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


10-13-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3827




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                                                  NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                   __________

                       No. 04-3827
                       __________

                  DANIA WILLIAMS,

                                     Petitioner

                            v.

   ATTORNEY GENERAL OF THE UNITED STATES;
BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES,

                                      Respondent.
                       __________

         On Petition for Review of an Order of the
          Immigration and Naturalization Service
             Board of Immigration Appeals
                  (BIA No. A77-635-072)
                        __________

       Submitted Under Third Circuit L.A.R. 34.1(a)
                  September 26, 2005
                        __________

 Before: RENDELL, FUENTES, and GARTH, Circuit Judges

                (Filed: October 13, 2005)
                         __________
                                      ____________

                                        OPINION
                                      ____________


RENDELL, Circuit Judge:

       Petitioner Dania Williams seeks review of an order of the Board of Immigration

Appeals (“BIA”) affirming an Immigration Judge’s denial of her motion to reopen

removal proceedings. Williams argues that her proceedings should be reopened due to

the ineffective representation of her previous counsel. We will deny the petition for

review.

I. Facts and Procedural History

       Williams entered the United States on March 4, 1997, remained in the country

beyond the date she was authorized to do so, and, in 1999, married a United States

citizen. In February 2000, Williams filed a Form I-485, Application to Register

Permanent Residence or Adjust Status, and her husband filed a Form I-130, Petition for

Alien Relative. For reasons not clear, Williams’ husband withdrew his petition the day he

was to be interviewed by the United States Citizenship and Immigration Services

(“USCIS”). Williams’ application was therefore denied and she was placed in removal

proceedings. In June 2001, her husband renewed his Petition for Alien Relative. A

second interview was scheduled and, once again, he withdrew his petition at the USCIS

interview.



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       After the second failed attempt to register as a permanent resident, Williams was

informed by her attorney that her only option was to seek voluntary departure at her

removal hearing. He did not advise Williams that she could file a Form I-360 as a Self-

Petitioning Abused Spouse of a United States Citizen. The Immigration Judge granted

Williams’ request for voluntary departure on October 18, 2001, permitting her to remain

in the country until February 15, 2002. At that time, Williams expressly waived her right

to appeal the Immigration Judge’s order.

       After the removal hearing, Williams sought new counsel. On February 15, 2002,

she filed a Form I-360 as a Self-Petitioning Abused Spouse of a United States Citizen and

her petition was approved on October 9, 2002. Williams did not file a motion to reopen

her removal proceedings until March 13, 2003, at which time she argued that her

proceedings should be reopened due to the ineffective assistance of her previous counsel

and her new eligibility for adjustment of status based on the approved I-360 petition. The

Immigration Judge denied her motion on the grounds that it was filed more than ninety

days after the final removal order. The BIA affirmed on the same grounds.

II. Jurisdiction and Standard of Review

       This Court has jurisdiction to review the BIA’s order under 8 U.S.C. § 1252(a).

The Court reviews the denial of a motion to reopen for abuse of discretion, with “broad

deference” to the BIA’s decision. Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.

2003). Reversal is appropriate only if the BIA’s decision was “arbitrary, irrational, or



                                             3
contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).

III. Discussion

       A claim of ineffective assistance of counsel is a valid basis for a motion to reopen

proceedings before an immigration court under certain circumstances. Lu v. Ashcroft,

259 F.3d 127, 132 (3d Cir. 2001); Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). An

alien must file a motion to reopen proceedings before the Immigration Judge no later than

ninety days after the date on which the final administrative decision was rendered.

8 C.F.R. § 1003.23(b)(1). Furthermore, an alien is permitted to file only one motion to

reopen proceedings. Id. In the instant case, the Immigration Judge granted Williams

voluntary departure on October 18, 2001. Because Williams waived her right to appeal,

the order was final at that time. 8 C.F.R. § 1003.39. Yet, Williams did not file a motion

to reopen proceedings until March 2003, more than a year after the Immigration Judge

issued its order. Thus, it would appear the motion was untimely and should have been

denied.

       Williams argues that the principle of equitable tolling extends the ninety-day

deadline for her motion. Equitable tolling permits a filing requirement to be tolled when

a party has “been prevented from filing in a timely manner due to sufficiently inequitable

circumstances.” Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir.

1999). Courts must use equitable tolling cautiously, id., and not apply the doctrine when

it is inconsistent with congressional intent, Longenette v. Krusing, 322 F.3d 758, 767



                                             4
(3d Cir. 2003). In particular, equitable tolling cannot be applied to a time limitation that

is “jurisdictional.” Borges v. Gonzales, 402 F.3d 398, 405 (3d Cir. 2005). Even where

equitable tolling does apply, parties asserting it must use “due diligence” to preserve their

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

States, 404 F.3d 744, 751 (3d Cir. 2005).

       Courts of appeals for other circuits have held that the ninety-day filing requirement

of 8 C.F.R. § 1003.23(b)(1) is non-jurisdictional and can therefore be tolled to

accommodate claims of ineffective assistance of counsel. Iavorski v. INS, 232 F.3d 124,

134 (2d Cir. 2000); Varela v. INS, 204 F.3d 1237, 1240 (9th Cir. 2000); cf. Borges, 402

F.3d at 406 (holding that the 180-day time limitation for a motion to reopen removal

orders entered in absentia “is more appropriately considered as analogous to a statute of

limitations and, thus, subject to equitable tolling”). This Court has not ruled on whether 8

C.F.R. § 1003.23(b)(1) is non-jurisdictional, and the facts of this case make it

unnecessary for us to do so here. Williams argues that the ninety-day filing requirement

should have been tolled between October 18, 2001 and February 15, 2002, when she was

unaware that counsel had provided her ineffective representation. Furthermore, she

claims that the filing requirement should have been tolled while her I-360 petition was

pending between February 15, 2002 and October 9, 2002. Assuming, without so holding,

that Williams is correct in her assertion that equitable tolling applies from October 18,

2001 to October 9, 2002, it is clear that the doctrine does not apply after that time and that



                                              5
her motion to reopen proceedings was therefore still untimely.

       Williams did not ultimately file her motion until March 13, 2003, more than five

months after her I-360 petition was granted. The explanation she provides for this delay

was that it was needed so her new counsel could investigate the ineffective assistance

claim. She also argues that reliving the abuse of her husband made it difficult for her to

act quickly on the motion. Finally, she claims that, because she could only file one

motion to reopen proceedings, she needed time to gather “every possible shred of

evidence in support of [her] motion.” (Pet. Br. 24.) Thus, Williams believes that she

used reasonable diligence under the circumstances and that the ninety-day deadline

should have been tolled to permit her to file the motion.

       This Court sympathizes with the plight of Williams. It is clear that she has

received poor counsel throughout these proceedings, a fact that the BIA also recognized.

Yet, she has provided no valid argument for tolling the ninety-day filing requirement

between the time her I-360 petition was approved in October 2002 and the time she

actually sought to reopen proceedings in March 2003. Given that Williams and her

counsel had long been aware of previous counsel’s mistakes by that point, and that her I-

360 petition for had been approved for months, it was reasonable to expect her to file a

motion to reopen proceedings within the ninety-day time limit. The fact that only one

motion to reopen proceedings is permitted under 8 C.F.R. § 1003.23(b)(1) is no

justification for a party failing to act within the prescribed time. The doctrine of equitable



                                              6
tolling must be applied cautiously, Seitzinger, 165 F.3d at 240, and the BIA did not abuse

its discretion when it determined that the circumstances for its application were not

present here. We will therefore DENY the petition for review.

_____________________




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