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


4-13-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5109




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                                                  NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                   ———————

                     No. 05-5109

                   ———————

     MOHAMMED EMDADUL HAQUE SARKER,
                         Petitioner
                  v.

  ATTORNEY GENERAL OF THE UNITED STATES,
                           Respondent

                   ———————

         Petition for Review of an Order of the
          United States Department of Justice
             Board of Immigration Appeals
               BIA File No. A76-506-649

                   ———————

       Submitted Under Third Circuit LAR 34.1(a)
                  November 8, 2006

Before: SCIRICA, Chief Judge, McKEE and STAPLETON,
                    Circuit Judges

                (Filed: April 13, 2007)

                   ———————

                      OPINION

                   ———————
McKEE, Circuit Judge

       Mohammed Emdadul Haque Sarker petitions for review of the October 20, 2005,

Order of the Board of Immigration Appeals denying his motion to reopen proceedings,

and affirming the Immigration Judge’s order of removal. For the reasons that follow, we

will deny the petition.

                                             I.

       Inasmuch as we write primarily for the parties who are familiar with the factual

and procedural history of this appeal, we need not reiterate the facts except insofar as may

be helpful to our brief discussion.

       On November 16, 2004, Sarker, represented by new counsel, attorney Anser

Ahmad, filed a second motion to reopen removal proceedings to contest proceedings that

had culminated in Sarker being ordered removed in absentia. The motion alleged that

Sarker’s wife had filed an I-130 petition on his behalf, that Sarker had not received notice

of the removal hearing mailed to his Philadelphia address, and that Sarker’s former

attorney, Marvic Thompson, provided ineffective assistance of counsel in relation to the

first motion to reopen. The motion also stated that Sarker intended to file an ineffective

assistance of counsel claim against Thompson. The IJ denied Sarker’s second motion to

reopen holding that it was barred by 8 C.F.R. § 3.23(b)(1) (1998) (corresponding

provisions now codified at 8 C.F.R. 1003.23(b)(1), (4) (2005)), which allows only one

morion to reopen absent certain circumstances that are not present here.

       The BIA affirmed the IJ’s determination that Sarker’s second motion to reopen

was barred by 8 C.F.R. § 1003.23(b)(4)(ii) (2005). The BIA also ruled that, even if the

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motion were not barred based upon Sarker’s allegation of ineffective assistance of

counsel, Sarker failed to meet the requirements for establishing ineffective assistance of

counsel under the procedure set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA

1988). This petition for review followed.

                                                   II.

       We have jurisdiction pursuant to 8 U.S.C. § 1252 (2000). We review the BIA’s

denial of a motion to reopen removal proceedings for abuse of discretion. McAllister v.

A.G. of the United States, 444 F.3d 178, 185 (3d Cir. 2006).

       As we recently explained in Luntungan v. A.G. of the United States, 449 F.3d 551,

555 (3d. Cir. 2006), the Illegal Immigration Reform and Immigrant Responsibility Act of

1996 expressly limits the number of motions to reopen Sarker can file. See 8 C.F.R.

1003.23(b)(4)(ii) (“[a]n alien may file only one motion pursuant to this paragraph.”).

       Sarker claims that the numerical limitation should not be applied to him because

he did not receive effective assistance of counsel for his first petition to reopen.

Assuming arguendo that the single motion limitation does not apply to an alien who

initially receives ineffective assistance of counsel in trying to reopen a removal

proceeding after being ordered removed in absentia, we nevertheless agree with the

BIA’s conclusion that Sarker did not properly raise that claim here. In Lu v. Ashcroft,

259 F.3d 127, 132, we adopted the requirements for asserting a claim for ineffective

assistance of counsel that had been set forth in Matter of Lozada, supra. Lozada requires

that the motion alleging ineffective assistance of counsel must be supported by an

affidavit “that sets forth in detail the agreement that was entered into with former counsel

                                               3
with respect to the actions to be taken on appeal and what counsel did or did not represent

to the respondent in this regard[.]” In addition, former counsel must be informed of the

allegations and provided an opportunity to respond prior to appeal to the BIA. Where

applicable, the motion should also state whether a complaint has been filed with

appropriate professional disciplinary authorities and, if not, it should explain why no such

complaint was filed. 19 I. & N. Dec. at 639.

       Here, it is undisputed that Sarker twice filed motions to reopen removal

proceedings. App. 16-27, 39-48. Thus, absent some exception, Sarker’s second motion to

reopen is numerically barred by the plain language of the governing statute and

regulation. See Luntungan, 449 F.3d at 557.

       Sarker does not precisely explain whether he is seeking an equitable tolling of time

limits on motions to reopen or a “tolling” of the numerical limit on such motions.

Petitioner’s Br. at 13-14. However, under either theory, he must satisfy the Lozada

requirements for raising a claim of ineffective assistance of counsel. As the Attorney

General notes, Sarker’s affidavit only states that Sarker “intends to file a Lozado (sic)

claim against Attorney Thompson.” App. 17. Sarker received a copy of the IJ’s removal

order on January 24, 2002. App. 16. He has been represented by his present counsel

since November 2004. Sarker has therefore had sufficient time to comply with the

requirements for raising an ineffective assistance of counsel claim. See also Mahmood,

427 F.3d at 252-53 (denying petition for review based on equitable tolling claim for want

of due diligence). Accordingly, the BIA did not abuse its discretion in denying the instant

motion to reopen.

                                               4
       Sarker also seeks relief based on his changed personal circumstances. He is now

married to a United States citizen and they have a child who is also a citizen. Sarker’s

wife submitted an I-130 petition on his behalf promptly after their marriage. Petitioner’s

Br. at 14-15. As the Government correctly notes, the governing statute and regulation do

not recognize this exception to the limitation imposed on motions to reopen.

Respondent’s Br. at 12; see 8 U.S.C. 1229a(c)(7); 8 C.F.R. 1003.23(b)(4)(ii). Rather, the

regulations only recognize “changed circumstances arising in the country of nationality or

in the country to which deportation has been ordered,” not the petitioner’s changed

personal circumstances here. 8 C.F.R. 1003.2(c)(3)(ii) (2005); see, e.g., Haddad

v.Gonzales, 437 F.3d 515, 517 (6th Cir. 2005); Zheng v. U.S. Dep’t of Justice, 416 F.3d

129, 130-31 (2d Cir. 2005).

                                                 III.

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




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