                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 April 12, 2005
                        _____________________
                                                         Charles R. Fulbruge III
                            No. 04-60079                         Clerk
                       _____________________

RICARDO SILVIO DOS SANTOS OLIVEIRA

                Petitioner
     v.

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL

                Respondent
                        ___________________

                  Petition for Review of an Order
                of the Board of Immigration Appeals
                             A77 542 899
                         ___________________


Before KING, Chief Judge, and BENAVIDES and STEWART, Circuit

Judges.

PER CURIAM:*

     Petitioner Ricardo Silvio Dos Santos Oliveira seeks review

of the decision of the Board of Immigration Appeals (“BIA”)

denying his motion to reopen removal proceedings.

                             I.   Background

     Oliveira is a native and citizen of Brazil who entered the

U.S. in December of 1988.     In 1999, Oliveira consulted one Joarez

Reis, who, according to Oliveira, represented himself as an


     *
          Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

                                    1
attorney and agreed to provide Oliveira with legal services aimed

at securing legal status in the U.S. for Oliveira.   Over the

course of Reis’s representation of Oliveira, Reis submitted

several documents on Oliveira’s behalf without Oliveira’s

knowledge or consent.

     These documents included a pro-se motion for change of venue

from Boston to Dallas and a change of address form which

incorrectly listed Oliveira as residing in Dallas.   Reis later

submitted another motion for change of venue requesting that the

proceedings be transferred back to Massachusetts, but the motion

was denied.   Because Reis had been submitting these motions and

forms without Oliveira’s knowledge, Oliveira was unaware that he

was scheduled to appear for a removal hearing in Dallas in March

of 2000, and the immigration judge ordered him removed in

absentia.   Oliveira was not informed of the order. Reis then

submitted a motion to reopen in April, which was denied.    Reis

appealed that decision in November of 2000.   While that appeal

was pending, Alan R. Finer, an attorney located in Vineyard

Haven, Massachusetts, became Oliveira’s counsel of record.    A few

months later, in November of 2001, the BIA affirmed the

immigration judge’s decision. Notice of the decision was sent to

Finer’s office address.

     In the fall of 2003, Oliveira discovered that Reis was not

an attorney and that Reis had defrauded many Brazilian immigrants

in falsely representing himself as an immigration attorney.

                                 2
Oliveira hired new counsel, Stephen Lagana, to file a motion to

reopen Oliveira’s immigration proceedings with the BIA based on

ineffective assistance of counsel.       The motion alleged that Reis

had falsely represented himself as an attorney, that Reis had

filed documents on behalf of Oliveira without his consent, and

that Oliveira had not received the notice to appear in Dallas in

March of 2000.

     The BIA denied the motion to reopen because Oliveira had

failed to file the motion within 180 days of the BIA’s November

decision dismissing Oliveira’s appeal. Equitable tolling was not

warranted because by the time Oliveira’s appeal had been

dismissed, he was represented by Finer, of whom Oliveira had made

no complaint.    Oliveira could therefore show no good cause for

failure to file the motion earlier.

                       II.    Standard of Review

     We review the BIA’s decisions regarding a motion to reopen

for abuse of discretion.      Efe v. Ashcroft, 293 F.3d 899, 904 (5th

Cir. 2002).

     It is our duty to allow [the] decision to be made by the
     Attorney General’s delegate, even a decision that we deem
     in error, so long as it is not capricious, racially
     invidious, utterly without foundation in the evidence, or
     otherwise so aberrational that it is arbitrary rather
     than the result of any perceptible rational approach.

Id. at 904.

                             III.   Discussion

     An order of removal issued following proceedings conducted

                                     3
in absentia pursuant to 8 U.S.C. § 1229a(b)(5) 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 .

. . .”   8 U.S.C. § 1229a(b)(5)(C)(i). Oliveira admits that his

motion to reopen was subject to the 180-day limit and that his

motion did not meet that time limit.   However, he contends the

180-day limit should be equitably tolled because he did not

realize he had been defrauded by Reis, who had claimed to be an

attorney, until August 2003, almost two years after the BIA’s

final decision.   This Circuit has not addressed whether equitable

tolling applies to the 180-day filing deadline provided in §

1229a(b)(5)(C)(i).   Our sister circuits are not in agreement

regarding whether equitable tolling is applicable to motions to

reopen INS proceedings.   Compare Lopez v. INS, 184 F.3d 1097,

1100 (9th Cir. 1999) (finding that the 180-day filing deadline

provided in 8 U.S.C. § 1252b(c)(3), later replaced by §

1229a(b)(5)(C)(i), is subject to equitable tolling) with Anin v.

Reno, 188 F.3d 1273, 1278 (11th Cir. 1999) (holding that the 180-

day statute of limitations provided in 8 U.S.C. § 1252(c)(3),

later replaced by § 1229a(b)(5)(c)(i) is jurisdictional and

mandatory) and Torres v. INS, 144 F.3d 472, 475 (7th Cir. 1998)

(“[T]he judge-made doctrines of estoppel and tolling are not

applied to deadlines for taking appeals, even if the appellant


                                 4
(or, as here, the petitioner) was without fault in failing to

appeal within the usually very short time (sometimes as short as

10 days) allowed for filing an appeal.”).    However, we need not

decide that issue today because, even if equitable tolling were

applicable, it is not warranted here.

     “Equitable tolling is appropriate when, despite all due

diligence, a plaintiff is unable to discover essential

information bearing on the existence of his claim.” Pacheco v.

Rice, 966 F.2d 904, 906-07 (5th Cir. 1992).    Thus, equitable

tolling will be warranted only in “rare and exceptional

circumstances.”     United States v. English, 400 F.3d 273, 275 (5th

Cir. 2005).

     Here, Oliveira has not met his burden of showing rare and

exceptional circumstances that would allow for tolling of the

filing deadline.    Oliveira has failed to explain how the actions

of Reis prevented him from filing his motion before the 180-day

deadline provided in § 1229a(b)(5)(C)(i).    He has submitted

evidence supporting his allegation that Reis falsely represented

himself as an attorney and fraudulently withheld information from

Oliveira.   However, that evidence does not explain Oliveira’s

failure to timely file his motion to reopen because by the time

the BIA affirmed the immigration judge’s decision not to reopen

the proceeding, Oliveira was represented by Finer, counsel of

record, not Reis.    The record shows that Finer had access to


                                   5
information regarding Oliveira’s immigration proceedings such

that he could have discovered the change of venue motions and

other fraudulent actions taken by Reis.      Oliveira has not alleged

that Finer failed to notify Oliveira of the BIA’s November 2002

decision or that Finer was otherwise incompetent or ineffective.

Thus, Oliveira cannot rely on Reis’s actions to explain his

failure to file his motion to reopen in a timely manner.

     Furthermore, Oliveira’s actions do not evidence a diligent

pursuit of his rights.   He was ordered to appear before an

immigration judge on January 25, 2000, and the record shows that

Oliveira received notice of this order.      However, he does not

explain whether he appeared on that date or not.      If Oliveira had

attempted to appear before the immigration judge on that date, he

would have discovered, at the very least, that his hearing was

canceled and, possibly, that it was rescheduled and transferred

to Dallas. This certainly would have suggested to Oliveira that

Reis was inappropriately withholding information. Oliveira also

does not explain why he did not seek information regarding his

case between January of 2000 and August 2003 (when he allegedly

discovered Reis’s fraud).

                         III.   Conclusion

     Accordingly, we find that the BIA did not abuse its

discretion, and we deny Oliveira’s petition for review.




                                 6
