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


1-30-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1549




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                                                    NOT PRECEDENTIAL


                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                            No. 06-1549


                       BENSABEUR B. MOKHTAR,

                                      Petitioner,

                                     v.

ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED STATES,


                                          Respondent.



  On Appeal from the Decision of the Board of Immigration
            Appeals (BIA) dated January 20, 2006


            Submitted Under Third Circuit LAR 34.1(a)
                         January 8, 2007

      Before: SLOVITER, RENDELL, Circuit Judges, and IRENAS, *
                      Senior District Judge.

                     (Filed January 30, 2007)




  *
   Honorable Joseph E. Irenas, Senior United States
District Judge for the District of New Jersey, sitting by
designation.

                                 1
                           OPINION


IRENAS, Senior United States District Judge.

      Petitioner Bensabeur B. Mokhtar (“Mokhtar”) seeks

review of a final order issued by the Board of Immigration

Appeals (the “Board”) denying his motion for reconsideration

of the Board’s decision affirming the denial of his motion

to reopen a deportation order entered in absentia.   This

Court must determine whether the Board’s decision denying

petitioner’s motion to reconsider was an abuse of

discretion. 1



                              I.

      The Petitioner, Mokhtar, is a 37 year-old native and

citizen of Algeria.   Mokhtar entered the United States in

January 1992 and his temporary visa expired in July 1992,

after which he was an illegal alien.



  1
     This Court reviews a Board decision to deny a motion to
reopen for abuse of discretion. INS v. Abudu, 485 U.S. 94,
105 (1988). This review is highly deferential and will not
be disturbed unless it is determined to be “arbitrary,
irrational, or contrary to law.” Jian Lian Guo v. Ashcroft,
386 F.3d 556, 561 (3d Cir. 2004)(quoting Tipu v. INS, 20
F.3d 580, 582 (3d Cir. 1994)).

                              2
      On December 28, 1994, the government commenced

deportation proceedings against Mokhtar by the issuance of

an Order to Show Cause, which was served on and read to

Mokhtar.   The hearing date was continued several times by

the Immigration Court (the “IC”), and when Mokhtar failed to

appear for his deportation hearing on September 26, 1996,

the Immigration Judge (the “IJ”) entered an order of

deportation in absentia on that date.   Mokhtar alleges that

he did not receive either the notices adjourning the hearing

dates or the deportation order in absentia. 2


  2
     When petitioner was personally served on December 28,
1994, with an Order to Show Cause as to why he should not be
deported, he was living at 156 Union Street, Brooklyn, New
York. The hearing date was scheduled for June 1, 1995.
(Appx. Vol. II at pp. 535-41). In May 1995, petitioner
moved to 157 Smith Street in Brooklyn. (Appx. Vol. II at
pp. 461-63). On August 8, 1995, a notice that the
deportation hearing was rescheduled was mailed to petitioner
at 156 Union Street, his former address. (Appx. Vol. II at
p. 542). On September 6, 1995, a new hearing date was set
for February 21, 1996, but this notice was sent to 256 Union
Street, an incorrect street number of his former address.
     On some date in September 1995, petitioner again moved,
this time to 424 Senator Street, also in Brooklyn. On
December 11, 1995, the deportation hearing was scheduled for
March 15, 1996, and on August 9, 1996, it was again
rescheduled, this time for August 28, 1996. Both notices
were again mailed to 256 Union Street. (Appx. Vol. II at
pp. 402-08). A new hearing date was once again set by
notice on August 28, 1996, for September 26, 1996, the date
on which the in absentia order of deportation was entered.
This last notice, and the Order of Deportation, were mailed
to 156 Union Street, a correct version of petitioner’s

                              3
      On July 23, 2002, Mokhtar submitted a Motion to Reopen

Removal Proceedings to the IC based on a Lozada claim of

ineffective counsel. 3   A hearing was held on February 5,



former address. (Appx. Vol. II at pp. 407-11).
     It appears that the discrepancy between 156 Union
Street and 256 Union Street was irrelevant since he was no
longer living on Union Street as of May 1995. Petitioner
alleges that he mailed change of address notices to the
Immigration and Naturalization Service’s New York office,
where his petition for adjustment of status was pending.
Apparently these changes of address were not automatically
forwarded to the IC in Philadelphia, where the deportation
proceedings were pending. Indeed, any failure to forward,
after March 30, 1996, is not surprising. Question number 16
to form I-130, the adjustment of status application, states:
“Has your relative ever been under immigration proceedings?”
The box for “NO” is checked, even though petitioner knew,
when this form was filed on March 30, 1996, that he had been
a party to a deportation proceeding. (Appx. Vol. II at pp.
25, 461).
  3
     The Board held in Matter of Lozada, 19 I & N Dec. 637,
639 (BIA), aff’d, 857 F.2d 10 (1st Cir. 1988), that claims
of ineffective assistance of counsel require: “1) that the
motion be supported by an affidavit of the allegedly
aggrieved respondent setting forth in detail the agreement
that was entered into with counsel with respect to the
actions to be taken and what representations counsel did or
did not make to the respondent in this regard; 2) that
counsel whose integrity or competence is being impugned be
informed of the allegations leveled against him and be given
an opportunity to respond; and 3) that the motion reflect
whether a complaint has been filed with appropriate
disciplinary authorities with respect to any violation of
counsel’s ethical or legal responsibilities, and if not, why
not.” See also Ponce-Leiva v. Ashcroft, 331 F.3d 369 (3d
Cir. 2003)(concluding that the three-prong test is a
reasonable exercise of the Board’s discretion).
Additionally, this Court requires that the party alleging
ineffective assistance of counsel provide such counsel with

                               4
2003, after which the IJ denied Mokhtar’s motion.    Mokhtar

claims that in May of 1995, his fiancé and now wife,

Carolinda Roman (“Roman”), called an attorney, Laura Weiss

(“Weiss”), for advice concerning Mokhtar’s pending

deportation hearing.   Mokhtar claims that Weiss told Roman

that Mokhtar did not have to attend the deportation hearing

because of his eligibility for an adjustment of status once

he married Roman, who was a U.S. citizen.    Mokhtar was

married prior to the September 26, 1996, hearing but never

received final approval for an adjustment of status.

Mokhtar admitted at the February 5, 2003, hearing that the

only communication with Weiss involved a single telephone

conversation between Weiss and Roman in May 1995.

    Mokhtar did not assert this Lozada claim within 180

days of the date of the September 26, 1996 deportation

order.   8 U.S.C. § 1229a(b)(5)(C)(i).   However, Mokhtar

claims that ineffective assistance of counsel not only

constitutes “exceptional circumstances” which justify a

reopening of the original deportation order, but also

justifies an equitable tolling of the 180-day time limit.

     The IJ denied Mokhtar’s motion to reopen on February


an opportunity to respond.   See Lu v. Ashcroft, 259 F.3d
127, 132 (3d Cir. 2001).

                              5
5, 2003, and on November 10, 2005, the Board affirmed and

adopted the IJ’s decision, noting that even if the Board

were to toll the 180-day statutory limitations period for

seeking to reopen an order of deportation entered in

absentia, Mokhtar had failed to satisfy the Board’s Lozada

standards as approved and expanded by Third Circuit

precedent.   (Appx. Vol. I at pp. 5-6)   Mokhtar moved for

reconsideration of the denial of his Motion to Reopen but

the Board denied that motion on January 20, 2006 (Appx. Vol.

I at pp. 2-3), noting that not only had Mokhtar failed to

meet the requirements of Lozada, but also that by waiting

seven (7) years to check his immigration status, Mokhtar

“shows his lack of due diligence.”    (Id. at p. 3).



                             II.

    This Court has jurisdiction to review final orders of

the Board of Immigration Appeals.    See 8 U.S.C. § 1252;

Ponce-Levia, 331 F.3d at 371.



                             III.

    The issue before this Court is whether the Board abused

its discretion when it denied Mokhtar’s motion for


                                6
reconsideration of its Order denying the motion to reopen

the in absentia deportation order entered on September 26,

1996.

      An in absentia final order of removal may be rescinded

only “upon a motion to reopen filed within 180 days after

the date of the order of removal if the alien demonstrates

that the failure to appear was because of exceptional

circumstances.” 4   8 U.S.C. § 1229a(b)(5)(C)(i).   A claim of

ineffective assistance of counsel, if proven, not only

constitutes exceptional circumstances, but may also justify

equitably tolling the 180-day statutory limitation period.

Borges v. Gonzalez, 402 F.3d 398 (3d Cir. 2005).     Mokhtar

argues that, because he received ineffective assistance of

counsel and has satisfied Lozada, he should be permitted to

reopen the September 26, 1996, deportation order.

      This Court disfavors motions to reopen immigration

proceedings “because, as a general matter, every delay works

to the advantage of the deportable alien who wishes to



  4
     “Exceptional Circumstances” is defined in 8 U.S.C. §
1229a(e)(1) as “exceptional circumstances (such as serious
illness of the alien or serious illness or death of the
spouse, child, or parent of the alien, but not including
less compelling circumstances) beyond the control of the
alien.”

                               7
remain in the United States.”       Lu, 259 F.3d at 131 (quoting

INS v. Doherty, 502 U.S. 314, 323 (1992)).       The Supreme

Court has held that appellate courts should afford “broad”

deference to the Board’s decision to deny reopening a

deportation proceeding.   Id. (citing Abudu, 485 U.S. at

110).   To succeed on his petition for review, Mokhtar must

show that the Board’s discretionary decision was arbitrary,

irrational, or contrary to law.       Guo, 386 F.3d at 561.

    We need not reach the issue of whether the Board

properly held that Mokhtar’s ineffective assistance of

counsel claim failed to satisfy Lozada.      The Lozada factors

address the merits of a claim for ineffective assistance of

counsel, not the timeliness of a claim for equitable

tolling.   This Court has held in Mahmood v. Gonzales, 427

F.3d 248 (3d Cir. 2005), that even when allegations of

ineffective counsel would, if proven, justify equitable

tolling, such relief would be barred if there was a lack of

due diligence in asserting the claim. Id. at 252-53.

    Mokhtar surely knew he was subject to deportation when,

in May of 1995, his fiancé allegedly talked to an attorney,

Weiss, who told him that he need not appear because he was

eligible for adjustment of status once he married his

fiancé, which he did before the hearing date of September

                                8
26, 1996.   He filed an application for adjustment of status,

but because of various address changes and INS file

transfers, he did not receive an actual interview on the

application until April 10, 2001, as a result of which the

in absentia order of deportation came to light.   On May 25,

2001, an Immigration and Naturalization Service officer

notified Mokhtar’s then attorney of the deportation order.

(Appx. Vol. II at p. 415). Thus, for almost six years he

failed to investigate the status of his deportation

proceedings, notwithstanding that he knew he had not

received an adjustment of status, the availability of which

was the purported reason for his failure to appear in the

first instance.   Even then, Petitioner waited more than a

year, until July 23, 2002, to file the motion to reopen the

September 26, 1996, deportation order.   (Appx. Vol. II at p.

320).

    The Board considered the evidence and properly used its

discretion to affirm the denial of Mokhtar’s motion for

reconsideration of its denial of his motion to reopen the

September 26, 1996, deportation order issued in absentia.

Although the Board relied on Lozada in reaching its

decision, it also clearly held that Mokhtar failed to



                              9
exercise due diligence when he waited seven years to file

his motion to reopen.   The Board’s decision to deny the

motion for reconsideration was reasonable and was not

“arbitrary, irrational, or contrary to law.”   Guo, 386 F.3d

at 561.



                            IV.

    The Petition for Review is denied.




                              10
