                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-10-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3861




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                                                                NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 _________________


                                     No. 04-3861




                                  ROEL OLAVIDES,
                                                Petitioner
                                           v.
                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                Respondent
                                  ________________
        On Petition for Review of an Order of the Board of Immigration Appeals
                                  (No. A70-910-047)


                      Submitted Under Third Circuit LAR 34.1(a)
                                  September 30, 2005


                   Before: ALITO and AMBRO, Circuit Judges, and
                                  RESTANI*, Judge


                          (Opinion Filed November 10, 2005)
                                  ________________


                                       OPINION
                                  ________________
________________________
       *Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
RESTANI, Judge.

       Roel Olavides (“Olavides”) petitions for review of an order by the Board of

Immigration Appeals (“BIA”) denying Olavides’ motion to reopen deportation

proceedings for untimeliness. We hold that the BIA did not abuse its discretion and we

deny the petition for review.

                        I. Procedural and Factual Background

       On June 22, 2004, Olavides, a native and citizen of the Philippines, filed a motion

to reopen deportation proceedings before the BIA under 8 C.F.R. § 1003.2(c)(2).

Olavides sought to reopen deportation proceedings in order to obtain relief from

deportation through adjustment of status to lawful permanent resident under 8 U.S.C. §

1255(a). The BIA denied the motion to reopen on September 1, 2004.

       Olavides entered the United States on a visitor visa on May 31, 1990, and filed an

unsuccessful asylum application on May 4, 1993. He exceeded the stay permitted by his

non-immigration visa and Immigration and Naturalization Services1 (“INS”) commenced

deportation proceedings against him on February 21, 1997. The immigration judge found

against Olavides on his asylum claim and granted leave for voluntary departure until May

6, 1998.

       In February 1998, Olavides’ attorney, Elly V. Pamatong (“Pamatong”), filed a




       1
      Effective March 1, 2003, the functions of the INS have been transferred to the
Department of Homeland Security.

                                             2
timely appeal of the immigration judge’s order. The BIA denied the appeal on May 16,

2002, pursuant to 8 C.F.R. § 3.1(a)(7), since amended and renumbered as 8 C.F.R. §

1003.1(e)(4), and granted Olavides thirty days to voluntarily depart from the United

States.

          On March 3, 2002, Olavides married a lawful permanent resident, who became a

United States citizen on February 27, 2003. His wife filed a petition to classify him as a

spouse of a United States citizen and the petition was approved on August 28, 2004.

          Olavides later obtained new counsel and on September 5, 2003, Olavides prepared

an affidavit alleging ineffective assistance of counsel by Pamatong, and wrote a letter

informing Pamatong that he was filing a motion to reopen deportation proceedings based

upon ineffective assistance of counsel. Olavides wrote to Pamatong again on June 15,

2004, and filed a complaint with the State Bar Disciplinary Committee on the same day.

A motion to reopen deportation proceedings was filed on June 22, 2004, nine months

after the affidavit against Pamatong was prepared. The BIA denied the motion to reopen

as untimely, finding no basis to abrogate the ninety-day motions deadline. In particular,

the BIA noted the nine-month delay between the filing of the affidavit and the motion to

reopen.

          On petition for review, Olavides asserts that his claim for ineffective assistance of

counsel should equitably toll the deadline for a motion to reopen and that he exercised

due diligence in pursuing his case. Additionally, Olavides argues that he should benefit

from the favorable change in policy by the Department of Homeland Security toward
                                                3
applications for adjustment of status.

                                         II. Discussion

       An alien has the right to move to reopen deportation proceedings before the BIA if

the motion is “filed no later than 90 days after the date on which the final administrative

decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2).

The deadline for a motion to reopen may be equitably tolled by an ineffective assistance

of counsel claim. See Borges v. Gonzales, 402 F.3d 398, 407 (3d Cir. 2005). A

petitioner who seeks equitable tolling, however, must exercise due diligence in pursuing

the case. See Iavorski v. INS, 232 F.3d 124, 134–135 (2d Cir. 2000); Kanyi v. Gonzales,

406 F.3d 1087, 1090–91 (8th Cir. 2005); Socop-Gonzales v. INS, 272 F.3d 1176, 1193

(9th Cir. 2001). If equitable tolling applies, the filing deadline does not run until the

petitioner knows or should have known that he has a claim for ineffective assistance of

counsel. Kanyi, 406 F.3d at 1091. We review the BIA’s decision denying the motion to

reopen for abuse of discretion. See INS. v. Doherty, 502 U.S. 314, 323 (1992); Sevoian

v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). We discern no abuse of discretion by the

BIA in denying Olavides’ motion to reopen for untimeliness.

       The BIA denied Olavides’ motion to reopen, finding that equitable tolling did not

apply because Olavides failed to exercise due diligence. The BIA relied on the fact that

Olavides waited nine months after filing an affidavit alleging ineffectiveness of counsel

to file a motion to reopen. In so finding, the BIA did not need to reach the merits of

Olavides’ ineffective assistance of counsel claim. See Iavorski, 232 F.3d at 135.
                                               4
       Olavides argues that he provided Pamatong with notice of his ineffective

assistance of counsel claim on September 5, 2003, and waited nine months for a response

from him, as required by the BIA’s decision in Matter of Lozada. 19 I. & N. Dec. 637

(1998). Lozada does not, however, require a response from former counsel before filing a

motion to reopen. See Lozada, 19 I. & N. Dec. at 639; see also Scorteanu v. INS, 339

F.3d 407, 414 (6th Cir. 2003) (finding that petitioner need only notify former attorney of

charge of ineffective assistance of counsel). In any event, it is unreasonable for an alien

to wait nine months to file when he knows that he has already missed his filing deadline.

Accordingly, the BIA did not abuse its discretion by denying the motion to reopen and we

deny the petition for review.2




       2
         Assuming arguendo that Olavides had made a timely motion, Olavides cannot
benefit from the change in policy on adjustment of status applications because he failed to
comply with an order for voluntary departure. Absent exceptional circumstances, an alien
that remains in the United States after the date for voluntary departure is barred from
applying for adjustment of status for a period of five years. 8 U.S.C. § 1252b(e)(2)(A)
(1995) (repealed 1996). Although the statute is now repealed, it applies to petitioner
because his removal proceedings commenced prior to the effective date of the repeal.
                                              5
