                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 10-1289
                                  ___________

                             SHAHER ALZAARIR,
                                 Petitioner

                                        v.

              ATTORNEY GENERAL OF THE UNITED STATES,
                               Respondent
                 ____________________________________

                      Petition for Review of an Order of the
                       United States Department of Justice
                          Board of Immigration Appeals
                           (Agency No. A095-820-824)
                  Immigration Judge: Honorable Annie S. Garcy
                   ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                February 9, 2011

     Before: RENDELL, JORDAN AND VAN ANTWERPEN, Circuit Judges

                        (Opinion filed February 25, 2011 )
                                  ___________

                           OPINION OF THE COURT
                                ___________

PER CURIAM

    Shaher Alzaarir, a Palestinian citizen who was born in the West Bank when it was
under Jordanian control, 1 entered the United States in 2001 as a visitor. In October 2002,

the Government charged Alzaarir with removability for overstaying his visa. Alzaarir

conceded the charge, and through his attorney, Yasser Helal, he sought asylum,

withholding, and protection under the Convention Against Torture. In September 2003,

the IJ denied his applications and ordered Alzaarir removed to Jordan. Alzaarir, still

represented by Helal, appealed to the Board of Immigration Appeals (“BIA”). On

December 27, 2004, the BIA affirmed without opinion the IJ’s decision. The BIA

granted Alzaarir 30 days in which to depart voluntarily.

       Meanwhile, in May 2004, Alzaarir married a United States citizen and moved to

Seattle from Pennsylvania. On advice from Helal and an attorney in Seattle, he filed

Forms I-130 (Visa Petition), I-485 (Application to Adjust Status), and I-765 (Application

for Employment Authorization). He also faxed copies of the I-130 and I-485 forms to

Helal so that he could “close out the asylum case.” In January 2005, Alzaarir received his

work permit; around the same time, he received notice to appear for an interview about

his marriage. In February 2005, when Helal advised him that he risked arrest if he went

to the interview, Alzaarir called the BIA’s automated number and learned of the BIA’s

December 2004 decision. Alzaarir and his wife went to the interview on March 31, 2005,

where the visa petition was approved.


1
 Although the Notice to Appear charged Alzaarir as a native and citizen of Jordan, and
the Immigration Judge (“IJ”) referred to him as possibly stateless, Alzaarir testified that

                                              2
       On March 25, 2005, Helal submitted a motion to reopen to the BIA on Alzaarir’s

behalf. On May 17, 2005, the BIA denied the motion for the failure to make a prima

facie showing of eligibility for relief. The BIA noted that Alzaarir did not submit an I-

485. The BIA also held that Alzaarir was barred from adjusting his status because he did

not voluntarily depart before the deadline to do so, January 26, 2005 (and he did not file

his motion to reopen before then, either). In a footnote, the BIA noted that although Helal

submitted the motion, he did not enter an appearance, so the BIA treated Alzaarir as

proceeding pro se. The BIA mailed the decision to an address in Brooklyn where

Alzaarir lived before moving to Pennsylvania, R. 80, although the BIA had previously

mailed a notice in the reopening proceedings to Alzaarir’s former Pennsylvania address,

R. 109. (Alzaarir states that he sent a letter to the BIA informing him of his new Seattle

address, but he does not describe the official change of address form and none appears in

the record from that time period).

       In June 2005, Alzaarir received a letter ordering him to report for removal. He

then hired a new attorney, Eric Lin, to reopen his asylum case. In his brief, Alzaarir states

that Lin worked to reopen his case “proceeding on representations from the DHS

[Department of Homeland Security] attorneys that DHS would agree to reopening as long

as the background checks were clear.” Petitioner’s Brief 10. However, in the agency,

Alzaarir described Lin’s work as tenacious but ultimately unsuccessful attempts over


he is a Palestinian citizen, and both parties describe him this way in their briefs.
                                               3
three years to get an agreement to joint reopening. R. 30. Alzaarir also argued before the

agency that “evidence shows that the DHS trial attorneys in New York agreed to the

motion to reopen, contingent on background checks being favorable.” Id. However, the

evidence provided was a December 26, 2007 e-mail from Lin with the subject “joint

motion status?” and a message that Lin had not heard from DHS attorney David Cheng

“regarding this matter” and asking him to let him know the reason for the delay. R. 97.

Lin also stated in his e-mail that Cheng’s “last word on this was that you would agree to

reopen some background checks.” Id. Cheng wrote back on December 7, 2007,

apologizing for not getting back to Lin sooner, and stating that “things with the

background check are just taking a little longer than expected.” Id. He also told Lin, “I

will stay on top of it and advise you as soon as we have some sort of resolution.” Id.

       In May 2007, Immigration and Customs Enforcement officers arrested Alzaarir.

He was detained until he was released under an order of supervision in August 2007.

Thereafter (in his brief, Alzaarir gives the date as August 2008, but he did not provide a

date to the agency), Alzaarir hired his present counsel to pursue the joint motion to

reopen. Counsel tried to get DHS to agree to a joint motion to reopen until March 2009,

when DHS stated that it would not join in the motion.

       On August 10, 2009, Alzaarir, through his current counsel, filed his second motion

to reopen, alleging ineffective assistance of Helal. Alzaarir alleged that Helal (1) filed a

deficient appeal brief with the BIA; (2) failed to file a motion to remand based on

                                              4
Alzaarir’s marriage; (3) failed to file a motion to reopen before the end of the voluntary

departure period; (4) failed to notify Alzaarir that his agency appeal had been dismissed;

and (5) filed a deficient motion to reopen with the BIA. Alzaarir also stated that he

substantially complied with the requirements of Matter of Lozada, 19 I. & N. Dec. 637

(BIA 1988). He sought equitable tolling of the time and number limitations on motions to

reopen. He also argued that the BIA should exercise its authority to reopen the

proceedings sua sponte.

       The BIA denied Alzaarir’s motion as time- and number-barred. The BIA held that

Alzaarir failed to show that he had acted with the reasonable diligence necessary for an

award of equitable tolling. The BIA highlighted the fact that, in June 2005, Alzaarir

learned that he had been ordered removed, became “skeptical” of Helal’s advice, and

hired Lin. The BIA noted that no claim of ineffective assistance was made against Lin,

who tried without success for three years to persuade DHS to file a joint motion to

reopen. The BIA also observed that Alzaarir did not reveal when he consulted with his

current counsel. However, the BIA noted, DHS notified counsel in March 2009 that it

would not join in a joint motion, but the motion to reopen was not filed until August 10,

2009. The BIA also declined to reopen the proceedings sua sponte.

       Alzaarir submits a petition for review of the BIA’s decision. We have jurisdiction

pursuant to 8 U.S.C. § 1252(a). Review of the BIA’s decision to deny a motion to reopen




                                             5
is under a highly deferential abuse of discretion standard.2 See Guo v. Ashcroft, 386 F.

3d 556, 562 (3d Cir. 2004). The discretionary decision is not disturbed unless it is found

to be arbitrary, irrational, or contrary to law. See id.

       We will deny the petition for review because we cannot say the BIA’s decision

was arbitrary, irrational, or contrary to law. An alien faces number and time limitations

on filing motions to reopen. Generally, an alien may file only one motion to reopen. See

8 U.S.C. § 1229a(c)(7)(A) (listing an exception not relevant here). Also, most motions to

reopen must be filed no later than 90 days after the date of the final administrative

decision. See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). Alzaarir presented his

second motion to reopen to the BIA more than four and a half years after the BIA

affirmed the IJ’s order in his case.

       The time limit for filing a motion to reopen is subject to equitable tolling, and

perhaps the numerical limit is as well. See Borges v. Gonzales, 402 F.3d 398, 406 (3d

Cir. 2005); Luntungan v. Attorney Gen. of the United States, 449 F.3d 551, 557 & n.15

(3d Cir. 2006). Ineffective assistance of counsel can serve as a basis for equitable tolling

if substantiated and accompanied by a showing of due diligence. See Mahmood v.


2
  We do not consider the BIA’s decision not to reopen the proceedings sua sponte. First,
it does not appear that Alzaarir challenges that decision. Second, in any event, that
decision is a discretionary decision beyond our jurisdiction. See Calle-Vujiles v.
Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003) (“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

                                               6
Gonzales, 427 F.2d 248, 252 (3d Cir. 2005). Due diligence must be exercised over the

entire period for which tolling is desired. See Rashid v. Mukasey, 533 F.3d 127, 132 (2d

Cir. 2008). “This includes both the period of time before the ineffective assistance of

counsel was or should have been discovered and the period from that point until the

motion to reopen is filed.” Id.

         Alzaarir requested tolling because of Helal’s alleged ineffectiveness, which he

discovered in June 2005, years before he filed his second motion to reopen. At that point,

when he realized he had been ordered removed, he did hire another attorney, Lin.

However, Lin, against whom Alzaarir has not made any allegations of ineffective

assistance of counsel, did not file a motion to reopen. Lin may have tried to persuade

DHS to agree to a joint motion to reopen to avoid the time and number limitations on

motions to reopen, see 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(3)(iii).

However, an alien who delays filing a motion to reopen, while awaiting DHS’s response

to his counsel’s request to file a joint motion to reopen, until the deadline is past generally

is not entitled to equitable tolling. See Valeriano v. Gonzales, 474 F.3d 669, 670 (9th Cir.

2007).

         Alzaarir argues in his brief that he was not merely waiting for a response to his

request like the alien in Valeriano. He argues that he was exercising diligence because he

was relying on representations from DHS that it would join in a motion to reopen if his


reopen or reconsider the case.”)
                                               7
background checks did not reveal anything negative.3 He states that evidence in the

record supports his claim. However, the BIA was not presented with proof of a

conditional promise of a joint motion. As we described in more detail above, Alzaarir

informed the BIA that Lin worked hard to get an agreement but was ultimately

unsuccessful. In the agency, he also stated he had evidence of an agreement, but the

evidence he presented – the e-mail exchange between Lin and Cheng from December

2007 – did not show that an agreement had been reached. Furthermore, the BIA

considered that even when DHS informed Alzaarir’s current counsel that DHS would not

join a joint motion, it was not until several months later that Alzaarir filed his second

motion to reopen.

       Given the record in this case, the BIA did not abuse its discretion in concluding

that Alzaarir did not exercise the diligence necessary to win equitable tolling and in

consequently denying his motion to reopen. Accordingly, we will deny the petition for

review.




3
  The Government asks us not to consider an argument for tolling based on reliance
because it was not presented to the agency. We consider the argument only in the context
it was and is presented, namely, as support for diligence under the circumstances.

                                              8
