIA denied this motion in a per

curiam order dated December 2, 2002.

       Several years later, Chen obtained new counsel and filed a complaint against his

former counsel with the Pennsylvania Supreme Court on March 29, 2005. He also filed a

motion to reopen his immigration proceedings in early April 2005, claiming that the

ineffective assistance of his prior counsel caused his appeal of the IJ’s removal order to

be time-barred. Immigration Judge Donald V. Ferlise dismissed Chen’s motion for lack

of jurisdiction, but the BIA reversed and remanded for a decision on the merits. On

remand, the IJ denied Chen’s motion, and the BIA affirmed, finding “no clear error” in

                                             2
the IJ’s determination that Chen’s motion to reopen was untimely. Chen now appeals the

BIA’s affirmance.

                                             II.

       We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252(a). See

Stone v. INS, 514 U.S. 386, 398 (1995). We review the BIA’s denial of a motion to

reopen immigration proceedings for an abuse of discretion. Lu v. Ashcroft, 259 F.3d 127,

131 (3d Cir. 2001). Unless the BIA’s decision was “arbitrary, irrational, or contrary to

law,” it will be upheld. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002); Tipu v.

INS, 20 F.3d 580, 582 (3d Cir. 1994).

       Chen concedes that his motion to reopen was late, but he argues that we should

apply the doctrine of equitable tolling because of the ineffective assistance of his former

counsel. We begin by noting that “equitable tolling is an extraordinary remedy which

should be extended only sparingly.” Mahmood, 427 F.3d at 253 (quoting Hedges v.

United States, 404 F.3d 744, 751 (3d Cir. 2005)). We will toll in certain circumstances,

but only where the petitioner has exercised due diligence in pursuing his claim.

Mahmood, 427 F.3d at 251-52.

       Here, Chen filed his motion to reopen in early April 2005, approximately twenty-

eight months after the BIA’s December 2, 2002 denial of his former counsel’s motion to

reconsider, and approximately thirty-three months after the BIA’s June 21, 2002 dismissal

of Chen’s I-589 petition. Despite this delay, Chen argues that his motion is timely

because his former counsel cost him his chance to challenge his deportability by missing

                                             3
the original deadline for appeal. Additionally, Chen claims that his former counsel filed

an unsuccessful motion to reconsider without his knowledge or consent. Because of these

alleged failings of his former counsel and his limited understanding of English, Chen

argues that the usual time limit for a motion to reopen should be equitably tolled from the

time the BIA finally disposed of his case to the time he filed his motion to reopen.

       Although ineffective assistance of counsel might serve as a basis for equitable

tolling, Mahmood, 427 F.3d at 251, Chen forfeited this claim by failing to pursue his case

with due diligence. He took no action in his case between December 2, 2002–when the

BIA refused to reconsider its dismissal of his appeal–and March 29, 2005–when he filed a

disciplinary complaint against his former counsel with the Pennsylvania Supreme Court.

We are sympathetic to the fact that Chen “is a foreigner who may . . . have more than the

average difficulty in negotiating the shoals of American law,” Mahmood, 427 F.3d at 253

(quoting Pervaiz v. Gonzalez, 405 F.3d 488, 491 (7th Cir. 2005)), but we find this lengthy

period of inactivity fatal to his tolling claim. We therefore hold that the BIA did not

abuse its discretion in finding Chen’s motion to reopen untimely under 8 C.F.R.

§ 1003.23(b)(1).




                                            III.

       Chen also contests the BIA’s finding that he was not prejudiced by the alleged

ineffective assistance of his former counsel. Because we affirm the BIA’s determination

                                             4
that Chen failed to exercise due diligence, we need not reach the questions of whether

Chen’s former counsel was in fact ineffective or whether Chen was prejudiced as a result.

See Mahmood, 427 F.3d at 252. For the foregoing reasons, we will affirm the BIA’s

decision.




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