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


6-26-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5211




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-5211
                                   ________________

                               CHRISTOPHER SMITH,
                                                           Petitioner

                                            v.

                             ATTORNEY GENERAL OF
                               THE UNITED STATES,
                                                    Respondent
                       ____________________________________

                            On Review of a Decision of the
                             Board of Immigration Appeals
                               (Agency No. A75-453-680)
                      Immigration Judge: Honorable Daniel Meisner
                       ____________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 25, 2008

            Before:    FUENTES, ALDISERT AND GARTH, Circuit Judges

                                 (Filed: June 26, 2008 )

                                       _________

                                        OPINION
                                       _________

PER CURIAM

      Petitioner, Christopher Smith, petitions for review of a final order of the Board of

Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition.
                                            I.

      Smith, a native and citizen of Jamaica, was admitted to the United States on

October 18, 1996 as a B-2 visitor with authorization to remain for six months. On May

20, 1998, Smith was served with a Notice to Appear (“NTA”) charging him with being

removable pursuant to section § 237(a)(1)(B) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1227(a)(1)(B), as an overstay. Smith appeared before the

Immigration Court on June 5, 1998 for a bond hearing. Smith failed to appear at his next

hearing held on September 10, 1998. His attorney, Regis Fernandez, apparently informed

the court that Smith had not communicated with him. Attorney Fernandez was given

written notice of Smith’s next hearing, which was scheduled for September 17, 1998.

Attorney Fernandez appeared for the scheduled hearing but, once again, Smith did not.

Attorney Fernandez stated to the court that Smith had not been in contact with him since

Smith was released from the Elizabeth detention facility on bond. Fernandez further

informed the court that he had twice called the telephone number that Smith had provided

to him and sent a letter to the person who paid Smith’s bond in an effort to make Smith

aware of the hearing. The Immigration Judge (“IJ”) ordered Smith removed in absentia

to Jamaica.

                                           II.

      On February 1, 2006, more than seven and one-half years later, Smith – through

Attorney John Perez – filed a “Motion to Reopen Proceedings Out of Time.” Smith



                                            2
requested that the proceedings be reopened in order to permit his wife to file, and have

adjudicated, a relative petition seeking an adjustment of status on his behalf. In that

motion, Smith alleged that he did not “recall” having received an NTA and that he did not

receive a hearing notice to appear before the IJ for a master calendar hearing in

September 1998. See Admin. Rec. at 108. Petitioner further alleged that “during 2005,”

he and his wife consulted with an attorney in New York who indicated that a motion to

reopen would be filed, but who apparently never filed such a motion. See id. The

government opposed Smith’s request.

       In a Decision and Order rendered on March 20, 2006, the IJ denied Smith’s motion

to reopen. The IJ concluded that Smith did not meet any of the circumstances specified in

INA § 240(b)(5)(C), [8 U.S.C. § 1229a(b)(5)(C)], 8 C.F.R. § 1003.23(b)(4)(ii), under

which a court may rescind the removal order. The IJ noted that Smith received sufficient

legal notice of the hearing since his attorney was served with a copy, see 8 C.F.R. §

1292.5(a), that he did not allege that his failure to appear was caused by exceptional

circumstances or on account of his being in custody, and that he admitted that his motion

was untimely insofar as he sought reopening for purposes of adjusting status. Finally, the

IJ noted that Smith did not establish that he is an immediate relative as defined in INA §

201(b) because he failed to show that his wife is a United States citizen, and he failed to

maintain continuously a lawful status since his entry into the United States. See 8 C.F.R.

§ 1245.1(b)(6). Finally, the IJ concluded that Smith failed to demonstrate that he was



                                              3
eligible to adjust his status in any event because his motion to reopen did not include a

copy of his application for adjustment as required by 8 C.F.R. § 1003.23(b)(3). A

subsequent order was issued on April 18, 2006 denying Smith’s motion for a stay of

removal.

       Smith, with the help of current counsel, sought reconsideration of that decision by

filing a motion on April 18, 2006 pursuant to 8 C.F.R. § 1003.23(b)(2). Smith based his

reconsideration motion on the assertion that he could now offer “additional legal

arguments supported by documentary evidence.” See Admin. Rec. at 57. Smith listed the

following two arguments: 1) he did not receive proper notice of the hearing due to

ineffective assistance of counsel; and 2) he is prima facie eligible to apply for adjustment

of status as an immediate relative of an American citizen. Smith further asserted in the

substance of his motion that he had been denied effective assistance by each of the three

attorneys he hired between June 1998 and January 2006. According to Smith, Attorney

Fernandez was responsible for his failure to appear at the hearing. Next came Attorney

Figeroux, to whom Smith paid a $3750 retainer in January 2004 for a reopen motion that

was never filed. Finally, Smith asserted that Attorney Perez failed to attach to the reopen

motion documents proving that his wife acquired American citizenship in September

2000. Given the layered ineffectiveness that Smith allegedly encountered, the fact that he

was now eligible to adjust his status, and the numerous equities that weighed in his favor

(a naturalized wife, two young U.S. citizen children, steady employment, etc.), petitioner



                                             4
asked that the IJ reconsider his prior decision and rescind the in absentia order of

removal.

       Smith’s reconsideration motion fared no better than his reopen motion, and the IJ

denied it in a Decision and Order issued on June 14, 2006. The IJ noted that the

immigration court has the power to toll the 180-day deadline for reopening cases as set

forth in 8 C.F.R. § 1003.23(b)(4)(iv)(1), when a petitioner has been defrauded by his

attorney, thus causing him to miss a hearing or the deadline to reopen his proceedings.

The IJ further noted, however, that even if fraud is demonstrated, a petitioner must show

that he was duly diligent in his attempts to “investigate and bring the claim.” See IJ

Decision at 2 (Admin. Rec. at 46), citing Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.

2005). The IJ recounted the fact that Smith did not allege that Attorney Fernandez

defrauded him. No decision was necessary with respect to Attorney Figeroux’s actions

(the second attorney) as the IJ concluded that Smith failed to exercise “due diligence” in

pursuing his claim, having waited over three years to hire Attorney Figeroux to file the

reopen motion. Thus, it was Smith’s lack of diligence in pursuing the claim, not Attorney

Figeroux’s inaction, that caused him to “grossly miss” the 180 day deadline. The IJ found

the same to be true of Smith’s third attorney, Mr. Perez, who was not hired until January

2006. Accordingly, the IJ found that Smith did not qualify for tolling of the 180-day

deadline, and he denied Smith’s motion for reconsideration.




                                              5
       Smith sought review of that decision. The BIA, however, dismissed the appeal in

an Order dated December 15, 2006. The BIA found that, “even if equitable tolling is

applied for untimely motions to reopen based on ineffective assistance of counsel,

[Smith] failed to exercise due diligence in pursuing a claim of ineffective assistance of

counsel.” See BIA’s Order at 2 (Admin. Rec. at 3). The BIA placed particular emphasis

on certain statements that Smith and his attorney made in support of the reconsideration

motion. In particular, the BIA referenced: 1) Smith’s assertion that he did not take any

steps to address the situation for “some time” after receiving a copy of the removal order

and discovering that he had lost his bond money; 2) the fact set forth in Smith’s affidavit

that he did not meet with Attorney Figeroux until January 2004, more than five years after

receiving his in absentia order; and 3) counsel’s statement that Smith consulted with two

other attorneys after his wife was naturalized in September 2000, which equates to a

statement that Smith waited at least two years after receiving the in absentia order before

seeking legal advice. The BIA thus agreed with the IJ that Smith failed to exercise due

diligence as required for equitable tolling. Consequently, it determined that the IJ

properly denied Smith’s motion to reopen as untimely filed. Smith has filed a petition for

review of the BIA’s order.

                                            III.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the denial of a

motion for reconsideration for an abuse of discretion and will disturb the BIA’s decision



                                             6
only if it is arbitrary, irrational, or contrary to law. Borges, 402 F.3d at 404; see also Tipu

v. INS, 20 F.3d 580, 582 (3d Cir. 1994). When the BIA issues a decision on the merits,

we generally review only the BIA’s order. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d

Cir. 2005). Where the BIA adopts the reasoning of the IJ with some discussion of the

bases for the IJ’s decision, we also review the order of the IJ. Chen v. Ashcroft, 376 F.3d

215, 222 (3d Cir. 2004). We review legal conclusions de novo, “with appropriate

deference to the agency’s interpretation of the underlying statute in accordance with

administrative law principles.” Mahmood v. Gonzales, 427 F.3d 248, 250 (3d Cir. 2005).

We will sustain factual determinations if they are supported by substantial evidence in

the record. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). Under the substantial

evidence standard, we will uphold the determinations of the BIA and the IJ “unless the

evidence not only supports a contrary conclusion, but compels it.” Id. at 483-84.

       Under the INA, when an alien does not attend a removal proceeding after written

notice has been provided to the alien or the alien’s counsel of record, the IJ must order the

alien 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.” INA § 240(b)(5)(A) [8 U.S.C. § 1229a(b)(5)(A)]. Such an order may be

rescinded, however, if the alien moves to reopen the removal order within 180 days and

establishes that his failure to appear was because of exceptional circumstances. See §

240(b)(5)(C)(i); 8 C.F.R. § 1003.23(b)(4)(ii). We have held that the 180-day period is



                                               7
subject to equitable tolling. See Borges, 402 F.3d at 406; Mahmood, 427 F.3d at 251-52.

Notably, though, while ineffective assistance of counsel may provide a basis for tolling

and can be an extraordinary circumstance excusing a failure to appear, an alien still must

be diligent in discovering that he has been misled or injured. See Mahmood, 427 F.3d at

252-53.

       On the record presented, Smith has not shown that the BIA abused its discretion in

upholding the IJ’s determination that he failed to exercise due diligence during the time

period sought to be tolled. The BIA’s decision adequately sets forth the relevant periods

of delay and we need not reiterate those in great detail here. Given the initial delay

between the entry of the in absentia order in September 1998 and Smith’s decision two

years later to “consult” with two attorneys, we cannot say that the BIA’s determination

that Smith failed to exercise due diligence is arbitrary, irrational, or contrary to law, even

considering Smith’s contention that part of the delay was attributable to a conversation he

had with Attorney Fernandez after counsel’s actions allegedly caused the entry of the in

absentia order. See Borges, 402 F.3d at 407, citing Robinson v. Johnson, 313 F.3d 128,

142 (3d Cir. 2002) (“explaining that a petitioner must ‘exercise reasonable diligence in

investigating and bringing the claim.’”)(emphasis added); see also Mahmood, 427 F.3d at

252-53. Furthermore, we note that Smith failed to follow the procedural requirements

under Matter of Lozada, 19 I.& N. Dec. 637 (BIA 1988), to raise an ineffective assistance

of counsel claim. To raise such a claim, the alien generally must: (1) provide an affidavit



                                               8
attesting to the relevant facts; (2) inform former counsel of the allegations and allow him

the opportunity to respond; and (3) provide information about whether a complaint has

been filed with disciplinary authorities regarding the representation, or if not, why not.

Id. at 639. Moreover, as noted by the BIA, aside from this initial period, Smith’s

association with Attorney Figeroux did not occur until sometime near the beginning of

2004 – almost five years after the entry of the in absentia order. We agree with

respondent’s assertion that the efforts Smith did make do not amount to the type of

“steadfast pursuit” presented in Ghahremani v. Gonzales, 498 F.3d 993 (9th Cir. 2007).

We further agree that the BIA’s determination with respect to the issue of due diligence

renders a review of the IJ’s discussion regarding fraud on the part of counsel unnecessary.

                                             IV.

       For the foregoing reasons, we will deny the petition for review.




                                            9
