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


5-20-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4748




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                                                  NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                         No. 06-4748


               PARAMJIT SINGH BAIDWAN,

                                            Petitioner
                               v.

     ATTORNEY GENERAL OF THE UNITED STATES,

                                            Respondent.

                    __________________

           On Petition for Review of an Order of the
               Board of Immigration Appeals
                 (Agency No. A76-093-733)
             Immigration Judge: Annie S. Garcy
                     __________________

          Submitted under Third Circuit LAR 34.1 (a)
                     on January 18, 2008


Before: SCIRICA, Chief Judge, BARRY and ROTH, Circuit Judges

                (Opinion filed : May 20, 2008)




                        OPINION
ROTH, Circuit Judge:

       Paramjit Singh Baidwan seeks review of a final order of the Board of Immigration

Appeals (BIA) denying a motion to reopen his immigration proceedings as untimely and

number-barred. Baidwan contends that the BIA did not properly exercise its discretion when

it denied his motion to reopen because of the existence of changed country circumstances and

ineffective assistance of counsel. Baidwan also asserts that the Immigration Judge (IJ) and

BIA erroneously ordered him removed from the United States and erroneously denied his

applications for asylum, withholding of removal, and protection under the Convention

Against Torture (CAT). Finding no abuse of discretion, we will deny the petition for review.

I. BACKGROUND

       Baidwan is a native and citizen of India; he is also a Sikh and alleged member of

Akali Dal Mann. Baidwan entered the United States on February 11, 1998. An I-94 Arrival-

Departure Form indicates his authorized stay expired on February 20, 1998. Baidwan filed

an application for asylum on November 24, 1998. Subsequently, the former Immigration and

Naturalization Service (INS) commenced removal proceedings against Baidwan, charging

that he was subject to removal as an alien who was inadmissible at the time of entry for

failing to possess or present a valid immigration visa, reentry permit, border crossing

identification, or other valid entry document.

       Baidwan, represented by counsel, appeared before the IJ and admitted the allegations




                                             2
against him, conceding removability as charged.1 Following a merits hearing, the IJ denied

Baidwan’s applications for asylum, withholding of removal, and protection under CAT, and

ordered him removed to India. Baidwan filed a timely appeal with the BIA on November 8,

1999. On April 22, 2003, the BIA dismissed Baidwan’s appeal, agreeing with the IJ that

Baidwan failed to meet his burden of proof and persuasion regarding his applications for

asylum and withholding of removal because his evidence was vague, uncorroborated, and

not credible. The BIA also found Baidwan failed to provide credible evidence relating to his

torture claim. On June 16, 2003, Baidwan filed a timely motion to reopen his removal

proceedings. The BIA denied this motion on July 17, 2003, finding he did not meet the

heavy evidentiary burden required for reopening.

       On July 28, 2003, Baidwan filed a petition for review and a motion to stay removal.

We denied the motion to stay removal on August 20, 2003. Baidwan failed to comply with

the briefing schedule and, on October 30, 2003, we terminated the proceedings due to

Baidwan’s failure to prosecute his claim.

       On June 8, 2006, Baidwan filed a second motion to reopen removal proceedings with

the BIA alleging changed country conditions and ineffective assistance of counsel. He also

sought to apply for adjustment of status based on a pending application for labor




  1
    Baidwan conceded to a charge that he was removable as an alien who was inadmissible
at the time of entry for failing to possess or present a valid entry document. Baidwan did not
present an I-94 form during these proceedings. In his brief, Baidwan admitted he had lost
the document. He received a replacement I-94 form on September 6, 2006.

                                              3
certification. The BIA denied the motion on October 27, 2006. The BIA found that

Baidwan’s motion to reopen was untimely and number-barred and that Baidwan failed to

show any exception applied to cure these defects. Even assuming the existence of changed

country circumstances, the BIA found Baidwan failed to show how the additional evidence

was material or would affect the outcome of the case because it was based on the same claim

as his asylum application, which was not credible. The BIA construed Baidwan’s adjustment

of status request as a request for sua sponte reopening to apply for labor certification and

denied the motion. Regarding Baidwan’s ineffective assistance of counsel claim, the BIA

found Baidwan failed to satisfy the requirements of Matter of Lozada, 19 I. & N. Dec. 637

(B.I.A. 1988). Baidwan filed a petition for review on November 13, 2006.

          We have exclusive jurisdiction to review final orders of removal pursuant to INA

Section 242(a)(1). 8 U.S.C. § 1252(a)(1) (2005), as amended by The REAL ID Act of 2005,

§ 106, Pub. L. No. 109-13, Div. B, 119 Stat 231, 310-11. Baidwan’s petition for review was

timely filed only insofar as Baidwan seeks review of the BIA’s October 27, 2006, order.

Venue is proper because the proceedings before the IJ were concluded in Newark, New

Jersey.

          We review the BIA’s denial of a motion to reopen for abuse of discretion. Fadiga v.

Att’y Gen., 488 F.3d 142, 153-54 (3d Cir. 2007). However, we review questions of law, such

as whether the BIA applied the correct legal standard in considering the motion de novo. Id.

Our review of the BIA’s determination of an underlying procedural due process claim is also



                                               4
de novo. Id. A claim of ineffective assistance of counsel in immigration proceedings is

grounded in the Fifth Amendment right to due process. Id. Therefore, we will review

Baidwan’s ineffective assistance of counsel claim de novo. Id.

II. DISCUSSION

       A. Motion to Reopen

       In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

Congress provided a mechanism for reopening proceedings that applies to motions filed on

or after April 1, 1997. 8 U.S.C. § 1229a(c)(7). Generally, an alien may file one motion to

reopen within 90 days of the date of entry of the final administrative order of removal. 8

U.S.C. § 1229(a)(7)(A) & (C)(i). The BIA properly dismissed Baidwan’s second motion to

reopen filed more than three years after a final order of removal as untimely and number-

barred. The BIA did not abuse its discretion by finding Baidwan failed to show an exception

applied and Baidwan does not challenge this determination.          Baidwan merely offers

conclusory statements that this Court should equitably toll the time and number bars without

citing legal authority. He has failed to show that the BIA’s decision was “arbitrary,

irrational, or contrary to law.” See Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).

       B. Ineffective Assistance of Counsel

       In Lozada, the BIA set forth three procedural requirements the petitioner must satisfy

in order for the BIA to consider motions to reopen based on a claim of ineffective assistance

of counsel. See Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1998). Lozada requires the alien



                                             5
to (1) support the claim with an affidavit attesting to the relevant facts; (2) inform former

counsel of the allegations and provide counsel with an opportunity to respond; and (3) state

whether a complaint has been filed with appropriate disciplinary authorities regarding the

allegedly deficient representation, and if not, why not. Id. In Lu v. Ashcroft, “[w]e generally

agree[d] that the BIA’s three-prong test is not an abuse of the Board’s wide-ranging

discretion.” 259 F.3d 127, 133 (3d Cir. 2001). In Lu, we recognized “[t]here are inherent

dangers, however, in applying a strict, formulaic interpretation of Lozada.” Id. For example,

failure to file a bar complaint is not fatal if the petitioner provides a reasonable explanation

for the decision. Id. Finally, in the event the petitioner satisfies Lozada’s procedural

requirements, he must show that he suffered prejudice as a result. Id. at 135, n.5.

       The BIA correctly determined that Baidwan failed to satisfy Lozada’s requirements.

Regarding the first requirement, Baidwan asserts that his former counsel provided ineffective

assistance by conceding to an erroneous charge of removability, failing to discover

Baidwan’s entry was legal, and failing to discover that Baidwan was eligible to file for labor

certification and then for adjustment of status. Regarding counsel’s alleged failure to file

for labor certification, Baidwan failed to provide the BIA with any evidence that any counsel

was ever engaged or agreed to pursue an application for labor certification or an employment

based visa petition.2


  2
    See Lozada, 19 I. & N. at 639-40 (holding first requirement not satisfied where affidavit
asserted ineffective assistance of counsel for failure to file a brief, but failed to include a
statement that set forth in detail the agreement that was entered into with former counsel with

                                               6
       Baidwan’s argument that former counsel conceded to an erroneous charge of

removability by failing to discover Baidwan entered the country legally rather than illegally

also fails to satisfy the first requirement. Baidwan’s replacement I-94 form does indicate

Baidwan entered the country legally, but his authorized stay expired February 20, 1998.

Removal proceedings against him were not initiated until March 1999, more than a year after

his authorized stay expired. Baidwan was subject to removal as an alien who, after

admission as a non-immigrant, had remained in the United States for a time longer than

permitted.   Therefore, Baidwan has not made clear how conceding to removal was

unreasonable. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Moreover, Baidwan

failed to establish how concession to a charge that he was subject to removal for failing to

possess or present a valid entry document prejudiced the outcome of the proceeding as

compared to concession to a charge that he was subject to removal as a non-immigrant who

had remained in the country longer than permitted. See Strickland v. Washington, 466 U.S.

668, 687 (1984).

       Additionally, Baidwan does not dispute that he failed to satisfy the last two Lozada

requirements. He offers no explanation for this failure. We decline to accept Baidwan’s

argument that we should not apply a strict, formulaic interpretation of Lozada where, as here,

Lozada’s procedural requirements have not been met and there is no explanation provided




respect to the actions to be taken on appeal and what counsel did or did not represent to alien
in this regard).

                                              7
for the failure. As a result, we will affirm the BIA’s denial of Baidwan’s motion to reopen

his immigration proceedings based on ineffective assistance of counsel.

III. CONCLUSION

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




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