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


10-30-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2874




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Kolodziej v. Atty Gen USA" (2008). 2008 Decisions. Paper 305.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/305


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                     NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT



                          No. 07-2874



                   JADWIGA KOLODZIEJ,
                                Petitioner
                           v.

    ATTORNEY GENERAL OF THE UNITED STATES,
                          Respondent



              On Petition for Review of an Order
             of the Board of Immigration Appeals
                   (No. BIA-1:A73-485-484)
            Immigration Judge: Hon Annie S. Garcy


          Submitted Under Third Circuit LAR 34.1(a)
                      October 27, 2008

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

                   (Filed: October 30, 2008)

                             _____

                           OPINION




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

       Jadwiga Kolodziej petitions for review of an order of the Board of Immigration

Appeals (“BIA”), which denied her motion for reconsideration and motion to reopen

proceedings to enable her to apply for adjustment of status.

                                             I.

       Kolodziej, a native and citizen of Poland, entered the United States without

inspection in March, 1996. On November 15, 1996, she was granted voluntary departure

by an Immigration Judge (“IJ”) but failed to depart. In 2001, the employer of her

husband filed an application for employment certification to sponsor him for lawful

permanent residence, and Kolodziej subsequently filed an adjustment of status

application, but was notified on July 8, 2005 that her application for adjustment of status

was terminated, and that she must request the IJ to reopen the proceedings.

       On July 22, 2005, Kolodziej filed a motion to reopen to apply for adjustment of

status as a derivative beneficiary of her husband’s approved labor certification, a motion

DHS opposed. She also sought reopening, alleging her husband’s serious medical

condition.

       The IJ sua sponte reopened the proceeding on August 30, 2005, and vacated any

prior order of deportation because the Record of Proceeding was missing. The

Department of Homeland Security (“DHS”) appealed, asserting that the motion to reopen

was untimely. Kolodziej also appealed, seeking grant of her application for adjustment of

status. The BIA agreed with DHS that Kolodziej’s motion to reopen was time barred. In

                                             2
addition, the BIA stated that “[i]t is not . . . evident that [Kolodziej] is prima facie eligible

for the requested relief” because she “concedes that her spouse’s and son’s applications

for adjustment of status were not approved as the priority dates were not current.” In re

Kolodziej, 2007 WL 416711 (B.I.A. January 25, 2007). The BIA also stated that her

husband’s medical condition was “not relevant” because her case did not meet the

requirements for a motion to reopen.

       Kolodziej filed a timely motion for reconsideration and another motion to reopen.

The BIA denied those motions on May 31, 2007, reasserting its prior rulings and holding

that Kolodziej failed to state any error of fact or law in the prior BIA decision.

       Kolodziej filed a timely petition for review.

                                               II.

       We review the BIA’s May 31, 2007 decision to deny the motion for

reconsideration under an abuse of discretion standard. Borges v. Gonzales, 402 F.3d 398,

404 (3d Cir. 2005). A BIA decision “will not be disturbed unless . . . found to be

arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.

2004). Under 8 C.F.R. § 1003.2(c)(2), a party may file a motion to reopen “no later than

90 days after the date on which the final administrative decision was rendered in the

proceeding sought to be reopened.” It is undisputed that Kolodziej’s first motion to

reopen, filed July 22, 2005, was filed considerably after the ninety-day deadline which

was to be measured from November 15, 1996, the date she was granted voluntary

departure.

                                                3
       The BIA has sua sponte authority to reopen proceedings, despite the untimeliness

of the motion, “as an extraordinary remedy reserved for truly exceptional situations.” In

re G-D-, 22 I. & N. Dec. 1132, 1134 (B.I.A. 1999). “Because the BIA retains unfettered

discretion to decline to sua sponte reopen or reconsider a deportation proceeding, this

court is without jurisdiction to review a decision declining to exercise such discretion to

reopen or reconsider [a] case.” Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.

2003). The BIA has this unfettered discretion because “[t]here are no guidelines or

standards which dictate how and when the BIA should invoke its sua sponte power.”

Luis v. INS, 196 F.3d 36, 41 (1st Cir. 1999). Accordingly, notwithstanding Kolodziej’s

argument that her husband’s medical condition is an “exceptional circumstance,” this

court does not have jurisdiction to review the BIA’s decision not to sua sponte reopen or

reconsider Kolodziej’s petition.

       An alien may file only one motion to reopen removal proceedings. 8 U.S.C. §

1229a(7)(A); 8 C.F.R. § 1003.2(c)(2). As noted in the preceding statement of the facts,

Kolodziej filed two such motions. The second motion to reopen was number-barred and

no exception is applicable here.

                                            III.

       In her brief to this court, Kolodziej argues that the BIA denied her due process by

failing to apply equitable tolling due to the ineffective assistance of counsel. An

ineffective assistance of counsel claim may be considered as a due process violation if a

petitioner follows the procedural requirements set forth in Matter of Lozada. Zheng v.

                                              4
Gonzales, 422 F.3d 98, 106 (3d Cir. 2005) (citing Lozada, 19 I. & N. Dec. 637, 639

(B.I.A. 1988)). This court does not have jurisdiction to hear a Lozada claim when an

alien has not brought that claim before the BIA. 8 U.S.C. § 1252(d) (“[T]he alien [must]

exhaust[ ] all administrative remedies available to the alien as of right.”); see also

Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003). Because Kolodziej did

not raise an ineffective assistance of counsel claim, in any form, before the BIA, this

court lacks jurisdiction to hear this claim.

       This court has been notified that the Attorney General is in the process of

considering the requirements of Lozada, but we have not been asked to stay disposition of

this matter. Inasmuch as Kolodziej did not bring any ineffective assistance of counsel

claim before the BIA, there is no basis for us to withhold a decision on this petition.

                                               IV.

       For the reasons set forth we will deny Kolodziej’s petition for review.




                                               5
