                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0898n.06
                           Filed: December 15, 2006

                                         Case No. 05-4246

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 CHANDANA WEERASINGHE,                                )
                                                      )
         Petitioner,                                  )
                                                      )       ON APPEAL FROM THE
                v.                                    )       BOARD OF IMMIGRATION
                                                      )       APPEALS
 ALBERTO GONZALES, Attorney General,                  )
                                                      )
                                                      )
         Respondent.                                  )
                                                      )
 _______________________________________              )
                                                      )

BEFORE: BATCHELDER, GILMAN and ROGERS, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge.                     Petitioner Chandana Weerasinghe

(“Weerasinghe”) seeks review of the order of the Board of Immigration Appeals (“BIA”) denying

his motion to reopen deportation proceedings. The BIA concluded that the motion to reopen was

untimely and it refused to apply the doctrine of equitable tolling. Weerasinghe petitions for review,

contending that the ineffective assistance of his former counsel caused the late filing of his motion

to reopen and therefore the doctrine of equitable tolling should apply. We reject Weerasinghe’s

arguments and deny the petition for review.

                                          I. Background

       Weerasinghe was born in Sri Lanka in 1978. According to his own testimony, he was

arrested by Sri Lankan police in August 1999 and detained for seven or eight days. He contends that
during this time he was repeatedly beaten and questioned regarding his friendship with a member

of the Tamil Tigers terrorist organization. He further alleges that his father secured his release by

bribing Sri Lankan officials. Soon thereafter Weerasinghe fled from his homeland to Canada, where

he lived for a year. While in Canada, Weerasinghe applied for, but did not receive, refugee status.

         Approximately November 11, 2000, Weerasinghe entered the United States. The former

Immigration and Naturalization Service (“INS”) brought charges against him, alleging that he was

removable from the United States because he entered this country in violation of Section

212(a)(6)(A)(i) of the Immigration and Nationality Act (“Act”), 8 U.S.C. § 1182(a)(6)(A)(i). At his

August 2001 deportation hearing, Weerasinghe admitted that he was removable under the Act, but

indicated his desire to apply for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). The immigration judge (“IJ”) set the next removal hearing

for March 14, 2002, and noted that supporting documentary evidence must be submitted at least

fourteen days prior to that hearing.

         Sometime prior to the March 14 hearing, Weerasinghe’s attorney, Jay Perez (“Perez”),

informed Weerasinghe of the need to submit corroborating documents to support his asylum

application. Weerasinghe alleges that he delivered the documents to Perez at least one month before

the hearing. Perez, however, asserts that Weerasinghe did not provide him with the requested

documents until a few days prior to the hearing. In any event, Perez attempted to introduce three

documents at the March 14 hearing. Two of the documents were letters written by Sri Lankan

doctors stating that Weerasinghe had suffered “blows on his head.”1 The other document was a letter



         1
          The evidentiary value of these letters is questionable because they do not indicate the source of or any
information regarding the “blows” to W eerasinghe’s head.

                                                           2
from Commercial Bank of Ceylon indicating that a large sum of Sri Lankan money was released

from an unidentified bank account on August 17, 1999. Perez told the IJ that he requested the

documents from Weerasinghe “a long time ago,” but that Weerasinghe had trouble obtaining the

documents from Sri Lanka. Weerasinghe stated that he was unable to find someone to translate the

documents until the “last minute.” Because the three documents were dated prior to 2001, the IJ

found that Weerasinghe had access to them long before the evidentiary deadline, and refused to

admit them.

       At another point during the hearing, Perez requested a continuance because Weerasinghe

“could not answer even simple questions and appeared to be . . . disoriented,” but the request was

denied. Thus Weerasinghe’s primary evidence was his lackluster testimony that recounted his

detention in Sri Lanka and the numerous threats he received from local police and terrorist

organizations. The IJ rejected Weerasinghe’s claims for asylum, withholding of removal, and CAT

protection, finding that his testimony was not credible and highlighting his failure to provide

corroborating evidence.

       After the IJ’s decision, Perez told Weerasinghe that “his case was not a strong case for appeal

[because he] was an extremely poor witness and . . . there was weak evidence.” Weerasinghe

responded by informing Perez that he would hire another lawyer to handle the appeal. However, two

days prior to the appeal deadline, Weerasinghe changed his mind and asked Perez to file a brief on

his behalf; Perez agreed and filed a short four-page brief in which he asserted two errors: (1) the IJ

erred in finding that Weerasinghe lacked credibility and (2) the IJ erred in denying the request for

a continuance. Perez did not expressly contend that the IJ erred in excluding the three documents

proffered during the hearing.


                                                  3
        On March 26, 2003, while the BIA appeal was pending, Perez filed a motion to withdraw as

counsel because Weerasinghe had retained a new attorney. Immediately thereafter Perez forwarded

Weerasinghe a copy of his file. On April 4, 2003, Weerasinghe’s current counsel, E. Dennis

Muchnicki (“Muchnicki”), entered an appearance in the removal proceedings. Over three months

later, on July 14, 2003, the BIA affirmed the IJ’s decision without opinion. Weerasinghe, through

his counsel Muchnicki, appealed the Board’s decision to the this Court, arguing that the IJ erred in

excluding the corroborating documents proffered at the hearing. On May 27, 2005, this Court

declared that it lacked jurisdiction to address the admissibility of the proffered documents because

Weerasinghe had not made that argument before the BIA and had therefore failed to exhaust his

administrative remedies. See Weerasinghe v. Ashcroft, No. 03-4062, 134 Fed. Appx. 26 (6th Cir.

May 27, 2005).

        On July 26, 2005, Weerasinghe filed a motion to reopen his removal proceedings. He

specifically argued that Perez provided ineffective assistance2 because his BIA brief did not

challenge the IJ’s exclusion of three corroborating documents and therefore it “was lacking in

substance.” On September 26, 2005, the BIA rejected Weerasinghe’s motion to reopen because it

was filed long after the expiration of the statutory 90-day time limit. The BIA also refused to apply

the doctrine of equitable tolling because Weerasinghe failed to show that he “acted with due

diligence.” Weerasinghe filed a timely petition for review with this Court.

                                                  II. Analysis

        This Court has jurisdiction to review the BIA’s denial of a motion to reopen deportation



        2
          Jay Perez vehemently disputes the allegation that his representation of Weerasinghe amounted to
ineffective assistance of counsel.

                                                         4
proceedings. Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir. 2006) (citing 8 U.S.C. § 1252(a)).

We review the denial of a motion to reopen for abuse of discretion. Harchenko v. INS, 379 F.3d 405,

409 (6th Cir. 2004) (citing INS v. Doherty, 502 U.S. 314, 323-24 (1992)). “In determining whether

the Board abused its discretion, this Court must decide whether the denial of [the] motion to reopen

. . . was made without a rational explanation, inexplicably departed from established policies, or

rested on an impermissible basis such as invidious discrimination against a particular race or group.”

Sako v. Gonzales, 434 F.3d 857, 863 (6th Cir. 2006) (quoting Allabani v. Gonzales, 402 F.3d 668,

675 (6th Cir. 2005)).

        A respondent in a removal proceeding may file a motion to reopen at any time within 90 days

of the final administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i). In our case there is no dispute that

Weerasinghe did not file his motion to reopen within the 90-day period. The BIA entered its final

order of removal on July 14, 2003, and Weerasinghe did not file his motion to reopen until July 26,

2005, more than two years after the final administrative decision.

        On appeal Weerasinghe challenges the BIA’s refusal to equitably toll the 90-day filing

period. The BIA expressly found that Weerasinghe could not “rely upon ‘equitable tolling’ of a

filing deadline” because he failed to show that he “acted with due diligence.” Weerasinghe argues

that equitable tolling should apply because his former counsel, Jay Perez, rendered ineffective

assistance by failing to challenge the admissibility of corroborating evidence in his brief to the BIA,

causing this Court to reject that argument for failure to exhaust administrative remedies.

Weerasinghe also contends that his due diligence should be measured from the date of this Court’s

May 2005 decision, rather than the date of Perez’s alleged ineffective assistance in 2003. For the

following reasons, we reject both arguments and affirm the BIA’s decision.


                                                   5
         We recognize that a petitioner in immigration proceedings may present a claim for ineffective

assistance of counsel. Scorteanu v. INS, 339 F.3d 407, 413 (6th Cir. 2003). “Because a deportation

proceeding is a purely civil action, an ineffective assistance of counsel claim is reviewed under the

Due Process Clause of the Fifth Amendment rather than under the Sixth Amendment.” Denko v.

INS, 351 F.3d 717, 723 (6th Cir. 2003). “Ineffective assistance of counsel in a deportation

proceeding will rise to the level of a due-process violation under the Fifth Amendment ‘only if the

proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his

case.’” Id. (citing Ramirez-Durazo v. INS, 794 F.2d 491, 499-500 (9th Cir. 1986)).3

         Although recognizing that an ineffective assistance claim is cognizable in immigration

proceedings, we have yet to decide whether such a claim supports equitable tolling of the 90-day

filing deadline applicable to motions to reopen. See Scorteanu, 339 F.3d at 413 (noting that even

though the parties conceded that a statutory filing period “could be subject to equitable tolling due

to . . . ineffective assistance of counsel,” the court need not decide that issue because the petitioner

“failed to prove entitlement to equitable relief”). The circuits as a whole are divided on this issue.

See Panova-Bohannan v. Gonzales, No. 04-60540, 157 Fed. Appx. 706, 707 n.6 (5th Cir. December

9, 2005) (collecting cases). Because Weerasinghe failed to prove that he would be entitled to

equitable relief if it were available, we need not decide whether the 90-day limitations period in 8

U.S.C. § 1229a(c)(7)(C)(i) is subject to equitable tolling. See Scorteanu, 339 F.3d at 413.


         3
          The BIA requires that a petitioner asserting ineffective assistance of counsel must support the motion to
reopen with (1) “an affidavit setting forth ‘in detail the agreement that was entered into with former counsel with
respect to the actions to be taken,’ as well as any representations made by counsel to the alien; (2) proof that the
movant has informed former counsel of the allegations in writing, as well as any response received; and (3) a
statement detailing ‘whether a complaint has been filed with appropriate disciplinary authorities regarding such
representation, and if not, why not.” Scorteanu, 339 F.3d at 414 (quoting Matter of Lozada, 19 I. & N. Dec. 637,
639 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1988)). There is no dispute that W eerasinghe has satisfied these
requirements in filing his motion to reopen with the BIA.

                                                           6
       A litigant seeking to invoke equitable tolling must prove that he acted with due diligence in

pursuing his rights. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984) (“One

who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.”);

Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988) (noting that one of the equitable tolling factors

is “diligence in pursuing one’s rights”). We agree with the BIA that Weerasinghe and his present

attorney failed to act with due diligence in pursuing the motion to reopen. In March 2003, Perez

withdrew as counsel and returned Weerasinghe’s file; soon thereafter Muchnicki entered an

appearance as Weerasinghe’s counsel. It is thus clear that by April 2003 Muchnicki had access to

Weerasinghe’s file and the brief submitted by Perez to the BIA. It is also undisputed that the BIA

did not issue its decision until July 14, 2003. We therefore know that Muchnicki had access to the

contents of Perez’s brief at least three months before the BIA’s decision. If he considered Perez’s

brief to be insufficient, he could have filed a supplemental brief with the BIA. See BIA Prac. Man.

Ch. 4.6(g)(ii) (permitting supplemental briefs based on new arguments outside the original briefing

schedule).

       Alternatively, Muchnicki could have filed a motion to reconsider or a motion to reopen soon

after the BIA’s July 14 decision. 8 U.S.C. § 1229a(c)(6) (governing motions to reconsider); 8 U.S.C.

§ 1229a(c)(7) (governing motions to reopen). Because he knew that Perez’s BIA brief did not raise

the IJ’s refusal to admit corroborating documents, he should have expected that this Court would

refuse to address this argument, finding that Weerasinghe failed to exhaust his administrative

remedies. See 8 U.S.C. § 1252(d) (stating that a court may review a final order of removal only if

the petitioner has exhausted all available administrative remedies). Weerasinghe could have avoided

this jurisdictional problem by filing a motion to reconsider or a motion to reopen immediately after


                                                 7
the BIA’s order was issued. Instead, he chose to appeal the BIA’s decision to this Court, rather than

to file a motion to reopen. The fact that the BIA summarily affirmed the IJ’s decision did not relieve

Weerasinghe of his timely filing obligation. See Bal v. Gonzales, No. 06-3179, 2006 WL 3539297,

at 2 (6th Cir. December 7, 2006) (noting that a “BIA summary affirmance [is] a final appealable

removal order” and a petitioner must “file a timely petition for review of that decision”).

         Weerasinghe further contends that the BIA improperly measured diligence from the time the

case was originally before the BIA in July 2003 rather than the date of this Court’s decision in May

2005, specifically noting that “the grounds for the motion to reopen were created by this Court’s May

27, 2005 decision.”          But this Court’s May 2005 decision did not create the grounds for

Weerasinghe’s motion to reopen; rather, Perez’s alleged ineffective assistance, which occurred when

he filed the BIA brief, “created” the grounds for the motion to reopen. While Muchnicki did not

know the precise effects of Perez’s alleged ineffective assistance until May 2005, he knew of the

conduct comprising this ineffective assistance in 2003 and could have filed his motion to reopen at

that time. We therefore reject Weerasinghe’s attempt to shift the basis of his motion to reopen from

the alleged ineffective assistance in 2003 to this Court’s decision in 2005.4

                                                 III. Conclusion

         For the foregoing reasons, we find no abuse of discretion in the BIA’s dismissal of

Weerasinghe’s motion to reopen, and we deny the petition for review.




         4
          W eerasinghe also argues that the Scorteanu decision indicates that the petitioner’s diligence in pursuing his
motion to reopen is “measured from the time of the alien’s actual notice of the ineffective assistance.” Regardless of
whether this is a proper interpretation of the Scorteanu decision -- which is extremely doubtful -- we note that it
would not change the outcome in this case. W eerasinghe and his new counsel had actual notice of Perez’s alleged
ineffective assistance when they reviewed his BIA brief in 2003, and thus they filed the motion to reopen
approximately two years after receiving actual notice. This conduct certainly does not demonstrate diligence.

                                                           8
