                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-2167
                                      ___________

                                  ALEX DORMEVIL,
                                                Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                              Respondent
                    ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A079-494-360)
                         Immigration Judge: Alberto Riefkohl
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 6, 2011

        Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges

                              (Opinion filed: April 7, 2011)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

      Alex Dormevil, a citizen of Haiti, seeks review of a Board of Immigration Appeals

(BIA) decision that upheld an Immigration Judge’s (IJ) denial of Dormevil’s motion to

reconsider the IJ’s earlier denial of a motion to reopen removal proceedings. For the
reasons that follow, we will deny the petition for review.

                                             I.

       Dormevil fled from Haiti to Canada on October 8, 1999. That same day,

Dormevil was issued a B-1 nonimmigrant visitor visa from the United States Embassy in

Montreal, and he entered the United States following inspection in New York. Dormevil

overstayed the time permitted by the B-1 visa. In October 2003, he married a naturalized

United States citizen. In September 2004, Dormevil was issued a notice to appear. He

was charged with being removable under 8 U.S.C. § 1182(a)(6)(A)(i) (“An alien present

in the United States without being admitted or paroled . . . is inadmissible.”). To block

his removal, Dormevil applied for asylum, claiming a fear of persecution both by

government officials and by Fanmi Lavalas—the political party of former Haitian

president Jean-Bertrand Aristide—on account of Dormevil’s political activities when he

lived in Haiti. 1

       On the advice of his former counsel, Pierre Eloi, Dormevil withdrew his asylum

application and accepted a grant of voluntary departure from IJ Daniel Meisner on July

26, 2005. Eloi advised Dormevil that if his United States citizen spouse were to file a

Form I-130 Petition for Alien Relative sometime in the future, then Dormevil could

reopen removal proceedings in order to adjust his status to that of a lawful permanent

resident. Apparently, and although IJ Meisner had done so in writing, Eloi did not inform


       1
         The substance of the asylum application was inconsistent with a U.S.-arrival
date of October 8, 1999.


                                             2
Dormevil that his failure to comply with the voluntary departure order would render

Dormevil ineligible for adjustment of status—and many other forms of immigration

relief—for a period of ten years, pursuant to 8 U.S.C. § 1229c(d)(1)(B). Eloi did,

however, advise Dormevil by letter dated July 27, 2005, that “only exceptional

circumstances will except you from leaving as promised.” (AR 14.) 2

       At some point, Dormevil’s wife filed an I-130 petition, and it was approved by

USCIS in February 2008. Based on the approved I-130 petition, Dormevil moved to

reopen removal proceedings in order to adjust his status. IJ Alberto Riefkohl denied the

motion on the ground that Dormevil could not show eligibility for adjustment of status,

solely due to his failure to produce evidence of proper entry into the United States.

Dormevil filed a motion for reconsideration and submitted evidence of his lawful entry

from Canada. IJ Riefkohl denied the motion for reconsideration, invoking

§ 1229c(d)(1)(B) as an alternative basis for refusing to reopen removal proceedings.

Dormevil, with new counsel, appealed to the BIA, claiming for the first time that Eloi

provided ineffective assistance in failing to advise Dormevil about the penalties for

failure to voluntary depart.

       The BIA dismissed Dormevil’s appeal. The BIA agreed with IJ Riefkohl that

§ 1229c(d)(1)(B) renders Dormevil ineligible for adjustment of status for a period of ten


       2
         Eloi was incorrect. The “exceptional circumstances” exception had been
eliminated almost a decade earlier by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, 110 Stat. 3009-546. In re Zmijewska, 24 I. & N. Dec. 87, 90
(2007).


                                             3
years, a fact justifying the denial of Dormevil’s motion for reconsideration. The BIA

thus found that the approved I-130 petition was “of little consequence.” (AR 4.) In

addition, the BIA determined that it “lack[ed] the authority to apply an ‘exceptional

circumstances’ or other general equitable exception to the penalty provisions for failure

to depart.” (AR 4.) The BIA also determined that, to the extent Dormevil claimed that

his failure to depart was the result of ineffective assistance of counsel, Dormevil had

failed to comply with the procedural requirements of In re Lozada, 19 I. & N. Dec. 637

(1988). Finally, the BIA noted that, its decision notwithstanding, “a statement released

by the Department of Homeland Security on January 13, 2010, reflects that ‘all removals

to Haiti [have been halted] for the time being in response to the devastation caused by

[the] earthquake.’” (AR 5.) This petition for review followed.

                                              II.

       We have jurisdiction under 8 U.S.C. § 1252. Kucana v. Holder, --- U.S. ---, 130 S.

Ct. 827, 840 (2010). We generally review only the decision of the BIA, but we can look

to the IJ’s findings of fact or rulings on particular claims insofar as the BIA expressly

deferred to them. See Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010). The denial

of a motion for reconsideration under 8 C.F.R. § 1003.2(b), like the denial of a motion to

reopen 8 C.F.R. § 1003.2(c), is reviewed for abuse of discretion. See INS v. Doherty,

502 U.S. 314, 323 (1992); Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). Under

this standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational, or

contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2003).


                                              4
                                              III.

       The BIA did not abuse its discretion in affirming IJ Riefkohl’s denial of

Dormevil’s motion for reconsideration. Such motions essentially request that the agency

reexamine a particular decision “in light of additional legal arguments, a change of law,

or perhaps an argument or aspect of the case which was overlooked.” In re Ramos, 23 I.

& N. Dec. 336, 338 (BIA 2002) (en banc) (citations and internal quotations omitted). In

this case, Dormevil’s motion to reopen removal proceedings in order to adjust status was

legally frivolous, given the dictates of § 1229c(d)(1)(B). Accordingly, reexamination of

IJ Riefkohl’s first decision (denying reopening) would have been futile, and the BIA’s

affirmance of IJ Riefkohl’s second decision (denying reconsideration) was proper.

       As we stated earlier in this opinion, on July 26, 2005, IJ Meisner ordered

Dormevil to voluntarily depart the United States prior to November 22, 2005. (AR 82.) 3

Despite written notice that his “remaining in the United States beyond the authorized date

[would] result in . . . being found ineligible for certain forms of relief under the

Immigration and Nationality Act,” including “[a]djustment of status or change of status

as provided for in [INA] Section[s] 245, 248 or 249” (AR 84), Dormevil did not leave the

United States. Dormevil claims that his failure to depart was not ‘voluntary,’ given

Eloi’s bad advice. We agree with the BIA, however, that Dormevil’s claim must fail at

the outset because his motions before the IJ did not substantially comply with the


       3
          IJ Meisner’s order noted that Dormevil was declining to adjust his status at that
time in light of his “fraudulent” I-589 form. (AR 82.)


                                               5
procedural requirements for raising an ineffective assistance claim under Lozada. See

Rranci v. Att’y Gen., 540 F.3d 165, 172 (3d Cir. 2008) (outlining those requirements); Lu

v. Ashcroft, 259 F.3d 127, 129 (3d Cir. 2001) (holding that “the Lozada requirements are

a reasonable exercise of the Board’s discretion.”). 4 Relatedly, we reject Dormevil’s

claim that the BIA abused its discretion in declining to remand proceedings to the IJ for

consideration of a procedurally deficient ineffective assistance claim.

       Accordingly, Dormevil’s petition for review will be denied.




       4
          In discussing permissible exceptions to § 1229c(d)(1)(B), the BIA referenced its
precedent holding that an alien’s failure to depart is not “voluntary” where the alien,
“through no fault of his or her own, is unaware of the voluntary departure order or is
physically unable to depart.” In re Zmijewska, 24 I. & N. Dec. at 94. The BIA’s opinion
in In re Zmijewska stressed that this “involuntariness” exception to § 1229c(d)(1)(B),
was not a “substitute for the repealed ‘exceptional circumstances’ exception,” id.; in fact,
the scope of the exception was much narrower than that of its predecessor. Dormevil
does not address—and this is not the proper case to confront the question of—whether
the BIA’s interpretation of the phrase “fails voluntarily to depart the United States,”
found in § 1229c(d)(1)(B), should be accorded deference under Chevron v. Natural Res.
Def. Council, Inc., 467 U.S. 837 (1984). We thus leave that inquiry for another day.

                                             6
