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


6-5-2006

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Precedential or Non-Precedential: Precedential

Docket No. 05-2397




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                                  PRECEDENTIAL

 UNITED STATES COURT OF APPEALS
      FOR THE THIRD CIRCUIT


               No. 05-2397


    JULIAN BASTIAN LUNTUNGAN,
                      Petitioner

                      v.

      ATTORNEY GENERAL OF THE
             UNITED STATES;
   SECRETARY OF DEPARTMENT OF
         HOMELAND SECURITY;
         MICHAEL ANDERSON,
as Acting Director of the Newark, New Jersey
  Field Office of the Bureau of Immigration
    and Customs Enforcement; UNITED
 STATES DEPARTMENT OF JUSTICE and
   UNITED STATES DEPARTMENT OF
         HOMELAND SECURITY


   Petition for Review of an Order of the
    United States Department of Justice
       Board of Immigration Appeals
          (Board No. A96-266-204)
                    Argued April 3, 2006

Before: RENDELL, SMITH, and BECKER*, Circuit Judges.

                     (Filed June 5, 2006 )




LAWRENCE SPIVAK (ARGUED)
150 Broadway, Sutie 1400
New York, NY 10038
  Attorney for Petitioner

LINDA S. WERNERY
JANICE K. REDFERN          (ARGUED)
WILLIAM C. PEACHEY
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
   Attorneys for Respondents




    *This case was argued before the panel of Judges Rendell,
Smith and Becker. Judge Becker died on May 19, 2006, before
the filing of the Opinion. The decision is filed by a quorum of
the panel. 28 U.S.C. § 46(d).


                              2
                 OPINION OF THE COURT


PER CURIAM.

       Julian Bastian Luntungan, a native and citizen of
Indonesia and the petitioner in this case, failed to attend two
consecutive removal hearings, and an Immigration Judge (“IJ”)
ordered him removed in absentia. Luntungan then filed three
consecutive motions to reopen, which the IJ denied, and
Luntungan appealed the denial of the third motion to the Board
of Immigration Appeals (“BIA”). Reviewing the denial of the
third motion, the BIA agreed with the IJ that Luntungan was
permitted to file only one motion to reopen. This conclusion, of
course, required the denial of his third motion.

       Addressing Luntungan’s petition for review, we first
conclude that under the plain language of both the Immigration
and Nationality Act and a BIA regulation, an alien ordered
removed in absentia may file only one motion to reopen. See 8
U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.23(b)(4)(ii). We then
consider Luntungan’s contention that we should read an
exception into the one motion rule because his attorney was
ineffective in preparing the first motion to reopen. Other courts
have referred to exceptions to the one motion rule as a form of




                               3
 equitable tolling.1 We leave open the possibility that some
 equitable principle would, in the proper circumstances, permit
 an alien to file more than one motion to reopen, but whatever its
 bounds, equitable tolling will not aid Luntungan. Even
 assuming that the alleged ineffectiveness of Luntungan’s first
 attorney deprived him of a fair chance to be heard on his first
 motion to reopen, the IJ denied Luntungan’s second motion for
 reasons unrelated to the one motion rule, and Luntungan does
 not claim that the attorney who filed the second motion rendered
 ineffective assistance of counsel. Thus, even assuming that
 Luntungan’s first motion to reopen did not provide a fair chance
 to be heard, any procedural unfairness was remedied when the
 IJ considered the second motion.            We therefore deny
 Luntungan’s petition for review.

                              I. Facts

        Luntungan was admitted to the United States in June
 1995, with permission to remain until December 15, 1995. In
 April of 2003, Luntungan applied for asylum. He asserted that
 his house had been burned down, and that he feared persecution
 in Indonesia because he is a practicing Christian and ethnically
 Chinese. The former Immigration and Naturalization Service


       1
        See, e.g., Iturribarria v. I.N.S., 321 F.3d 889, 897 (9th Cir.
2003). We note, however, that the term may not be entirely
accurate, for tolling, by definition, applies to time limits, not
numerical limits. See Black’s Law Dictionary 1525 (8th ed. 2004)
(defining “toll” as “(Of a time period, esp. a statutory one) to stop
the running of; to abate <toll the limitations period>”).

                                  4
then served Luntungan with a Notice to Appear, charging him
with removability on the ground that he remained in the United
States longer than his visa permitted. The Notice to Appear
stated that Luntungan’s removal hearing would occur in New
York, New York on May 6, 2003, but the New York
Immigration Court later granted Luntungan’s motion for a
change of venue to New Jersey.

       Luntungan’s attorney then received a Notice of Hearing
from the Immigration Court in Newark, New Jersey. The Notice
of Hearing stated that if Luntungan failed to appear on
December 9, 2003, an order of removal could be entered against
him. On September 2, 2003, the Newark Immigration Court
sent Luntungan’s attorney a second Notice of Hearing, which
moved the date of the hearing forward to September 19, 2003.
On September 22, 2003, the Newark Immigration Court sent
another Notice of Hearing to Luntungan’s attorney, changing the
hearing date to October 28, 2003.

       Luntungan failed to appear for the October 28, 2003
hearing, and the IJ rescheduled the hearing for November 4,
2003. Luntungan again failed to appear on November 4.
Therefore, the IJ ordered Luntungan removed under §
240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A), which authorizes in
absentia removal orders.2


     2
         The statute provides:

     Consequences of failure to appear


                                 5
        Luntungan responded by filing a series of motions to
 reopen. We emphasize that Luntungan asks us to review only
 the denial of his third motion.3

        First Motion To Reopen. Luntungan first moved to
 reopen proceedings on January 20, 2004. In an affidavit
 attached to the motion, Luntungan implied that his attorney had
 written him a letter informing him of the rescheduled hearing.
 However, he stated that he did not receive any such letter.
 Luntungan did not allege at this stage that his attorney was
 ineffective in failing to notify him of the rescheduled hearing;
 indeed, the same attorney continued to represent him. The IJ
 denied the motion, stating that Luntungan’s attorney was
 properly notified of the rescheduled hearing and that Luntungan
 did not allege that his attorney provided ineffective assistance.



       (A) In general

       Any alien who, after written notice . . . has been
       provided to the alien or the alien’s counsel of record,
       does not attend a proceeding under this section, shall
       be ordered removed in absentia if the Service
       establishes by clear, unequivocal, and convincing
       evidence that the written notice was so provided and
       that the alien is removable. . . .

8 U.S.C. § 1229a(b)(5)(A).
       3
       In his reply brief, Luntungan states that he is “not seeking
this Court’s review of the two initial motions to reopen.”

                                 6
        Second Motion To Reopen. On March 5, 2004,
 Luntungan, represented by new counsel, filed a second motion
 to reopen. Luntungan now asserted that he missed his hearing
 dates due to the ineffective assistance of his former attorney. In
 a new affidavit, Luntungan stated that he did not learn about the
 date changes until he visited his former attorney’s office prior to
 the original hearing date, but after he had missed the two
 rescheduled hearings.

        Luntungan also asserted that his attorney was ineffective
 in preparing his first motion to reopen. He stated that the
 affidavit accompanying his first motion had not been translated
 to him, despite his inability to read English. He claimed that if
 he had understood his affidavit, he would not have
 acknowledged that his former attorney attempted to
 communicate the date changes to him.

       On the same day that he filed the second motion to
 reopen, Luntungan lodged a disciplinary complaint against his
 former attorney with the appropriate ethics committee.
 However, the complaint was not attached to the motion to
 reopen.

        The IJ denied Luntungan’s second motion to reopen,
 stating that his ineffective assistance claim did not meet the
 requirements of Matter of Lozada, 19 I.&N. Dec. 637 (BIA
 1988).4 First, Luntungan failed to provide evidence that his


      4
       We have explained that to comply with Lozada, a motion
to reopen based on ineffective assistance of counsel must meet

                                 7
 former attorney was informed of the ineffective assistance
 allegations and given an opportunity to respond. Second,
 Luntungan neither provided evidence that he filed a formal
 disciplinary complaint nor explained his failure to do so.

         Third Motion To Reopen. On May 12, 2004, Luntungan
 filed a third motion to reopen. This time, he sought to comply
 with the Lozada requirements by attaching both the complaint
 lodged against his former attorney and an affidavit from his new
 attorney, which chronicled discussion between the new attorney
 and the former attorney about the disciplinary complaint.




three requirements:

       (1) the alien’s motion must be supported by an
       “affidavit of the allegedly aggrieved [alien] attesting
       to the relevant facts”; (2) “former counsel must be
       informed of the allegations and allowed the
       opportunity to respond,” and this response should be
       submitted with the motion; and (3) “if it is asserted
       that prior counsel’s handling of the case involved a
       violation of ethical or legal responsibilities, the
       motion should reflect whether a complaint has been
       filed with appropriate disciplinary authorities
       regarding such representation, and if not, why not.”

Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005) (citing Lozada,
19 I.&N. Dec. at 639).


                                 8
        The IJ denied the motion, concluding that under the
 relevant regulations, Luntungan was entitled to file only one
 motion to reopen.5 Luntungan appealed the denial of the third
 motion to the BIA, which issued a one paragraph opinion
 affirming the IJ’s decision. Luntungan now petitions for review
 of the denial of his third motion to reopen.

             II. Jurisdiction and Standard of Review

        We have jurisdiction to review the denial of Luntungan’s
 third motion to reopen under 8 U.S.C. § 1252, which provides
 for judicial review of final orders of removal. Ordinarily, the
 denial of a motion to reopen is reviewed for abuse of discretion.
 Caushi v. Attorney General, 436 F.3d 220, 225 (3d Cir. 2006).
 This case, however, turns entirely on questions of law. “We
 review the BIA’s legal decisions de novo, but will afford
 Chevron deference to the BIA’s reasonable interpretations of
 statutes which it is charged with administering.” Kamara v.
 Attorney General, 420 F.3d 202, 211 (3d Cir. 2005) (citations
 omitted).

                          III. Analysis

                                A.

           Section 240 of the Immigration and Nationality Act


       5
       It is not clear why the IJ denied the second motion to
reopen on the basis of Lozada, rather than applying the one motion
rule.

                                9
 (INA), which governs removal proceedings, states that an alien
 who is ordered removed may file only one motion to reopen:

           Motions to reopen

           (A) In general

           An alien may file one motion to reopen
           proceedings under this section, except that this
           limitation shall not apply so as to prevent the
           filing of one motion to reopen described in
           subparagraph (C)(iv).6

           8 U.S.C. § 1229a(c)(7).7


       6
        Subparagraph (C)(iv), which bears the heading “Special
rule for battered spouses, children, and parents,” does not apply
here. See 8 U.S.C. § 1229a(c)(7)(C)(iv).
       7
        Ordinarily, an alien must file a motion to reopen within 90
days of the entry of a final order of removal. 8 U.S.C. §
1229a(c)(7)(C)(I). However, a different time period applies to an
alien who, like Luntungan, is ordered removed in absentia. Such
an alien may file a motion to reopen within 180 days of an order of
removal “if the alien demonstrates that the failure to appear was
because of exceptional circumstances” or “at any time” if the alien
demonstrates that he did not receive required notice of the
proceedings. 8 U.S.C. §§ 1229a(b)(5)(C)(I) & (ii). While these
provisions create specialized rules for the time period during which
a motion to reopen may be filed by an alien ordered removed in

                                 10
        BIA regulations confirm that an alien ordered removed
 in absentia may file only one motion to reopen:

           Order entered in absentia or removal proceedings.
           An order of removal entered in absentia or in
           removal proceedings pursuant to section
           240(b)(5) of the Act [8 U.S.C. § 1229a(b)(5)] may
           be rescinded only upon a motion to reopen . . . .
           An alien may file only one motion pursuant to this
           paragraph.

 8 C.F.R. § 1003.23(b)(4)(ii) (emphasis added).

        Separate statutes and regulations apply to an alien who is
 ordered deported or excluded—as opposed to removed—in
 absentia. As the Supreme Court has explained, “[r]emoval is a
 new procedure,” created by the Illegal Immigration Reform and
 Immigrant Responsibility Act of 1996 (IIRIRA). Jama v.
 Immigration and Customs Enforcement, 543 U.S. 335, 349
 (2005). As a result of IIRIRA, removal proceedings combine
 “two previously distinct expulsion proceedings, ‘deportation’
 and ‘exclusion.’” Id.8 An alien who would have been placed in



absentia, they do not refer to the number of motions that such an
alien may file. Rather, the general provision governing motions to
reopen, 8 U.S.C. § 1229a(c)(7), applies, permitting only one
motion to reopen.
       8
       See also 8 U.S.C. § 1229a(a)(1) (stating that in removal
proceedings, “[a]n immigration judge shall conduct proceedings for

                                  11
 deportation or exclusion proceedings prior to April 1, 1997, is
 now placed in removal proceedings. Galicki v. INS, No. 02-cv-
 4586, 2003 WL 21781946 (E.D.N.Y. Aug. 1, 2003), at *2.9

        Under the statute that applies to pre-IIRIRA proceedings,
 8 U.S.C. § 1252b, there is no limit on the number of motions to
 reopen that an alien may file. Indeed, the statute does not
 mention motions to reopen. See 8 U.S.C. § 1252b (repealed
 1996). The old statute continues to apply to aliens who were
 placed in proceedings before April 1, 1997, the effective date of
 IIRIRA.10

        The BIA has also promulgated regulations that apply to
 aliens placed in proceedings before April 1, 1997. Under these
 regulations, an alien who is ordered deported in absentia may



deciding the inadmissibility or deportability of an alien.”).
       9
         See also Lara-Torres v. Ashcroft, 383 F.3d 968, 973 (9th
Cir. 2004) (stating that no due process violation occurs where a
petitioner would have been placed in deportation proceedings pre-
IIRIRA, but is placed in removal proceedings post-IIRIRA).
       10
        See Lopez v. I.N.S., 184 F.3d 1097, 1099 n.2 (9th Cir.
1999) (“[Section] 1252b was repealed by IIRIRA, whose rules do
not apply to aliens . . . who were in exclusion or deportation
proceedings as of April 1, 1997.”) (citations omitted); Pub. L. No.
104-208, 110 Stat. 3009-546, 3009-625 (stating that IIRIRA’s
amendments to the INA do not apply to aliens in deportation
proceedings prior to the effective date of IIRIRA).

                                 12
 file an unlimited number of motions to reopen.11 However,
 these regulations do not apply to an alien, such as Luntungan,
 who is placed in proceedings after April 1, 1997.12 An alien
 such as Luntungan is subject to the one motion rule laid out in
 8 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.23(b)(4)(ii).13



       11
            Title 8 C.F.R. § 1003.23(b)(4)(iii)(D) provides:

       The time and numerical limitations set forth in
       paragraph (b)(1) of this section shall not apply to a
       motion to reopen filed pursuant to the provisions of
       paragraph (b)(4)(iii)(A) of this section.

Paragraph (b)(1) permits only one motion to reopen, and paragraph
(b)(4)(iii)(A) refers to motions to reopen following an “order
entered in absentia in deportation proceedings.” Thus, under §
1003.23(b)(4)(iii)(D), the numerical limit on motions to reopen
does not apply to in absentia deportation orders.
       12
            Luntungan concedes as much in his reply brief.
       13
         See Joshi v. Ashcroft, 389 F.3d 732 (7th Cir. 2004) (stating
that 8 C.F.R. § 1003.23(b)(4)(ii) deals with removal proceedings
as distinguished from deportation proceedings and provides that
“only one motion to reopen a removal proceeding may be filed”);
Akwada v. Ashcroft, No. 02-2078, 2004 WL 2538212, at *4 n.5
(4th Cir. Nov. 10, 2004) (“There is no number limit on a motion to
reopen to rescind an order entered in absentia in deportation or
exclusion proceedings if an alien does not receive statutorily
prescribed notice. Akwada, however, was subject to removal

                                   13
        In Borges v. Gonzales, we stated in a footnote, “[w]hen
 an order of removal is issued in absentia . . . the regulations are
 more lenient and it appears that multiple motions to reopen may
 be filed by the alien.” 402 F.3d 398, 402 n.5 (3d Cir. 2005)
 (emphasis added) (citing Saakian v. INS, 252 F.3d 21, 25 (1st
 Cir. 2001); 8 C.F.R. § 1003.23(b)(4)(iii)(D)). As the foregoing
 discussion demonstrates, this statement is questionable: An alien
 may not file multiple motions to reopen an in absentia order of
 removal, as distinguished from an in absentia order of
 deportation. Moreover, the Borges footnote is dicta, and it
 addresses an issue not central to the holding in that case.14
 Declining to follow the Borges footnote, we hold that under 8
 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.23(b)(4)(ii), an alien
 ordered removed in absentia may file only one motion to reopen.

                                 B.

       Luntungan argues that although the INA permits but one
 motion to reopen, the numerical limit should be equitably



proceedings, to which stricter limits apply.”) (citing 8 C.F.R. §§
1003.23(b)(4)(ii) & (iii)(D)); Fajardo v. I.N.S., 300 F.3d 1018,
1020 (9th Cir. 2002) (distinguishing the regulations governing in
absentia removal orders from those governing in absentia
deportation orders).
       14
         The footnote, which appeared in the section of the Borges
opinion devoted to facts and procedural history, was designed only
to explain why the IJ allowed a second motion to reopen. See 402
F.3d at 402 n.5.

                                 14
 “tolled,” allowing him to file multiple motions to reopen.
 Strictly defined, equitable tolling is “[t]he doctrine that the
 statute of limitations will not bar a claim if the plaintiff, despite
 diligent efforts, did not discover the injury until after the
 limitations period had expired.” Black’s Law Dictionary 579
 (8th ed. 2004). Equitable tolling of statutes of limitations has a
 venerable history. See Holmberg v. Armbrecht, 327 U.S. 392,
 397 (1946) (stating that in cases of fraud, equitable tolling “is
 read into every federal statute of limitation”); Borges, 402 F.3d
 at 406 (discussing the “old chancery rule” that a statute of
 limitations will be tolled for fraud).

        In recent cases, we have applied equitable tolling to the
 time periods during which an alien may file a motion to reopen.
 As discussed above, see supra note 7, an alien ordered removed
 in absentia has 180 days to file a motion to reopen arguing that
 he failed to appear due to exceptional circumstances. See 8
 U.S.C. 1229a(b)(5)(C)(I). We have held that this time period is
 subject to equitable tolling. See Borges, 402 F.3d at 406;
 Mahmood v. Gonzales, 427 F.3d 248, 249 (3d Cir. 2005).

         We have not issued a precedential opinion deciding
 whether numerical limits on motions to reopen may be equitably
 tolled, and we note that other circuits have stated different
 views on the issue.15 Even assuming, arguendo, that the one


       15
        The Ninth Circuit “recognizes equitable tolling of
deadlines and numerical limits on motions to reopen or reconsider
during periods when a petitioner is prevented from filing because
of deception, fraud, or error, as long as the petitioner acts with due

                                  15
 motion limit is subject to equitable tolling, we hold that
 equitable tolling does not apply here.

         Luntungan alleges that his first counsel, who filed the
 first motion to reopen, was ineffective. Under the doctrine of
 equitable tolling, Luntungan might be entitled to file a second
 motion. But in effect, Luntungan already received this form of
 relief: Luntungan’s new counsel filed a second motion to
 reopen, which the IJ rejected because Luntungan failed to
 comply with the Lozada requirements. Only when Luntungan
 filed his third motion did the IJ deny it as numerically barred.

        To demonstrate that the IJ erred in denying his third
 motion to reopen as numerically barred, Luntungan must show
 that equitable considerations should permit him to file the third
 motion. This showing would have to be based on unfairness
 surrounding the second motion to reopen. After all, if the
 second motion gave Luntungan a fair chance to be heard, there
 is no equitable reason to permit a third motion.




diligence in discovering the deception, fraud, or error.”
Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (citations
omitted); see also Varela v. INS, 204 F.3d 1237, 1240 (9th Cir.
2000); Davies v. INS, No. 00-1773, 2001 WL 608982 (4th Cir.
June 5, 2001) (allowing equitable tolling). The Sixth Circuit,
however, seems doubtful that the numerical limit may be equitably
tolled and has “never held that equitable tolling applies to
numerical limitations on motions to reopen.” Sene v. Gonzales,
No. 04-3794, 2006 WL 994173, at *4 (6th Cir. Apr. 14, 2006).

                                16
        Luntungan does not allege that the attorney who filed the
 second motion defrauded him or otherwise provided ineffective
 assistance. Consequently, we conclude that the second motion
 gave Luntungan a fair chance to be heard. Equity requires
 nothing more, and we deny the petition for review.16




      16
         Because we conclude that the one motion rule disposes of
this case, we do not reach Luntungan’s argument that he is also
entitled to equitable tolling of the 180-day window in which an
alien ordered removed in absentia must file a motion to reopen.
See 8 U.S.C. § 1229a(b)(5)(C)(I).

                               17
