07-2064-ag
Rashid v. Mukasey


                             UNITED STATES COURT OF APPEALS

                                 FOR THE SECOND CIRCUIT

                                    August Term 2007

Submitted: April 14, 2008                                 Decided: July 16, 20008

                                 Docket No. 07-2064-ag

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ABDUL RASHID,
          Petitioner,

                       v.

MICHAEL B. MUKASEY,* Attorney General
of the United States,
          Defendant-Appellant.
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Before: NEWMAN, SACK, and B.D. PARKER, Circuit Judges.

        Petition for review of the April 19, 2007, decision of the Board

of Immigration Appeals dismissing a second motion to reopen on the

ground       of     untimeliness.    Petitioner   contends   he   is   entitled   to

equitable tolling of the filing deadline because of ineffectiveness of

prior counsel.              We hold that equitable tolling is not available

because Petitioner failed to exercise due diligence after learning of

counsel’s alleged ineffectiveness.

        Petition denied.



        *
      Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Michael B. Mukasey is automatically substituted for former Attorney
General Alberto R. Gonzales as a respondent in this case.
                                Usman B. Ahman, Ahmad & Horn, P.C., Long
                                  Island City, N.Y., for Petitioner.

                                Peter D. Keisler, Asst. Attorney General,
                                  Michelle Gorden Latour, Asst. Director,
                                  Brendan P. Hogan, Office of Immigration
                                  Litigation, U.S. Dept. of Justice,
                                  Washington, D.C., for Respondent.

JON O. NEWMAN, Circuit Judge.

     This petition to review a decision of the Board of Immigration

Appeals (“BIA”) merits a brief opinion to resolve possible ambiguity

in our prior decisions concerning equitable tolling. Petitioner Abdul

Rashid petitions for review of the BIA’s April 19, 2007, decision that

denied his second motion to reopen the Board’s November 7, 2003,

decision holding him removable.         The BIA ruled that the motion was

untimely and barred by numerical limitation and that Rashid was not

entitled to equitable tolling.         Rashid sought to avoid the time and

numerical   bars   on   the   ground    of    equitable   tolling,   based   on

ineffective assistance of prior counsel. We conclude that the BIA was

entitled to conclude that equitable tolling was not available because

Rashid failed to exercise due diligence after learning of his prior

counsel’s dereliction.    We therefore deny the petition.

                                 Background

     Rashid is a native and citizen of Pakistan.              He entered the

United States in January 1986.               In November 1987, he filed an

application for Temporary Resident Status with the former Immigration


                                       -2-
and Naturalization Service (“INS”).          The INS denied that application

in January 1990 for failure to provide evidence of residence and

employment history.        In November 1994, Rashid, through his attorney,

Martin G. Vuval, filed an application for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”).

In September 1995, while this application was pending, the INS placed

Rashid in deportation proceedings. It charged him with being an alien

who entered the United States without inspection under former section

241(a)(1)(B)   of    the    Immigration     and   Nationality   Act,   8   U.S.C.

§ 1251(a)(1)(B)(1995).         At a 1996 hearing before the IJ, Rashid,

through his then attorney, Kenneth Ageloff, conceded his deportability

and filed an application for suspension of deportation.            In 1998, he

withdrew his applications for asylum and protection under the CAT.

     After a merits hearing in March 1999, the Immigration Judge

(“IJ”) issued an oral decision denying Rashid’s application for

suspension of deportation because Rashid had failed to prove that he

would suffer the requisite extreme hardship if deported from the

United States.      The IJ ordered that Rashid be deported to Pakistan.

Rashid retained a new attorney, Marjorie Modestil, and timely appealed

this decision to the BIA.

     On April 26, 2001, while his appeal to the BIA was pending,

Ishaat O Tauheed Al Sunnah filed an I-360 Special Immigrant-Religious

Worker Petition on Rashid’s behalf. This Petition was approved by the

                                      -3-
INS on March 5, 2002, and Rashid was issued a form I-360.                   On the

basis of this approved petition, Rashid filed an I-485 application to

adjust status on April 10, 2002.                 He was informed by letter on

November 26, 2002 that in order to adjust status he would need to

submit   evidence     of   his    registration      in   the   National    Security

Entry/Exit   Registration        System1    (“NSEERS”)   to    the   Department   of

Homeland Security2 (“DHS”) by December 25, 2003.

     On January 6, 2003, the Board affirmed the IJ’s March 1999

decision without opinion.

     Unhappy   with    his   representation,         Rashid    consulted   another

attorney, Issa A. Abdullah. Rashid informed Abdullah of (1) the BIA’s

decision, (2) the fact that he, Rashid, had an approved I-360, and (3)

the fact that he had filed an I-485 and was awaiting an adjustment of

status interview.     According to Rashid, Abdullah assured Rashid that



     1
      Instituted by the Attorney General, NSEERS was a response to the
“terrorist incidents” of September 11, 2001.     67 Fed. Reg. 52,584
(Aug. 12, 2002).       The program imposed “special registration
requirements” on “nonimmigrant aliens from certain designated
countries,” requiring that they report in person to the former INS in
order “to ensure their compliance with the terms of their visas and
admission, and to ensure the[ir] depart[ure] [from] the United States
at the end of their authorized stay.” 67 Fed. Reg. 52,584 (Aug. 12,
2002). See also 67 Fed. Reg. 70526 (Nov. 22, 2002). Pakistan was one
of the designated countries.
     2
      On March 1, 2003, the INS was reconstituted as the Bureau of
Immigration and Customs Enforcement and the Bureau of U.S. Citizenship
and Immigration Services, both within the Department of Homeland
Security.

                                           -4-
he had “a great chance of reopening [his] deportation case since [he]

had an approved I-360.”           Abdullah also “advised [Rashid] that once

[his] deportation case was reopened [he] would be eligible to [a]djust

[s]tatus.”       On April 5, 2003, Rashid, then represented by Abdullah,

filed a motion to reopen administrative proceedings based upon the

approval of his petition for Special Immigrant status, Form I-360.

The motion to reopen contained only an approved notice of action, Form

I-797, but none of the requisite forms or proof of the filing fee.

     On November 7, 2003, the Board denied the motion to reopen on the

ground    that    Rashid   had    failed   to   comply   with   the   regulatory

requirements       for   filing    a   motion   to   reopen,    see   8   C.F.R.

§§ 1003.2(c)(1); 1003.8(a); 1245.2(a)(2).

     On November 11, 2003, Rashid attended an adjustment of status

interview.   On January 6, 2004, his application to adjust status was

denied because of his failure to comply with NSEERS registration.             In

response, Abdullah advised Rashid that he would file a motion to

reopen and reconsider the denial of Rashid’s application to adjust

status.   The motion was filed on February 5, 2004.

     On July 20, 2005, DHS denied Rashid’s motion to reopen and

reconsider his adjustment of status application because it did not

explain why Rashid failed to comply with NSEERS registration.             Upset

by the denial, Rashid contacted Abdullah’s office to discuss the

matter, but was informed that Abdullah would be away for two weeks.

                                        -5-
Rashid never again attempted to contact Abdullah.

       Over   a   year   later,    in        September    2006,     Rashid   retained      new

counsel, Usman B. Ahmad.                On September 15, 2006, Ahmad promptly

notified Abdullah that he had been retained by Rashid, and that Rashid

was seeking to reopen his case on the basis of Abdullah’s ineffective

assistance.       Ahmad requested that Abdullah (1) “contact [his] office

to    discuss     the   work   .   .    .    [he]     d[id]   for   [Rashid],”       and   (2)

“immediately” forward to his office all documents related to Rashid’s

case.    Ahmad also advised Abdullah that any information he provided

might be used in a complaint brought under Matter of Lozada, 19 I. &

N. Dec. 637 (B.I.A. 1998).             Abdullah did not respond.             On October 2,

2006, Rashid filed a complaint against Abdullah with the Grievance

Committee for the 2nd & 11th Judicial Districts.

       On December 26, 2006, Rashid, represented by Ahmad, filed a

motion to reopen his deportation proceeding based upon ineffective

assistance of counsel in the filing of his first motion to reopen.

The motion was rejected by the BIA for reasons not apparent from the

record and resubmitted on January 16, 2007.                    On April 19, 2007, the

BIA denied the motion to reopen.                   The Board found that the motion to

reopen was untimely because it was filed more than three years after

its November 7, 2003, decision, as well as numerically barred under 8

C.F.R. § 1003.2(c)(2). In addition, the Board determined that the 90-

day     limitations      period        for     a     motion   to     reopen,     8    C.F.R.

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§ 1003.2(c)(2), had not been equitably tolled because Rashid failed to

explain why his ineffective assistance of counsel claim was not raised

until three years after the Board’s first decision.

                                   Discussion

     The Board’s denial of a motion to reopen is reviewed for an abuse

of discretion. See Shou Yung Guo v. Gonzales, 463 F.3d 109, 113 (2d

Cir. 2006).     The standard is “highly deferential.” See Morgan v.

Gonzales, 445 F.3d 549, 551 (2d Cir. 2006).

     With certain exceptions inapplicable here, an alien may file only

one motion to reopen, and that motion must be filed no later than

ninety days after the date of the final administrative decision in the

proceeding sought to be reopened. 8 C.F.R. § 1003.2(c)(2).               Rashid

seeks to avoid the time and numerical bars imposed by 8 C.F.R.

§ 1003.2(c)(2) by contending that the ineffectiveness of his prior

counsel entitles him to equitable tolling.

     We have recognized that, under the doctrine of equitable tolling,

ineffective assistance of counsel can, in some circumstances, afford

an alien additional time beyond the limitations period for a motion to

reopen and relieve a petitioner from the numerical bar. See Jin Bo

Zhao v. INS, 452 F.3d 154, 157-60 (2d Cir. 2006).            Equitable tolling

is available only if the alien satisfies a two-part test.           First, the

alien   must   show   that   his   or   her   “counsel’s   performance   was   so

ineffective . . . [that it] impinged upon the fundamental fairness of

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the hearing in violation of the fifth amendment due process clause.”

Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994) (citation and internal

quotation marks omitted); see also Cekic v. INS, 435 F.3d 167, 170 (2d

Cir. 2006); Iavorski v. INS, 232 F.3d 124, 135 (2d Cir. 2000).                      To

meet this standard, the alien “must allege facts sufficient to show

[(a)] that competent counsel would have acted otherwise, and [(b)]

that he was prejudiced by his counsel’s performance.”                Rabiu, 41 F.3d

at 882 (internal quotation marks omitted); Cekic, 435 F.3d at 171.

Second, “the alien must demonstrate ... that [he] has exercised due

diligence in pursuing [his claim].”                  Iavorski, 232 F.3d at 135;

Cekic, 435 F.3d at 171; Jin Hua Wang v. BIA, 508 F.3d 710.                  Here, the

alien   “bear[s]      the   burden   of    proving    that   [he]   w[as]    in   fact

diligent.”      Cekic, 435 F.3d at 171.         “[B]oth prongs of [the equitable

tolling] test must be met.”               Id. at 170.        “Thus, no matter how

egregiously ineffective counsel’s assistance may have been, an alien

will not be entitled to equitable tolling unless he can affirmatively

demonstrate that he exercised reasonable due diligence” in pursuing

his claim.      Id.

     Our prior decisions have arguably created an ambiguity as to

whether   due    diligence    has    to   be    exercised    only   in   learning   of

counsel’s ineffectiveness or also in presenting a claim thereafter.

In Iavorski, we considered equitable tolling in circumstances where

fraud or concealment of the existence of a claim prevents an alien

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from timely filing a motion to reopen.          We said that such tolling “is

permitted until the fraud or concealment is, or should have been,

discovered by a reasonable person in the situation.” Id. at 134

(emphasis added) (citations omitted).           Iavorski did not, however, say

whether due diligence is required after the fraud is or should have

been discovered.

     Thus, it is arguable that Iavorski means that after a fraud or

concealment is or should have been discovered, the full limitations

period begins to run, and we have no need to inquire into whether an

alien is diligent thereafter. But that argument would misconceive the

nature of equitable tolling.        Restarting a full limitations period

occurs only in situations, like securities fraud cases, where a

statute itself says that a cause of action accrues when the fraud is

or should have been discovered.      See Dodds v. Cigna Securities, Inc.,

12 F.3d 346, 350 (2d Cir. 1993).

     Equitable   tolling,   however,     does       not   reset   the    clock   on   a

statutory   limitations   period;   it     is   a    doctrine     that   provides     a

plaintiff with some additional time beyond a limitations period. See

Johnson v. Nyack Hospital, 86 F.3d 8, 12 (2d Cir. 1996) (“[E]quitable

tolling ‘permits a plaintiff to sue after the statute of limitations

has expired if through no fault or lack of diligence on his part he

was unable to sue before.’”) (quoting in a parenthetical Singletary v.

Continental Illinois Nat’l Bank & Trust Co. of Chicago, 9 F.3d 1236,

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1241 (7th Cir. 1993)); Bowers v. Transportacion Maritima Mexicana,

S.A., 901 F.2d 258, 264 (2d Cir. 1990) (“[T]he equitable tolling

doctrine calls for the court to extend the statute of limitations

beyond the time of expiration.”).

       Iavorski never had to consider whether due diligence must be

exercised after the plaintiff learns that his counsel is ineffective

because in that case the plaintiff was not diligent in finding out

that his counsel was ineffective. But the opinion is not inconsistent

with     a   requirement   of   due   diligence   after   learning   of   such

ineffectiveness because it requires due diligence “during the period

the alien seeks to toll,” Iavorski, 232 F.3d at 135, which includes

the period of time after ineffective assistance of counsel was or

should have been discovered but before the motion to reopen is filed.

See also id. at 134 (“‘Equitable tolling requires a party to pass with

reasonable diligence through the period it seeks to have tolled.’")

(quoting Johnson, 86 F.3d at 12)).

       Indeed, the fact that an alien is required to exercise due

diligence both before and after he has or should have discovered

ineffective assistance of counsel, is supported by our holding in

Cekic.       In Cekic, we said that “‘[f]rom the point at which the

ineffective assistance of counsel should have been, or was in fact,

discovered, ‘an alien must demonstrate . . . that the alien has

exercised due diligence in pursuing the case during the period the

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alien seeks to toll,’” Cekic, 435 F.3d at 171 (quoting Iavorski, 232

F.3d at 135).       Wang made the matter entirely clear by explicitly

dividing the due diligence requirement into a two-phase inquiry

concerned    with     both     the        period     of       discovering     counsel’s

ineffectiveness and the period between such discovery and filing the

motion to reopen. Wang, 508 F.3d at 715.                We therefore conclude that

in order to equitably toll the filing deadline for a motion to reopen

based on ineffective assistance of counsel, an alien must demonstrate

that he or she has exercised due diligence during the entire period he

or she seeks to toll.        This includes both the period of time before

the   ineffective    assistance      of    counsel      was    or   should    have    been

discovered and the period from that point until the motion to reopen

is filed.

      In   the   instant   case,     even     if   we     assume    that     Rashid    has

demonstrated the ineffectiveness of his former counsel, see Rabiu, 41

F.3d at 882, the record contains a reasonable basis for the BIA’s

conclusion that Rashid failed to act with diligence in pursuing his

ineffective assistance claim.

      The Board found, based on Rashid’s affidavit, that Rashid “became

dissatisfied with his former counsel’s actions in July, 2005, after

the DHS denied a motion [to reopen and reconsider the denial of

Rashid’s adjustment of status application] filed by Abdullah.” Rashid

made a single phone call to Abdullah’s office after learning of the

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denial, at which time he was told that Abdullah was away for two

weeks.   Rashid admits that he then did nothing to pursue his case

until September 2006, when he consulted a different lawyer.     Thus,

fourteen months elapsed from the time he knew or should have known of

the allegedly ineffective assistance provided by his former counsel

and the time he decided to do something about it.3

     Rashid maintains that he did not discover the ineffectiveness of

his former counsel until his September 2006 meeting with his current


     3
      In previous cases, we have recognized that aliens in deportation
proceedings are often “unfamiliar[] with immigration law,” and
therefore act “reasonabl[y]” when they rely upon “assurances [from
counsel] that their case[s] [are] being pursued.” Cekic, 435 F.3d at
171; see also Aris v. Mukasey, 517 F.3d 595, 600 (2008) (noting that
aliens are often “unfamiliar with our language and culture” and
therefore holding that “misadvice [from an attorney] may constitute
ineffective assistance of counsel”).       We have also recognized,
however, that even an alien who is unfamiliar with the technicalities
of immigration law can, under certain circumstances, be expected to
comprehend that he has received ineffective assistance without being
explicitly told so by an attorney. For example, in Cekic we held that
although the petitioners reasonably relied on their attorney’s
assurances that he was actively pursuing their case, they should have
known that they received ineffective assistance once they “were aware
that there was an order of removal against them.” Cekic, 435 F.3d at
171. By the end of July 2005, Rashid was aware that in each of the
three proceedings in which he had been represented by Abdullah, he had
been denied relief because of procedural errors. On April 5, 2003,
the BIA denied his motion to reopen for failure to comply with the
relevant federal regulations, on November 11, 2003, DHS denied his
adjustment of status application for failure to offer evidence of
NSEERS registration, and on July 20, 2005, DHS denied the motion to
reopen and reconsider his adjustment of status application because his
non-compliance with NSEERS was not explained.        Even someone not
schooled in the technicalities of the law “should have” recognized,
under these circumstances, that his attorney was ineffective.
Iavorski, 232 F.3d at 134; Cekic, 435 F.3d at 171.

                                -12-
    attorney.   But, as we have seen, an alien is required to exercise due

    diligence during the entire period he seeks to toll.    Thus, even if

    Rashid did not immediately realize in July 2005 that his counsel had

    been ineffective, due diligence required that he follow up with his

    attorney after the DHS decision, and if he received no response, to

    obtain new counsel, seek relief from the agency on his own, or take

    other affirmative action.   Rashid does not assert that he did.   His

    claim for equitable tolling was therefore properly rejected.      See

    Iavorski, 232 F.3d at 134 (petitioner, who upon discovery of adverse

    BIA decision, attempted to reach attorney by phone, but failed to do

    so, and then did nothing for a period of two years, failed to exercise

    requisite due diligence).

                                  Conclusion

1        For the foregoing reasons, the petition is denied.




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