                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 02-2078



OGADINMA AKWADA,

                                                           Petitioner,


           versus

JOHN ASHCROFT, Attorney General,

                                                           Respondent.


On Petition for Review of an Order of the Board of Immigration
Appeals. (A73-176-178)


Argued:   June 4, 2004                  Decided:     November 10, 2004


Before GREGORY and DUNCAN, Circuit Judges, and Robert R. BEEZER,
Senior Circuit Judge of the United States Court of Appeals for the
Ninth Circuit, sitting by designation.


Petition denied by unpublished per curiam opinion.       Judge Duncan
wrote a dissenting opinion.


ARGUED: Danielle L. C. Beach-Oswald, NOTO & OSWALD, P.C.,
Washington, D.C., for Petitioner.     Arthur Leonid Rabin, Civil
Division, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF:
Robert D. McCallum, Jr., Assistant Attorney General, Civil
Division, Margaret J. Perry, Senior Litigation Counsel, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
PER CURIAM:

     Ogadinma   Akwada   petitions       for   review   of   the   Board   of

Immigration Appeals’s (“BIA”) denial of his motion to reopen

removal proceedings for failure to adhere to the numerical and time

limitations on motions to reopen set forth in 8 C.F.R. § 1003.2

(2003).1   Akwada contends that because he did not receive the

statutorily prescribed notice of the removal proceedings, he is

entitled to a motion to reopen that is not time or number-barred.

Alternatively, Akwada argues that even if his motion to reopen is

subject to time or number limits, those limits should be equitably

tolled or waived because of the ineffectiveness of his former

counsel.   He asserts that his former counsel’s ineffectiveness

caused him to miss his asylum interview and his removal hearing and

caused him to file useless and legally insufficient motions to

reopen, squandering his opportunity to challenge removal.            Akwada

asks us to direct the BIA to consider his most recent motion to

reopen to consider his application for adjustment of status based

on his marriage to a naturalized United States citizen. Finding no

reversible error or circumstances justifying equitable relief, we

deny the petition for review.




     1
      8 C.F.R. § 3.2 was renamed 8 C.F.R. § 1003.2 in 2003. The
content of the regulation is the same today as when the BIA
adjudicated Akwanda’s motion to reopen in 2002.

                                     3
                                 I

     Akwada, a native and citizen of Nigeria, entered the United

States on or about January 15, 1992.     He applied for asylum and

withholding of removal on March 10, 1993.    Akwada married a legal

permanent resident of the United States on August 30, 1994, and his

wife became a naturalized United States citizen in 1998.

     On February 10, 1994, Akwada retained attorney Emmanuael Akpan

to help him withdraw his asylum application and pursue adjustment

of status based on his upcoming marriage to a legal permanent

resident of the United States.       Akpan should have submitted a

Notice of Appointment of Representative form to the INS shortly

after Akwada retained him.   See 8 C.F.R. § 292.4   Akwada asserts,

and the record reflects, that Akpan did not file an Appointment of

Representative form until over five years later, in June 1999.

     In August 1997, Akwada’s address changed.      Akwada did not

personally report the change of address to the Immigration and

Naturalization Service (“INS” or “Service”).2   Akwada asserts that

he relied on Akpan’s assurance that he, Akpan, would submit the new

address information to the Service. Akpan never submitted Akwada’s


     2
      At the time of the events covered by this petition for review,
the agency in charge of immigration matters was the INS. On March
1, 2003, the INS ceased to exist as an agency within the Department
of Justice and its functions were transferred to the Department of
Homeland Security. See Homeland Security Act of 2002, Pub. L. NO.
107-296, 110 Stat. 2135 (Nov. 25, 2002).          For the sake of
simplicity, this opinion will continue to refer to the INS or “the
Service” as the central agency actor.

                                 4
new address to the Service. Nor did Akpan withdraw Akwada’s asylum

application, as Akwada had requested in 1994.

     Because the INS never received Akwada’s new address, he never

received notice of a November 3, 1998 asylum interview.       Akwada

failed to attend the interview.       The INS closed Akwada’s asylum

case and instituted removal proceedings against him.     On November

8, 1998, the INS sent a Notice to Appear (“NTA”) to Akwada’s

previous address.   The NTA set a January 13, 1999 removal hearing

date.   The notice was returned to the INS unopened.

     According to Akwada, Akpan never told him about the asylum

interview, the NTA, or the hearing date.        Normally, Akpan, as

counsel of record, would have received a copy of all notices and

written communications the INS sent to Akwada.    Since Akpan failed

to submit the Appointment of Representative form, he never received

the NTA or the hearing notice.

     Akwada failed to appear for the removal hearing on January 13,

1999 and was ordered removed in absentia.       According to Akwada,

attorney Akpan learned about the removal hearing by chance. Akwada

asserts that Akpan happened to be at the INS adjudicative office on

the day of Akwada’s removal hearing representing another client.

While at the INS office, Akpan saw Akwada’s name on the hearings

calendar and learned that he was in removal proceedings.

     On June 7, 1999, Akwada, still represented by Akpan, moved the

Immigration Judge to reopen proceedings and rescind the in absentia

removal order pursuant to 8 C.F.R. § 1003.23(b).      Akwada claimed

                                  5
that he had been unable to attend the removal hearing because of

“exceptional    circumstances,”3   specifically     a   medical   condition

requiring    “total incapacitation due to shortness of breath” and

his “doctor’s advice requiring full bed rest.” The motion included

a conclusory “Disability Certificate” from Akwada’s doctor as

justification for his absence.       It did not include an affidavit

from Akwada explaining why he missed the hearing or more detailed

information from Akwada’s physician explaining Akwada’s medical

condition.     The motion also asked the BIA to reopen deportation

proceedings to adjudicate Akwada’s application of adjustment of

status based on an April 13, 1999 approval of an I-130 petition

filed by his wife, then a recently naturalized United States

citizen.    See 8 C.F.R. § 1003.2.       The Immigration Judge denied the

motion because the moving papers did not contain an affidavit from

Akwada explaining his absence.           See 8 C.F.R. §§ 1003.2(c)(1).

Akwada’s first motion to reopen did not assert that Akwada lacked

actual notice of the hearing or that attorney Akpan failed to

submit an appropriate change of address notice to the INS.

     On June 15, 1999, Akwada, through attorney Akpan, moved for

reconsideration.     The motion enclosed an affidavit from Akwada

explaining that he was incapacitated on the date of his removal



     3
      “The term ‘exceptional circumstances’ refers to exceptional
circumstances (such as serious illness or death of the spouse,
child, or parent of the alien, but not including less compelling
circumstances) beyond control of the alien.”            8 U.S.C.
§ 1229a(e)(1).

                                     6
hearing.   The motion was denied.       The Immigration Judge concluded

that the motion was more properly construed as a second motion to

reopen, and should be denied because only one such motion was

permitted by statute. See 8 C.F.R. § 1003.2(c)(2). Alternatively,

the Immigration Judge reasoned that even the motion were construed

as one for reconsideration, the motion would be denied because it

(1) was untimely, and (2) failed to set forth errors of fact or

law, as required by 8 C.F.R. § 1003.2(b)(1).       Akwada appealed the

Immigration Judge’s denial of his second motion and, on February

20, 2001, the BIA denied Akwada’s appeal.        Akwada did not appeal

the BIA’s denial of his second motion to this court.

     Akwada then retained new counsel.         On May 18, 2001, Akwada

moved the BIA to reopen proceedings to permit him to adjust his

status to that of Legal Permanent Resident.         The BIA denied the

motion as time and number barred under 8 C.F.R. § 1003.2.

     Akwada appeals the denial of his May 2001 motion to reopen,

contending that the BIA abused its discretion when it denied the

motion.



                                II

     Generally, we have jurisdiction to review the BIA’s denial of

a motion to reopen under 8 U.S.C. § 1252.

     As a preliminary matter, the government correctly asserts that

we lack jurisdiction to review the BIA’s denial of Akwada’s first

two motions.   See id. at § 1252(b)(1) (a petition for review must

                                    7
be filed not later than 30 days after the date of the final order

of removal).   Our review is limited to the BIA’s August 23, 2002

denial of Akwada’s third motion, for which a petition for review

has been timely filed.   See id.4

     The government also contends that we lack jurisdiction to

review Akwada’s claims that he is entitled to a statutory and

regulatory exception to the time and number limits on motions to

reopen because he did not receive statutorily prescribed notice of

the removal hearing; that he is entitled to equitable relief from

any applicable time and number limits on motions to reopen; and

that he is eligible for asylum.     The government argues that Akwada

failed to exhaust his administrative remedies when he failed to

raise these issues before the BIA.        See id. at § 1252(d)(1);

Stewart v. INS, 181 F.3d 587, 596 (4th Cir. 1999).

     We conclude that we have jurisdiction to address one aspect of

Akwada’s notice argument.     In his motion, Akwada specifically

argued that because he did not receive oral notice of the time and

place of his removal hearing and the consequences of his failure to

attend, he is eligible to pursue relief in the form of adjustment

of status.   See 8 U.S.C. § 1229a(b)(7) (an alien who is deported in

absentia after receiving oral notice of the consequences of failure

to appear for removal proceedings along with written notice of the


     4
      The also government correctly contends that Akwada failed to
raise the issue of his eligibility for cancellation of removal in
his motion to the BIA. We lack jurisdiction to review that issue
on appeal. See 8 U.S.C. § 1252(d)(1).

                                    8
proceeding is ineligible for several forms of relief, including

cancellation of removal and adjustment of status, for a ten year

period).   We have jurisdiction to review this aspect of Akwada’s

motion.

     The government correctly asserts, however, that we do not have

jurisdiction    to    review   Akwada’s         argument   that    he   should   be

permitted to file a motion to reopen that is not time or number-

barred because he did not receive statutorily prescribed notice of

the removal hearing.       This argument is only relevant if Akwada’s

third motion can be construed as a motion to reopen removal

proceedings    to    rescind   his   in       absentia   removal   order.      Time

limitations on motions to reopen to rescind an in absentia order

may be waived if an alien did not receive statutorily prescribed

notice.    See 8 C.F.R. 1003.23(b)(4)(ii).               Akwada’s third motion,

over which we retain jurisdiction, cannot be construed as a motion

to reopen and rescind the removal order.             It asks only that the BIA

reopen proceedings in order to adjudicate Akwada’s adjustment of

status application.        It does not request that the BIA reopen

proceedings in order to rescind the in absentia removal order. Nor

does it cite to the statutory or regulatory provisions pertaining

to such motions.       Moreover, such a motion is properly made to an

Immigration Judge, not the BIA.               See 8 C.F.R. 1003.23.         We lack

jurisdiction to review whether Akwada was entitled to a motion to

reopen to rescind the removal order that was not time-barred under

8 C.F.R. 1003.23(b)(4)(ii).

                                          9
       The most difficult jurisdictional question is whether Akwada

adequately raised the equitable tolling issue in his motion to the

BIA.     Akwada did not use the words “equitable tolling” in his

motion to the BIA.        However, he did allege facts to support a claim

of equitable tolling and argued that his motion to reopen should be

granted     “based   on   all    the    equities.”      In   addition,    the    BIA

addressed     whether     ineffective      assistance   of   counsel     or   other

equitable considerations warranted reopening proceedings.                 We will

exercise     jurisdiction       to     review    Akwada’s    equitable    tolling

argument, but decline to invoke equitable tolling in this case.

       We   lack     jurisdiction        to     adjudicate    Akwada’s        asylum

application. We have jurisdiction to examine Akwada’s asylum claim

in the limited context of determining whether Akwada was prejudiced

by ineffective assistance of counsel, because his ineffective

assistance claim was sufficiently raised to the BIA.



                                          III

       Once Akwada was ordered removed in absentia, there were two

avenues of relief through which he could challenge the removal

order.

       First, he could move to reopen proceedings to request that an

Immigration Judge or the BIA rescind the removal order pursuant to

8 U.S.C. § 1229a(b)(5)(C).             Rescission of the removal order would

“annul from the beginning all of the determinations reached in the

in absentia hearing.”           See In re M-S-, 22 I. & N. Dec. 349 (BIA

                                          10
1998). The Service would then have to re-establish removability.

Id.   Akwada’s first two motions may be construed as motions to

reopen to rescind the in absentia removal order.       As discussed

above, we lack jurisdiction to review the first two motions.

Akwada’s third motion, at issue before this court, does not request

this form of relief.5

      Second, Akwada could move to reopen proceedings because “a new

question ha[d] arisen that require[d] a hearing.”    See In re M-S-,

22 I. & N. Dec. 349     A petitioner who seeks to reopen proceedings

on this basis need not first have the removal order rescinded.   Id.

      In Akwada’s case, his eligibility for adjustment of status

based on an approved I-130 relative visa petition and, arguably,

the ineffectiveness of his prior counsel constitute such new

questions.   Akwada is limited to filing one motion to reopen based

      5
      Even if we construed Akwada’s third motion to the BIA as
requesting rescission of the in absentia removal order, that motion
would be number-barred. An alien may file one motion to reopen to
rescind an absentia removal order.     8 C.F.R. 1003.23(b)(4)(ii).
That motion may be filed at any time where the alien demonstrates
that he did not receive statutorily prescribed notice. Id. Even
assuming that Akwada did not receive statutorily prescribed notice
and could have filed a motion to reopen in order to rescind the in
absentia removal order at any time, he is still limited to filing
only one such motion. See id.

     Akwada erroneously argues that his motion to reopen is not
subject to a number limit because he did not receive statutorily
prescribed notice of the removal proceedings. There is no number
limit on a motion to reopen to rescind an order entered in absentia
in deportation or exclusion proceedings if an alien does not
receive   statutorily    prescribed   notice.      See   8   C.F.R.
§ 1003.23(b)(4)(iii)(D). Akwada, however, was subject to removal
proceedings, to which stricter limits apply.           See id. at
§ 1003.23(b)(4)(ii).

                                  11
on new facts, and he was required to file that motion no later than

90 days after the date on which the final administrative decision

was rendered in his removal proceeding.   8 C.F.R. § 1003.2(c)(2).

Akwada’s third motion to the BIA, properly construed as a motion to

reopen to review new evidence pursuant to 8 C.F.R. § 1003.2(c), is

time-barred.   It was filed well past 90 days after the final order

or removal was entered.   See 8 C.F.R. § 1003.2(c)(2).6



                                 IV

     Akwada asserts that even if his motion to reopen is time or

number-barred, he is entitled to equitable tolling or waiver of any

time and number limits because of the ineffective assistance of his

formal counsel.    Specifically, Akwada contends that ineffective

assistance of counsel contributed to his failure to appear for both

his asylum interview and his removal hearing and caused him to file

useless motions, squandering his opportunity to effectively contest

the in absentia removal order.

     We need not reach the issue whether Akwada sufficiently

demonstrated ineffective assistance of counsel. See Matter of


     6
      Akwada also cites In re M-S-, 22 I. & N. Dec. 349 (BIA 1998)
to support his argument that he can move to adjust status without
the statutory time constraints because he never received oral
notice of the consequences of his failure to appear. In re M-S-
holds that an applicant ordered deported in absentia may file for
adjustment of status without meeting the requirements for a motion
to rescind an in absentia deportation order.      In re M-S- still
requires that the motion to reopen comply with the general time and
number requirements for motions to reopen based on new evidence, 8
C.F.R. §§ 1003.2 and 1003.23. Id.

                                 12
Lozada 19 I & N Dec. 637 (BIA 1992).          Even if the actions of

Akwada’s former counsel constituted ineffective assistance, we do

not consider equitable tolling appropriate under the facts of this

case.

       “Equitable tolling” is defined as:

       The doctrine that the statute of limitations will not bar
       a claim if the plaintiff, despite diligent efforts, did
       not discover the injury     until after the limitations
       period had expired.

BLACK’S LAW DICTIONARY 560 (7th ed. 1999).         Accord Holmberg v.

Armbrecht, 327 U.S. 392, 396 (1946).

       “As a general matter equitable tolling may, in the proper

circumstances, apply to excuse a plaintiff’s failure to comply with

the strict requirements of a statute of limitations.”          Harris v.

Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000).        Equitable tolling

is a “discretionary doctrine” that “does not lend itself to bright

line    rules.”    Id.     The   doctrine    has   been   applied   where

“extraordinary circumstances beyond [a claimant’s] control made it

impossible to file the claims on time.”        Id. (internal citation

omitted).

       The BIA did not abuse its discretion when it denied equitable

relief in this case. We have held that “any resort to equity must

be reserved for those rare instances where – due to circumstances

external to the party’s own conduct - it would be unconscionable to

enforce the limitation period against the party and gross injustice

would result.”    Harris, 209 F.3d at 325.   Our case law has declined


                                  13
to grant equitable relief in circumstances far more compelling than

these.   See Rouse v. Lee, 339 F.3d 238, (holding in a death penalty

case that counsel’s error in filing a habeas petition one day late

did not constitute an “exceptional circumstance” that warranted

equitable tolling”).7    Requiring the BIA to consider equitable

relief in this case would be inconsistent with our case law.     We

decline to equitably toll the time and number limits on motions to

reopen in this case or to fault the BIA for declining to do so.8



                                                    PETITION DENIED




     7
      Because we do not find equitable tolling appropriate in this
case, we need not reach the issue whether the statutory and
regulatory time and number bars on motions to reopen removal
proceedings are jurisdictional such that equitably tolling may
never be employed to overcome them. See Harris, 209 F.3d at 328.
     8
      We note that because Akwada never received oral notice of the
time and place of the proceedings and the consequences of failing
to attend a removal proceeding when he received the required
written notice, the BIA incorrectly determined that Akwada was
ineligible for adjustment of status for a ten-year period. See 8
U.S.C. § 1229a(b)(7); In re M-S-, 22 I. & N. Dec. 349. Because it
appears that Akwada is presumptively eligible for adjustment of
status based on his ten-year marriage to a United States citizen,
the government may join in a motion to reopen proceedings to
consider Akwada’s eligibility for adjustment of status. Such a
joint motion would not be time or number-barred.      See 8 C.F.R.
§1003.23(b)(4)(iv).

                                 14
DUNCAN, Circuit Judge, dissenting:

     I    respectfully     disagree     with      the   majority’s   proposed

disposition of this case.        I would address the merits of Mr.

Akwada’s ineffective assistance claim and find that the claim

equitably tolls the procedural bars preventing review of this

petition.    Therefore, I respectfully dissent.

     It is undisputed that Mr. Akwada married a legal permanent

resident of the United States in 1994 and that his wife became a

naturalized citizen in 1998.           As the majority recognizes, Mr.

Akwada is therefore presumptively eligible for an adjustment of

status based on his marriage.1         Mr. Akwada, however, cannot enjoy

the benefit of that presumption solely because of the ineffective

assistance of his former counsel.

     It is also undisputed that Mr. Akwada’s prior counsel: 1)

failed to file a Notice of Appointment of Representative Form with

the INS for five years, causing him to miss notice of important

developments in Mr. Akwada’s case; 2) failed to withdraw Mr.

Akwada’s application for asylum and file conditional residence

papers as requested by Mr. Akwada; and 3) failed to inform the INS

that Mr. Akwada had changed addresses, causing Mr. Akwada to miss

notices     of   asylum   interviews        and   removal   proceedings   and,

ultimately, to be ordered removed in absentia.




     1
      See Maj. Op. at 14, n. 8.

                                       15
      Most importantly, however, former counsel also squandered Mr.

Akwada’s initial opportunity to reopen proceedings by failing to

follow basic filing instructions for the requisite motions.                 The

time and numerical bars applicable to the instant petition to

reopen are the direct result of that ineffective assistance.                The

majority refuses to reach the merits of Mr. Akwada’s ineffective

assistance of counsel claim because he fails to satisfy these time

and numerical bars.         This refusal is logically flawed, however,

because Mr. Akwada’s ineffective assistance claim is founded on

this very failure.      Therefore, ignoring our duty to address that

failure here leaves Mr. Akwada with no forum to ever present the

merits of his claim--a claim which everyone acknowledges leaves him

“presumptively eligible” for a change in status.                   Therefore, I

would address the merits of Mr. Akwada’s ineffective assistance of

counsel claim.      Accord United States v. Breckenridge, 93 F.3d 132,

134   (4th   Cir.   1996)    (“[I]t   is   well-settled     that    ineffective

assistance    of    counsel    constitutes    cause   for    [defeating     the

procedural bar for] failure to raise an issue” in a §2255 habeas

proceeding.).

      In Matter of Lozada,         19 I & N Dec 637 (BIA 1988), the BIA

established the standard for a successful motion to reopen based on

ineffective    assistance     of   counsel.     First,    petitioner     should

include “an affidavit . . . that sets forth in detail the agreement

that was entered into with former counsel with respect to the

actions to be taken on appeal and what counsel did or did not

                                      16
represent to the respondent in this regard.” Id. at 639. Second,

“former counsel must be informed of the allegations and allowed the

opportunity to respond.”     Id.   Third, “if it is asserted that prior

counsel's handling of the case involved a violation of ethical or

legal    responsibilities,   the   motion   should   reflect    whether   a

complaint has been filed with appropriate disciplinary authorities

regarding such representation, and if not, why not.”           Id.

     In the instant petition arguing ineffective assistance of

counsel, Mr. Akwada has complied with these factors.2                He has

presented a copy of the agreement into which he entered with former

counsel, as well as his understanding of that agreement; he has

informed former counsel of the allegations against him and given

him an opportunity to respond; and he has filed a complaint against

former counsel with the Attorney Grievance Commission in Maryland.

     Under other circumstances demonstrating substantial hardship,

where the petitioners had substantially complied with the Lozada

requirements for establishing ineffective assistance of counsel,

this court has found that the Board of Immigration Appeals abused

its discretion in refusing to equitably toll the time and numerical



     2
       The Lozada requirements need not be rigidly enforced.
“Substantial compliance” with the factors will suffice when the
record demonstrates that an actual factual basis exists for a
legitimate complaint. Castillo-Perez v. I.N.S., 212 F.3d 518, 526
(9th Cir. 2000); see also Davies v. I.N.S., 10 Fed. Appx. 223, 224
(4th. Cir 2001)(per curiam)(unpublished) (finding procedural bars
equitably tolled because “[p]etitioners substantially complied with
the requirements set forth in Lozada for establishing . . .
ineffective assistance.”).

                                    17
requirements for the petition.      Davies v. I.N.S., 10 Fed. Appx.

223, 224 (4th. Cir 2001)(per curiam) (unpublished).           Based on

former counsel’s inexcusable negligence in this case, I would so

find here.    To hold otherwise provides Mr. Akwada with no avenue

through which to remedy the ineffective assistance or remedy the

extreme prejudice to which it has exposed him.             The majority

presents no countervailing considerations for its refusal to do

so.3

       Accordingly,   I   would   equitably   toll   the     procedural

requirements preventing adjudication of this claim and remand this

petition to the BIA so that it may consider the merits.

       I respectfully dissent.




       3
      At the end of its opinion, the majority notes that a motion
to reopen jointly filed by Mr. Akwada and the government would not
be subject to the time bars applicable in this case, and may be
advisable because Mr. Akwada is “presumptively eligible for
adjustment of status.”    Maj. Op. at 14, n. 8 (citing 8 C.F.R.
§ 1003.23(b)(4)(iv)). It is difficult to see, however, of what
comfort this should be to Mr. Akwada.      The majority does not
provide any indication that the government, having opposed Mr.
Akwada’s petition to reopen in this case, would join in a
subsequently filed petition. More fundamentally, the existence of
this potential avenue of relief does not absolve this court of its
responsibility to correct a proceeding “so fundamentally unfair
that [Mr. Akwada] was prevented from reasonably presenting his
case” through no fault of his own. Lozada v. I.N.S., 857 F.2d 10,
13 (1st. Cir. 1988) (internal quotation omitted).

                                  18
