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


10-27-2005

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Precedential or Non-Precedential: Precedential

Docket No. 03-3760




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                                      PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                   No. 03-3760


               SYED MAHMOOD,

                             Petitioner

                        v.

  *ALBERTO R. GONZALES, Attorney General
           of the United States,

                             Respondent

        *Substituted pursuant to Rule 43c, F.R.A.P.




      On Appeal from an Order entered before
        The Board of Immigration Appeals
              (No. A 70-891-107)


           Argued September 15, 2004

Before: ALITO, AMBRO and FISHER, Circuit Judges
                 (Filed October 27, 2005 )

Robert Frank, Esquire (Argued)
Suite 1304
60 Park Place
Newark, NJ 07102

      Attorney for Petitioner


Peter D. Keisler
  Assistant Attorney General, Civil Division
Barry J. Pettinato
  Senior Litigation Counsel
David V. Bernal, Esquire
Douglas E. Ginsburg, Esquire
John D. Williams, Esquire
William M. Martin, Esquire (Argued)
United States Department of Justice
Office of Immigration
Litigation
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044

      Attorneys for Respondent


                OPINION OF THE COURT


                                2
AMBRO, Circuit Judge

       Syed Mahmood petitions for review of the decision by
the Board of Immigration Appeals (“BIA”) dismissing his
appeal by agreeing with the Immigration Judge’s (“IJ”) denial
of his motion to reopen as untimely filed. Though we conclude
that Mahmood’s allegations of ineffective assistance of counsel
provide a basis for equitably tolling the relevant filing deadlines,
we nonetheless deny the petition because he failed to exercise
the requisite degree of diligence.

             I.    Facts and Procedural History

       Mahmood, a native and citizen of Bangladesh, entered
the United States in February 1993. In June 1997, the former
Immigration and Naturalization Service (“INS”)1 concluded that
Mahmood had presented invalid documents when he entered the
United States and issued to him a Notice to Appear for possible
removal. Mahmood, however, failed to appear for his hearing
before an IJ in January 1998, and he was ordered removed in
absentia under 8 U.S.C. § 1229a(b)(5)(A). He moved to reopen
the proceedings. After determining that Mahmood had been
severely ill and unable to attend the hearing, the IJ concluded


       1
        Effective March 1, 2003, the INS ceased to exist and its
functions were transferred to the Department of Homeland
Security (“DHS”).

                                 3
that “exceptional circumstances” warranted granting the motion.
See 8 U.S.C. § 1229a(b)(5)(C)(i) (providing that an in absentia
removal order may be rescinded “if the alien demonstrates that
the failure to appear was because of exceptional
circumstances”).

       The IJ scheduled another hearing in March 1999, but
again Mahmood did not appear, and again the IJ ordered his
removal in absentia. In April 1999, he filed a second motion to
reopen, asserting a medical procedure had prevented him from
appearing for the rescheduled hearing. The IJ concluded that
the procedure (removal of a perirectal abscess) was not
sufficiently serious to constitute exceptional circumstances and
denied the motion in May 1999. Included in the certified
administrative record is a cover letter—addressed to Charles
Grutman, Mahmood’s counsel at that time, and dated June 1,
1999—purporting to attach the IJ’s decision.

       Well over a year later, in November 2000, Grutman
received a “bag and baggage” letter ordering Mahmood to report
for removal to Bangladesh. In response, Grutman wrote to the
IJ and asserted that he had never been notified of the denial of
the motion to reopen.2


       2
           The letter stated:

              [Mahmood] appeared in front of you for a
       political asylum case. On the date for the

                                4
       In December 2000, Mahmood’s counsel appealed the
May 1999 order to the BIA, and it dismissed the appeal as
untimely in 2002. Mahmood retained new counsel and filed his
third motion to reopen in July 2002, alleging ineffective
assistance of counsel and seeking an adjustment of status in light
of an approved I-130 petition filed by Karen Mahmood (née
Zimmerman), who had married Mahmood in April 2001. The
IJ denied the motion on the ground that it had been filed over
three years after the IJ issued the in absentia order (that was the



       individual hearing, he failed to appear, and a
       motion to reopen was filed on April 30, 1999.
       Your office sent my office a letter dated 05/11/99,
       [giving] us ten days to make representations
       relative to the motion.
               After that letter, neither my client nor I
       heard anything from the [United States
       Department of Justice Executive Office for
       Immigration Review], nor from [the INS], until
       today, when he received a bag and baggage letter
       calling for his departure on December 20, 2000.
       I called the national hotline and was informed that
       you had denied the motion on May 28, 1999, but
       we never received the denial. As we never
       received the denial, it was not possible to appeal
       your decision.
               Please send me a copy of the denial.



                                5
subject of the second motion to reopen), and thus long after the
applicable time limits for moving to reopen had passed. The
BIA dismissed Mahmood’s appeal in June 2001, and he timely
petitioned for our Court’s review.

                  II.    Standard of Review

        We review a final order of the BIA denying a motion to
reopen for abuse of discretion. Cf. INS v. Doherty, 502 U.S.
314, 323 (1992). Review of the BIA’s legal conclusions is de
novo, with appropriate deference to the agency’s interpretation
of the underlying statute in accordance with administrative law
principles. Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004)
(citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 844 (1984)). Findings of fact may not be
disturbed if supported by substantial evidence. See 8 U.S.C.
§ 1252(b)(4)(B); Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.
2003) (en banc).

                        III.   Discussion

       A.     Equitable Tolling and Ineffectiveness of
              Counsel

      Generally, a motion to reopen must be filed within 90
days of the date of entry of a final administrative order of




                                6
removal. 8 U.S.C. § 1229a(c)(7)(C)(i).3 With respect to in
absentia orders of removal, an alien has 180 days to file a
motion to reopen that seeks to demonstrate that the failure to
appear was because of “exceptional circumstances.” 8 U.S.C.
§ 1229a(b)(5)(C)(i). The BIA concluded that the Mahmood’s
motion was untimely under both deadlines.4

       When this petition for review was filed, courts of appeal
were divided over whether the deadlines in 8 U.S.C. § 1229a for
moving to reopen in absentia orders of removal were mandatory
and jurisdictional or, like a statute of limitations, subject to
equitable tolling. Compare, e.g., Anin v. Reno, 188 F.3d 1273,
1278 (11th Cir. 1999) (holding that the 180-day deadline in
former 8 U.S.C. § 1252b(c)(3)(A) for filing motions to reopen
deportation proceedings is “jurisdictional and mandatory”), with
Pervaiz v. Gonzales, 405 F.3d 488, 490–91 (7th Cir. 2005)
(holding that the 180-day statutory deadline for motion to reopen


       3
        The 90-day limitation was codified at 8 U.S.C.
§ 1229a(c)(6)(C)(i) prior to Congress’s enactment of the REAL
ID Act of 2005, Pub. L. 109-13, div. B, § 101(d), 119 Stat. 231,
304 (2005), which redesignated paragraph (c)(6) as paragraph
(c)(7).
       4
        Because Mahmood was moving to reopen the
proceedings to seek an adjustment of status, the BIA applied the
general rules of paragraph (c)(7) as well as paragraph
(b)(5)(C)’s particular rule for rescinding an order of removal
entered in absentia.

                               7
in absentia proceedings is not jurisdictional and remanding for
further proceedings in light of counsel’s alleged ineffective
assistance), Iavorski v. INS, 232 F.3d 124, 131, 134 (2d Cir.
2000) (holding that the 90-day period provided in former 8
C.F.R. § 3.23(b)(1) for filing motions to reopen is subject to
equitable tolling based on ineffective assistance of counsel), and
Lopez v. INS, 184 F.3d 1097, 1099–1100 (9th Cir. 1999)
(holding that the time limit for motion to reopen an order of
deportation under former 8 U.S.C. § 1252b(c)(3)(A) is subject
to equitable tolling).5

       Subsequently, in Borges v. Gonzales, 402 F.3d 398 (3d
Cir. 2005), we held that the § 1229a(b)(5)(C)(i) deadline is
“appropriately considered as analogous to a statute of limitations
and, thus, subject to equitable tolling.” Id. at 406. In reaching
this holding, we cited the “old chancery rule” for tolling on the



       5
         A motion to reopen based on lack of sufficient notice
may be filed “at any time.” 8 U.S.C. § 1229a(b)(5)(C)(ii). The
BIA found that the IJ’s decision was mailed to Grutman on June
1, 1999, and that finding is supported by substantial
evidence—specifically, the cover letter described above. In
view of this finding—and regulations and caselaw establishing
that service on an alien’s counsel is equivalent to service on the
alien in these circumstances—Mahmood cannot rely on the “at
any time” provision in § 1229a(b)(5)(C)(ii). See Bejar v.
Ashcroft, 324 F.3d 127, 131 (3d Cir. 2003) (citing 8 C.F.R.
§ 292.5).

                                8
ground of fraud. Id.; see also Lopez, 184 F.3d at 1100
(discussing the “old chancery rule” providing that where a party
“has been injured by fraud and remains in ignorance of it
without any fault or want of diligence or care on his part, the bar
of the statute does not begin to run until the fraud is discovered”
(internal quotation marks omitted)); Reuther v. Trs. of Trucking
Employees, 575 F.2d 1074, 1078–79 (3d Cir. 1978).6

       Nevertheless, unlike the alien in Borges, who alleged that
he had been defrauded by an attorney and the attorney’s
paralegal,7 Mahmood alleges that his attorney failed to notify


       6
        Discussing the “old chancery rule” in Reuther (which
Borges cites), we “recogniz[ed] that the case before us [did] not
involve fraud,” but concluded nonetheless, based on “equitable
principles,” that it “present[ed] a factual complex in which there
was ‘no want of diligence or care’” on the part of the party
seeking to invoke the equitable tolling doctrine. 575 F.2d at
1079. We held that the statute of limitations was subject to
tolling. Id.
       7
        Specifically, Borges alleged that he was defrauded into
believing that a licensed attorney was doing all of his legal work
(when instead work was being performed by a paralegal), his
case was proceeding smoothly, and if he appeared for a
scheduled hearing he would be removed. Borges, 402 F.3d at
405. Although Borges only dealt directly with the 180-day
deadline in § 1229a(b)(5)(C)(i), we believe its reasoning also
applies to the 90-day deadline in § 1229a(c)(7), as the statute is

                                9
him of the IJ’s adverse ruling. At first glance, these allegations
appear to be similar to those at issue in Bejar v. Ashcroft, 324
F.3d 127 (3d Cir. 2003), which the Government contends
controls the outcome here by dooming (in the Government’s
view) claims for tolling based on ineffective assistance of
counsel. In Bejar, the alien, who was removed in absentia,
alleged ineffective assistance based on her counsel’s failure to
notify her of the IJ’s adverse ruling, though Bejar admitted that
she had moved to another residence. Id. at 129–31. Without
deciding whether ineffective assistance of counsel can serve as
a basis for tolling, we concluded that Bejar’s counsel “did not
render assistance sufficiently ineffective to justify tolling” the
applicable deadline. Id. at 131 n.1.

        As an initial matter and as already noted, other courts of
appeal have recognized that ineffective assistance can serve as
a basis for equitable tolling in immigration cases. Bejar, which
was decided pre-Borges, does not suggest that ineffective
assistance is not a possible basis for tolling once one accepts, as
we must in light of Borges, that the deadlines are subject to
tolling in at least some circumstances.

       Further, Bejar is distinguishable. Unlike Mahmood,
Bejar contributed to her lack of notice by moving residences and
failing to provide counsel with her new address. Moreover,
counsel’s receipt of the notice was undisputed in Bejar. Here,


best analyzed as an integrated whole.

                                10
Grutman’s letter (claiming he received no notice) is in tension
with the BIA’s finding that notice was sent. In this context,
there are a number of possible scenarios. For example, it is
possible that Grutman’s failure to forward notice to Mahmood
was the result of his or his staff’s mishandling of the letter,
perhaps through mere inadvertence or perhaps through gross
deficiencies in his office’s administrative procedures. It also
possible, as Mahmood asserts, that Grutman received the notice,
never forwarded it to him, and then made misrepresentations to
him and the Court by claiming he (Grutman) had never received
it. Even worse, Grutman may have agreed to represent
Mahmood (and accepted payment) without intending ever to
represent his client adequately. Thus, through no fault of his
own (in his version of the events), Mahmood was deprived of
further proceedings in this case. In this context, the allegations
of ineffective assistance would warrant further consideration by
the BIA or IJ (which issued their decisions well before Borges),
except that for the reasons discussed below his claims fail for
lack of diligence.8




       8
        Because any discussion of what Grutman may have done
or failed to do would be largely speculative, in light of
Mahmood’s lack of diligence we do not attempt to define
generally what qualifies as ineffectiveness sufficient to justify
tolling. Judge Alito joins Part III.A of this opinion solely
because Borges is binding Circuit precedent.

                               11
       B.      Due Diligence

        Though the attorney conduct at issue is sufficient, if
substantiated, to provide a basis for equitable tolling,
Mahmood’s claims still fail for lack of diligence. Cf. Borges,
402 F.3d at 407 (discussing the Government’s argument that the
alien was ineligible for relief because he did not exercise due
diligence); Iavorski, 232 F.3d at 134–35 (holding that
ineffective assistance of counsel provided a basis for equitable
tolling but concluding that the alien’s claim was time-barred
because the alien had not exercised due diligence); Lopez, 184
F.3d at 1100 (adopting “the old chancery rule that where a
plaintiff has been injured by fraud and remains in ignorance of
it without any fault or want of diligence or care on his part, the
bar of the statute does not begin to run until the fraud is
discovered” (emphasis added) (internal quotation marks
omitted)).

        Mahmood has failed to come forward with evidence that
he acted with such diligence. Indeed, he failed to submit an
affidavit, instead resting entirely on Grutman’s letter as the basis
for tolling. Here, the IJ ruled on Mahmood’s first motion to
reopen—and Mahmood received a copy of that ruling—less than
90 days after he filed that motion. Yet, if we accept Mahmood’s
suggestion that he was unaware of the denial of the second
motion until December 2000, when he received the “bag and
baggage” letter, there is no indication in the record that
Mahmood took any steps to inquire about the status of his case

                                12
during the more than eighteen months that passed between the
denial of his motion and the time that he received that letter,
notwithstanding that it took far less time for him to receive the
ruling on the first motion to reopen.

       Furthermore, there is an additional time period that
passed without any suggestion of diligence. The BIA dismissed
Mahmood’s untimely appeal in June 2001, but it was not until
more than a year later, in July 2002, that he filed the third
motion to reopen. Moreover, there is no indication that he was
attempting to seek new counsel or otherwise taking steps to
pursue his immigration case during this period.

        Whether an alien has exercised due diligence generally
should be determined by the IJ in the first instance, and typically
a remand would be in order absent a finding of diligence (or
lack thereof). Cf. INS v. Ventura, 537 U.S. 12, 16 (2002) (per
curiam) (“Generally speaking, a court of appeals should remand
a case to an agency for decision of a matter that statutes place
primarily in agency hands.”). When the outcome is clear as a
matter of law, however, remand is not necessary. See Borges,
402 F.3d at 407 (concluding that the alien had exercised due
diligence as a matter of law). Though it is good to “bear[] in
mind that [Mahmood] is a foreigner who may, therefore, have
more than the average difficulty in negotiating the shoals of
American law,” Pervaiz, 405 F.3d at 491, we are also mindful
that “[e]quitable tolling is an extraordinary remedy which should
be extended only sparingly,” Hedges v. United States, 404 F.3d

                                13
744, 751 (3d Cir. 2005). Taken together, these periods of
unaccounted-for delay reveal a lack of diligence, and thus
Mahmood is not entitled to tolling.

                      *   *   *    *   *

      In this context, we deny the petition for review.




                              14
