                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                May 23, 2006
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                        ____________________                      Clerk

                            No. 05-60091
                        ____________________


     FLORIAN JUAN CAVAZOS

                Petitioner

          v.

     ALBERTO R GONZALES, U S ATTORNEY GENERAL

                Respondent


_________________________________________________________________

             Petition for Review of an Order of the
                  Board of Immigration Appeals,
                       BIA No. A78 317 893
_________________________________________________________________

Before KING, SMITH, and BENAVIDES, Circuit Judges.

KING, Circuit Judge:*

     Petitioner Florian Juan Cavazos petitions this court for

review of an order of the Board of Immigration Appeals that

adopted and affirmed a decision of the immigration judge denying

her motion to reopen removal proceedings.      The Board denied the

motion to reopen because (1) it was untimely filed pursuant to 8

C.F.R. § 1003.23(b); and (2) Cavazos had failed to leave the

     *
        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that this opinion should not be published and is not precedent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-
United States pursuant to an order of voluntary departure.    For

the following reasons, we DENY the petition for review.

              I.   FACTUAL AND PROCEDURAL BACKGROUND

     Petitioner Florian Juan Cavazos (“Cavazos”), a 49-year-old

native and citizen of the Philippines, was admitted into the

United States at Los Angeles, California on June 16, 2001 as a

nonimmigrant visitor on a B-1 visa.     Although the visa permitted

her to stay in the United States only until July 15, 2001,

Cavazos remained in the United States past the expiration date of

her visa without authorization.    On May 5, 2002, she married Adam

Cavazos, a United States citizen, in Los Angeles County,

California, where the couple apparently resided.1

     In July 2002, immigration officials detained Cavazos while

she was traveling to El Paso, Texas, to join her husband, who was

tending to damage to his home from recent flooding in the area.2

On July 19, 2002, the Department of Homeland Security (“DHS”)

served Cavazos with a Notice to Appear, charging her with removal


     1
        At the time she entered the United States, Cavazos was
married to Ricardo Achilles Alvarez Doctor, but that marriage was
formally dissolved pursuant to a Divorce Decree issued by a
family court in Clark County, Nevada, on March 25, 2002.
     2
        There is some discrepancy about whether Cavazos was
actually en route to El Paso or San Antonio at the time she was
detained by immigration officials. At her initial hearing,
Cavazos contradicted her and her husband’s declarative statements
and requested a change of venue to San Antonio. Because Cavazos
does not challenge the denial of her motion to change venue, her
precise destination at the time she was detained does not matter
for the purposes of this appeal.

                                  -2-
under 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States

for a period of time longer than permitted.    At her master

calendar hearing on October 17, 2002, Cavazos and her husband

appeared before the El Paso Immigration Court without

representation.   The immigration judge (“IJ”) advised Cavazos to

obtain legal representation before entering pleas to the

allegations and charge against her.

     Cavazos subsequently retained the services of an accredited

representative,3 Carmen Guerrero (“Guerrero”), who first appeared

before the immigration court on behalf of Cavazos on February 27,

2003.4   Guerrero conceded that Cavazos was removable under 8

U.S.C. § 1227(a)(1)(B) based on the factual allegations in the

Notice to Appear.   Guerrero also informed the IJ that Cavazos

would be seeking adjustment-of-status relief under 8 U.S.C.

§ 1255.5   An individual merits hearing was set for May 6, 2003.

     Cavazos, accompanied by Guerrero, appeared before the IJ at

the merits hearing on May 6, 2003.    Cavazos reports--and the



     3
        A person entitled to representation in immigration
proceedings may select an accredited representative to fulfill
this role. See 8 C.F.R. § 292.1(a)(4).
     4
         At this hearing, the IJ waived the appearance of Cavazos.
     5
        In order to request a discretionary grant of adjustment-
of-status relief from the Attorney General, an alien must (1)
make an application for such adjustment, (2) demonstrate that he
is eligible to receive an immigrant visa and is admissible to the
United States for permanent residence, and (3) show that an
immigrant visa is immediately available to him at the time his
application is filed. 8 U.S.C. § 1255(a).

                                -3-
government does not contest--that her husband had submitted a

Petition for Alien Relative (Form I-130) that was still pending

approval at the time of the hearing.   The record also indicates

that Mr. Cavazos had received a Request for Additional Evidence,

dated May 6, 2003, that informed him of the need to provide

within thirty days additional evidence of a “joint life” with his

wife to gain approval of the Form I-130.   Without sufficient

evidence of the bona fide nature of the marriage, Cavazos would

be unable to provide the necessary basis for demonstrating that a

visa would be “immediately available” on her Application to

Register Permanent Residence or Adjust Status (Form I-485).     See

8 C.F.R. § 245.2(a)(2)(i)(A) (“An immigrant visa must be

immediately available in order for an alien to properly file an

adjustment application under [8 U.S.C. § 1255].”).6

     Rather than moving for a continuance from the IJ to allow

additional time to complete the process of applying for

adjustment of status, Guerrero requested voluntary departure

pursuant to 8 U.S.C. § 1229c.   In requesting voluntary departure,

Guerrero stated that if the Form I-130 were approved within the

period before her voluntary departure date, then Cavazos would

request that her case be reopened in order to seek a

discretionary grant of adjustment-of-status relief under 8 U.S.C.

     6
        This does not mean that a Form I-130 must necessarily be
approved prior to filing the Form I-485. In fact, Form I-130
itself expressly provides that both forms may be filed
concurrently with the appropriate service center.

                                -4-
§ 1255(a).   The government’s attorney stated that it would not

oppose a motion to reopen under those conditions, and the IJ

agreed that he would reopen the case if Cavazos completed the

application for adjustment of status before the voluntary

departure date.   The IJ accordingly granted the request for

voluntary departure and issued a Written Decision and Order on

May 6, 2003.7

     The Written Decision and Order clearly sets forth the terms

of the voluntary departure order as follows:

     The Respondent sought and was granted the relief of
     voluntary departure pursuant to [8 U.S.C. § 1229c]. The
     Government did not oppose the grant of voluntary
     departure. Under the terms of the grant of voluntary
     departure, the Respondent has until September 3, 2003, to
     voluntarily depart the United States and return to her
     native country of the Phillippines [sic]. Failure to do
     so will result in the Respondent being found ineligible
     for certain forms of relief for a period of ten years,
     including: voluntary departure, cancellation of removal,
     and adjustment of status.
                              . . . .
     IT IS THE ORDER OF THIS COURT THAT THE RESPONDENT IS
     HEREBY GRANTED VOLUNTARY DEPARTURE, PURSUANT TO [8
     U.S.C. § 1229c], WITH A VOLUNTARY DEPARTURE DATE NO
     LATER THAN SEPTEMBER 3, 2003. BY THAT DATE THE
     RESPONDENT MUST HAVE VOLUNTARILY DEPARTED FROM THE
     UNITED STATES TO HER NATIVE COUNTRY OF THE PHILLIPPINES
     [sic].

R. at 194.   The departure date reflects the 120-day maximum

allowable statutory period during which an immigrant must leave

     7
        When the IJ asked if seeking voluntary departure was the
best course of action under the circumstances, Guerrero responded
that it was in the best interests of Cavazos and expressly waived
appeal of all issues in regard to the case. Cavazos did not
express any dissatisfaction with this course of action at the
time.

                                -5-
the United States pursuant to a voluntary departure order that an

IJ may grant in lieu of or prior to the completion of removal

proceedings.8    See 8 U.S.C. § 1229c(a)(2)(A).   The IJ personally

served a copy of the decision on Cavazos, Guerrero, and the

government on May 6, 2003, and sent an additional advisement the

next day reminding Cavazos that failure to voluntarily depart by

the scheduled date would result in certain statutorily prescribed

penalties.9     The additional advisement also informed Cavazos that

failure to voluntarily depart by September 3, 2003 would be

excused only under “exceptional circumstances” such as “serious

illness of the alien or death of an immediate relative of the

alien, but not including less compelling circumstances.”     R. at


     8
        Because the IJ had previously agreed to reopen her
proceedings if Cavazos completed her adjustment-of-status
application before the voluntary departure date, this effectively
gave Cavazos an additional thirty days to file her motion to
reopen the removal proceedings. Compare 8 U.S.C.
§ 1229c(a)(2)(A) (providing a 120-day period for voluntary
departure orders granted in lieu of or prior to the completion of
removal proceedings) with 8 U.S.C. § 1229a(c)(7)(C)(i) (providing
a 90-day period after the date of entry of a final administrative
order of removal to file a motion to reopen).
     9
        The civil penalties for remaining in the United States
past a designated voluntary departure date are set forth under 8
U.S.C. § 1229c(d)(1), which provides:
     [I]f an alien is permitted to depart voluntarily under
     this section and voluntarily fails to depart the United
     States within the time period specified, the alien--
          (A) shall be subject to a civil penalty of not less
          than $1,000 and nor more than $5,000; and
          (B) shall be ineligible, for a period of 10 years,
          to receive any further relief under this section
          and sections 1229b, 1255, 1258, and 1259 of this
          title.

                                  -6-
46.

      The following chronology sets forth the relevant sequence of

events that transpired beginning with the issuance of the

voluntary departure order:

      May 6, 2003:         IJ issues voluntary departure order.

      July 16, 2003:       Cavazos first retains the services
                           of a new lawyer, the firm of Reeves
                           & Associates.

      July 22, 2003:       Richard Wilner, an attorney from
                           Reeves & Associates, sends a letter
                           to Guerrero requesting that Guerrero
                           forward the contents of Cavazos’s
                           file to Wilner.10

      August 4, 2003:      Statutory deadline for filing motion
                           to reopen pursuant to 8 U.S.C.
                           § 1229a(c)(7)(C)(i); Cavazos does
                           not file a motion to reopen at this
                           time.

      August 29, 2003:     DHS denies Cavazos’s request for an
                           extension of time in which to leave
                           the United States pursuant to the
                           voluntary departure order.

      September 3, 2003:   Cavazos’s last day to leave the
                           United   States  pursuant   to the
                           voluntary departure order; Cavazos
                           remains in the United States.

      September 9, 2003:   Immigration court first notified
                           that   Cavazos   had   retained   new
                           counsel   via   a   letter   from   a
                           different attorney from Reeves &
                           Associates,      Juliana     Butler,
                           accompanied by a completed Form
                           EOIR-28, requesting the court’s
                           permission to review the audio tapes

      10
        The immigration court did not receive a completed Form
EOIR-28 (Notice of Entry of Appearance as an Attorney) for Wilner
until December 1, 2003.

                                 -7-
                            of Cavazos’s removal proceedings.11

     September 15, 2003: Immigration    court forwards the
                         requested hearing tapes to Butler.

     December 1, 2003:      Immigration court receives a “Motion
                            to Reopen Removal Proceedings and
                            for a Stay of Removal; Motion for a
                            Change   of   Venue”   [hereinafter
                            “motion to reopen”], dated October
                            28, 2003 and signed by Orit Levit,
                            another attorney from Reeves &
                            Associates.12

     Cavazos filed the motion to reopen in order to pursue her

application for adjustment of status under 8 U.S.C. § 1255,

claiming that Guerrero’s ineffective assistance had substantially

prejudiced her case by requesting a grant of voluntary departure

rather than a continuance.     Cavazos further argued that

Guerrero’s waiver of her appeal rights compounded the error and

potentially exposed Cavazos to civil penalties under 8 U.S.C.

§ 1229c(d), including the ten-year period during which she would

be ineligible to apply for adjustment of status if she did not

leave the United States on her designated voluntary departure

date.     Based on these claims, Cavazos requested that the IJ

equitably toll the statutory ninety-day period within which an

     11
        Butler also sent a letter, dated August 11, 2003, to
Guerrero again asking her to turn over Cavazos’s file. Guerrero
apparently never responded to any request to turn over the file.
     12
        Cavazos makes no effort to explain, and the record does
not show, the reason for the approximately one-month discrepancy
between the date on the motion itself and the date it was
received by the immigration court. Further, the immigration
court did not even receive a completed Form EOIR-28 for Levit
until January 15, 2004.

                                  -8-
alien may file a motion to reopen under 8 U.S.C.

§ 1229a(c)(7)(C)(i).

     On March 29, 2004, relying on the factors in Matter of

Velarde, 23 I&N Dec. 253 (BIA 2002),13 the IJ denied the motion

to reopen.   First, the IJ found that the motion was not timely

filed within ninety days of entry of a final administrative order

of removal, deportation, or exclusion.   In refusing to equitably

toll the ninety-day filing limitation based on the allegedly

ineffective assistance of counsel of Guerrero, the IJ noted that

Cavazos had shown no dissatisfaction with the representation at

the time the voluntary departure order was issued on May 6, 2003.

Moreover, the IJ determined that Cavazos had failed to justify

the lengthy delay in filing the motion to reopen on December 1,

2003--more than four months after she first hired a new lawyer

and nearly three months after the voluntary departure date had

passed.   Therefore, although the IJ found that Cavazos had met

the procedural requirements for making a claim of ineffective

assistance of counsel under Matter of Lozada, 19 I&N Dec. 637

     13
        Under Matter of Velarde, 23 I&N Dec. at 254, a motion to
reopen may be granted to provide an alien an opportunity to
pursue an application for adjustment of status where the
following factors are present: (1) the motion is timely filed;
(2) the motion is not numerically barred by the regulations; (3)
the motion is not barred by Matter of Shaar, 21 I&N Dec. 541 (BIA
1996), or any other procedural grounds; (4) the motion presents
clear and convincing evidence indicating a strong likelihood that
the respondent’s marriage is bona fide; and (5) the Service
either does not oppose the motion or bases its opposition on
Matter of Arthur, 20 I&N Dec. 475 (BIA 1992). The IJ found
Cavazos had met the second and fifth factors under Velarde.

                                -9-
(BIA 1988),14 she had failed to demonstrate actual prejudice from

the representation.   Second, the IJ found that the motion to

reopen was barred by Matter of Shaar, 21 I&N Dec. 541 (BIA 1996),

because Cavazos had failed to depart the United States by her

designated voluntary departure date of September 3, 2003 without

demonstrating any “exceptional circumstances.”    The IJ noted that

the court “simply can not find a nexus between [Cavazos’s]

failure to comply with the granted order of voluntary departure,

and the representation provided by [Guerrero].”   R. at 60.

Accordingly, the IJ found that Cavazos had “willfully and

unlawfully” remained in the United States beyond the voluntary

departure period was therefore “statutorily ineligible for the

relief requested, that being a motion to reopen.”    Id.   Finally,

the IJ found that, even though Cavazos had submitted evidence

supporting the bona fide nature of the marriage, she had still

not provided the immigration court with an approved Form I-130 to

demonstrate that she had a visa immediately available.15


     14
        Under Lozada, 19 I&N Dec. at 639, a motion to reopen
alleging ineffective assistance of counsel must include: (1) an
affidavit by the respondent detailing the agreement with former
counsel; (2) evidence that the counsel has been informed of the
allegations leveled against him and that she has been afforded
the opportunity to respond; and (3) information whether a
complaint has been filed with the appropriate disciplinary
authorities. The respondent must also demonstrate actual
prejudice. Id. at 638.
     15
        For the same reasons, the court denied Cavazos’s motion
for a stay of removal. Given the denial of the motion to reopen,
the motion for a change of venue was also denied.

                               -10-
     On December 9, 2004, the Board of Immigration Appeals

(“BIA”) adopted and affirmed the decision of the IJ to deny the

motion to reopen because (1) the motion was untimely filed

pursuant to 8 C.F.R. § 1003.23(b); and (2) Cavazos had failed to

depart within the voluntary departure period.    Cavazos timely

petitioned this court for review of the BIA’s denial of her

motion to reopen.

                            II.   DISCUSSION

A.   Standard of Review

     As a general matter, motions to reopen removal proceedings

are disfavored.     Lara v. Trominski, 216 F.3d 487, 496 (5th Cir.

2000); see also INS v. Doherty, 502 U.S. 314, 323 (1992) (“This

is especially true in a deportation proceeding, where, as a

general matter, every delay works to the advantage of the

deportable alien who wishes merely to remain in the United

States.”).   We therefore review the BIA’s denial of a motion to

reopen under a “highly deferential” abuse-of-discretion standard.

Lara, 216 F.3d at 496; see also 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.’”     Efe, 293 F.3d at


                                  -11-
904 (citing Osuchukuwu v. INS, 744 F.2d 1136, 1141-42 (5th Cir.

1984)).

B.   Analysis

     Cavazos presents two principal arguments on appeal: (1) that

the BIA erred by not equitably tolling the ninety-day limitation

period for filing a motion to reopen based on Guerrero’s

allegedly ineffective assistance; and (2) that the BIA erred in

denying Cavazos’s motion to reopen based on her failure to leave

the United States pursuant to the voluntary departure order.     The

government responds that, even assuming the doctrine of equitable

tolling applies in this context, Cavazos did not show the

requisite due diligence in bringing her claim for ineffective

assistance of counsel to justify tolling the limitation period

under these circumstances.   The government also contends that

Cavazos failed to demonstrate any “exceptional circumstances”

that would excuse her remaining in the United States beyond the

scheduled voluntary departure date.

     1.   Equitable Tolling of Filing Period for Motion to Reopen

     Cavazos contends that Guerrero first rendered ineffective

assistance of counsel by failing to adequately prepare and pursue

Cavazos’s application for adjustment of status before her merits

hearing on May 6, 2003.   According to Cavazos, this problem was

compounded when Guerrero requested voluntary departure in lieu of

moving for a continuance, apparently hoping that DHS would


                               -12-
approve the pending Form I-130 before the voluntary departure

date passed.   Cavazos claims that these actions substantially

prejudiced her ability to adjust her status through her husband

under 8 U.S.C. § 1255 and thereby remain in the United States.

Cavazos also insists that Guerrero’s refusal to send Cavazos’s

new attorneys the case file further hampered her new attorneys’

ability to timely file the motion to reopen.   As a result,

Cavazos now argues that the ninety-day period should have been

equitably tolled because her new counsel did not actually become

aware of Guerrero’s ineffective assistance until reviewing the

audio tapes of the merits hearing following a request to the

immigration court on September 9, 2003.   See Iavorski v. INS, 232

F.3d 124, 134 (2d Cir. 2000) (noting, in the context of a motion

to reopen alleging ineffective assistance of counsel, that

“equitable tolling of a statute of limitations is permitted until

the fraud or concealment is, or should have been, discovered by a

reasonable person in the situation”).

     The government maintains that, even if equitable tolling

were available,16 the BIA did not abuse its discretion in

refusing to apply the doctrine under the circumstances in this


     16
        While acknowledging that this circuit has yet to decide
the issue, Cavazos notes that several of our sister circuit
courts have applied equitable tolling principles in this context
to accommodate claims of ineffective assistance of counsel under
certain circumstances. See, e.g., Riley v. INS, 310 F.3d 1253,
1258 (10th Cir. 2002); Socop-Gonzalez v. INS, 272 F.3d 1176, 1188
(9th Cir. 2001) (en banc); Iavorski, 232 F.3d at 134.

                               -13-
case.   The government contends that equitable tolling is

appropriate only when, despite all due diligence, a plaintiff is

unable to discover essential information bearing on the existence

of a claim.   See Pacheco v. Rice, 966 F.2d 904, 906-07 (5th Cir.

1992) (noting, in a Title VII case, that equitable tolling

imposes a “requirement of diligent inquiry” on the party seeking

this sort of relief).   Given the information available to Cavazos

during the nearly seven months between the date of the voluntary

departure order (May 6, 2003) and the date the motion to reopen

was finally filed with the immigration court (December 1, 2003),

the government argues that this is not the type of extraordinary

situation that warrants equitable tolling.

     Although equitable tolling depends upon the particular facts

and circumstances of each case, we have previously noted that the

doctrine should be employed only in “rare and exceptional

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

Cir. 2005).   The Supreme Court has previously discussed the

narrowly circumscribed nature of the equitable tolling doctrine:

     Federal courts have typically extended equitable relief
     only sparingly. We have allowed equitable tolling in
     situations where the claimant has actively pursued his
     judicial remedies by filing a defective pleading during
     the statutory period, or where the complainant has been
     induced or tricked by his adversary’s misconduct into
     allowing the filing deadline to pass. We have generally
     been much less forgiving in receiving late filings where
     the claimant failed to exercise due diligence in
     preserving his legal rights.

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)


                               -14-
(internal footnotes omitted); see also Rashidi v. Am. President

Lines, 96 F.3d 124, 128 (5th Cir. 1996) (noting that a “garden

variety claim of excusable neglect does not support equitable

tolling”) (internal quotation marks omitted); Jinks v. Mays, 464

F.2d 1223, 1227 (5th Cir. 1972) (quoting the oft-cited maxim that

“equity aids the vigilant”).

     Assuming that equitable tolling is available in this

context,17 we conclude that the BIA did not abuse its discretion

in affirming the finding of the IJ that Cavazos had failed to

show the requisite due diligence to warrant equitable tolling of

the period during which an alien may timely file a motion to

reopen.   In denying the motion to reopen, the IJ specifically

stated that, although Cavazos had met the procedural requirements

for filing a motion to reopen claiming ineffective assistance of

counsel under Lozada, she had failed to demonstrate any actual

prejudice from the Guerrero’s representation.   This finding is

wholly consistent with our case law requiring a showing of

“substantial prejudice” to prove a claim of ineffective

assistance of counsel.   See De Zavala v. Ashcroft, 385 F.3d 879,


     17
        In an unpublished decision, we previously discussed “the
discord among the circuits as to equitable tolling of statutory
deadlines for ineffective assistance of counsel in immigration
cases.” Panova-Bohannan v. Gonzales, 157 F. App’x 706, 707-08
n.6 (5th Cir. 2005) (unpublished decision) (concluding that the
BIA had not abused its discretion in finding that the alien had
failed to exercise due diligence to justify equitably tolling the
limitations period for filing her motion to reopen based on
allegations of ineffective assistance of counsel).

                               -15-
883 (5th Cir. 2004) (noting that “an alien must make an initial

showing of substantial prejudice” to prevail on a claim of

ineffective assistance of counsel) (citing Anwar v. INS, 116 F.3d

140, 144 (5th Cir. 1997)); Miranda-Lores v. INS, 17 F.3d 84, 85

(5th Cir. 1994) (“To prevail on a claim of ineffective assistance

of counsel at a deportation proceeding, an alien must show (1)

ineffective representation and (2) substantial prejudice, which

occurred as a result of the ineffective representation.”)

(emphasis added).   Therefore, we agree with the BIA’s adoption

and affirmance of the IJ’s finding that Cavazos was unable to

sufficiently establish the necessary nexus between Guerrero’s

representation at the merits hearing on May 6, 2003, and the

nearly seven months that passed before her new lawyers finally

submitted the motion to reopen on December 1, 2003.

     Even assuming arguendo that Guerrero had rendered

ineffective assistance at the merits hearing, Cavazos’s failure

to file the motion to reopen until nearly three months after the

voluntary departure date had passed does not demonstrate the sort

of due diligence and exceptional circumstances necessary to

invoke the equitable tolling doctrine.   See English, 400 F.3d at

275; Oliveira v. Gonzales, 127 F. App’x 720, 723 (5th Cir. 2005)

(declining to equitably toll the statutory limitations period for

filing a motion to reopen based on ineffective assistance of

counsel because the alien was represented by different counsel by

the time the BIA affirmed the IJ’s decision not to reopen the

                               -16-
proceeding); Panova-Bohannan, 157 F. App’x at 707 (concluding

that the BIA had not abused its discretion in refusing to

equitably toll the limitations period for filing a motion to

reopen alleging ineffective assistance of counsel where the alien

failed to demonstrate “due diligence during the interstitial

period after the passing of the deadline”).   In light of these

circumstances, we conclude that the BIA did not abuse its

discretion in denying the motion to reopen as untimely.18

     2.   Failure to Leave Pursuant to Voluntary Departure Order

     Finally, Cavazos similarly argues that the alleged

ineffective assistance of counsel constituted an “exceptional

circumstance” that allowed her to file the untimely motion to

reopen despite her failure to leave the United States by the date

specified in the voluntary departure order.   Again, Cavazos

attributes the lengthy delay in filing the motion to reopen to

the allegedly ineffective assistance of Guerrero at the merits

     18
        Furthermore, even if additional information was needed
to substantiate the ineffective assistance claim under Lozada, we
fail to see why her new counsel waited to request permission to
review the audio tapes of her removal proceedings until September
9, 2003--six days after her scheduled date of voluntary departure
had passed and nearly two months after first being retained by
Cavazos. Cf. United Klans of Am. v. McGovern, 621 F.2d 152, 155
(5th Cir. 1981) (concluding that a claim was time-barred for want
of due diligence and noting that plaintiffs are “chargeable with
knowledge of the contents of public records”). At the very
least, when DHS denied Cavazos’s request for extending the
voluntary departure date on August 29, 2003, her new lawyers
should have realized that failing to submit the motion to reopen
before the impending voluntary departure date could expose
Cavazos to the statutory civil penalties under 8 U.S.C.
§ 1229c(d)(1).

                              -17-
hearing on May 6, 2003 in requesting voluntary departure, rather

than a continuance, to pursue adjustment-of-status relief.     The

government responds that the plain language of 8 U.S.C.

§ 1229a(e)(1) narrowly defines the range of “exceptional

circumstances” as “battery or extreme cruelty to the alien or any

child or parent of the alien, 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.”     The

government maintains that Cavazos’s effort to bring her claim for

ineffective assistance of counsel does not fall within this class

of “exceptional circumstances.”   Therefore, the government

contends that the adjustment-of-status relief she seeks is no

longer available to her.

     Once the voluntary departure date has passed, an alien is

subjected to the statutory bar from certain forms of relief,

including adjustment of status.   See 8 U.S.C. § 1229c(d)(1).      By

waiting until December 2003 to file the motion to reopen,

Cavazos’s new attorneys exposed their client to the serious

consequences of 8 U.S.C. § 1229c(d)(1) from staying past the

scheduled date of voluntary departure and relied on narrowly

construed principles of equity to excuse this delay.   For

substantially the reasons set forth in the IJ’s opinion, we have

already determined that the equities present in this case do not

favor tolling the limitations period for the motion to reopen; we

therefore decline to excuse Cavazos’s failure to leave the United

                              -18-
States pursuant to the clear terms of the voluntary departure

order.   Accordingly, we conclude that the BIA did not abuse its

discretion in dismissing Cavazos’s appeal for failure to file her

motion to reopen before the scheduled voluntary departure date.

                         III.   CONCLUSION

     For the foregoing reasons, we DENY the petition for review.




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