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


5-23-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2124




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No: 04-2124

                          ANZHELIKA KHOLODILKINA,

                                                  Petitioner

                                             v.

                     ALBERTO GONZALES,* Attorney General
                         Of the United States of America

         *Substituted pursuant to Federal Rule of Appellate Procedure 43(c)(2)

                           On Petition for Review from an
                      Order of the Board of Immigration Appeals
                              (Board No. A73-548-880)

                      Submitted Under Third Circuit LAR 34.1(a)
                                    May 5, 2005

               Before: McKee, Smith and VanAntwerpen, Circuit Judges

                                 (Filed May 23, 2005)

                             OPINION OF THE COURT

MCKEE, Circuit Judge.

      Anzhelika Kholodilkina petitions for review of the March 25, 2004 decision of the

Board of Immigration Appeals denying her motion to reconsider an in absentia removal

order issued by the Immigration Judge on April 17, 2003 under 8 U.S.C. §
1229a(b)(5)(A). The Immigration and Naturalization Service (“INS”)1 charged

Kholodilkina with removability for having failed to comply with the conditions of her

nonimmigrant visa in violation of 8 U.S.C. § 1227(a)(1)(C)(i). For the reasons that

follow, we will deny Kholodilkina’s petition for review.

       Because we write only for the parties, we set forth only those facts necessary to our

discussion.

       The INS began removal proceedings against Kholodilkina after her application for

asylum was denied, and she was found removable as charged. When she failed to appear

for her September 30, 1999, immigration hearing, the IJ ordered her removed in absentia.

In March, 2003, almost three and a half years after the in absentia order of removal was

issued, Kholodilkina filed a motion with the IJ to reopen her removal proceedings to

apply for adjustment of status. Kholodilkina claimed that she was provided ineffective

assistance of counsel during her previous hearing. The IJ denied the motion and the BIA

dismissed Kholodilkina’s appeal.

       The BIA held that 8 U.S.C. § 1229a(b)(5)(c) precluded any relief for Kholodilkina

because she did not file her motion to reopen “within 180 days after the date of the order

of removal.” The BIA concluded that “the language of [§ 1229a(b)(5)(c)] regarding the

time limit within which a motion to reopen must be filed is clear on its face and



       1
        On March 1, 2003, the INS ceased to exist and its functions were transferred to
the Department of Homeland Security. However, at the time of the proceedings in this
case, the agency was still the INS and will be referred to as such here.

                                             2
unambiguous, and the statute contains no exceptions to this time bar . . . . the legislative

history demonstrates that the 180-day limit reflects congressional intent to bring finality

to in absentia deportation (or removal) proceedings.”

       Kholodilkina contends that the BIA should have equitably tolled 8 U.S.C. §

1229a(b)(5)(C)’s 180-day time limit because she did not find out about the in absentia

order of removal until more than two years after the order due to the ineffective assistance

of her original counsel. The BIA rejected Kholodilkina’s contention, stating:

              It does not appear that the Third Circuit has previously
              addressed the issue of whether the 180-day period for filing a
              motion to reopen should be equitably tolled where the
              petitioner alleges that ineffective assistance of counsel caused
              the delay in filing such a motion.


       However, after the BIA issued its opinion, we addressed the issue in Borges v.

Gonzales, 402 F.3d 398, 401, 406 (3d Cir. 2005). There, we held that § 1229a(b)(5)(C)’s

“180-day time limitation can be equitably tolled,” since this “time limitation is more

appropriately considered as analogous to a statute of limitations.” However, Borges

allowed such tolling based upon allegations of fraud, not ineffective assistance of

counsel. Id. at 406. Indeed, we noted in Borges that, in Bejar v. Ashcroft, 324 F.3d 127

(3d Cir. 2003), we “essentially . . . held” that ineffective assistance of counsel is not an

exception to the 180-day period set forth in § 1229a(b)(5)(c). Borges, 402 F.3d at 406.

Nevertheless, we noted in Bejar that one commentator has proposed drawing a distinction

between attorney misfeasance and nonfeasance, “and allowing misfeasant (or actively

                                               3
misleading) ineffective assistance to constitute an ‘exceptional circumstance’ sufficient to

warrant equitably tolling the 180-day appeal deadline.” Bejar, 324 F.3d at 131 n.1 We

concluded, however, that petitioner’s counsel “did not render assistance sufficiently

ineffective to justify tolling the 180-day appeal deadline.” Id.

       Kholodilkina asserts that the ineffectiveness she alleges constitutes “actively

misleading” under Bejar. According to Kholodilkina, her attorney not only failed to

inform her about the September 30, 1999 removal hearing, but she was also advised on

several occasions that there was “nothing new in the case” by her attorney’s secretary, and

she was also told to “just wait.”

       However, our review is limited to the administrative record, Sewak v. INS, 900

F.2d 667, 673 (3d Cir. 1990), and Kholodilkina cites to nothing in the Administrative

Record (“AR”) to substantiate these claims. She does direct us to AR 54-57, but that

portion of the record does not refer to the alleged statements of her attorney’s secretary.

Rather, Kholodilkina merely asserts that her attorney “never gave [the information about

her immigration hearing] to [her], and also did not show up himself.” AR 54.

       In light of Kholodilkina’s failure to demonstrate that her attorney did anything

more than allegedly fail to notify her of her immigration hearing, we need not decide

whether a claim of ineffective assistance of counsel alleging attorney misfeasance would

equitably toll § 1229a(b)(5)(C)’s 180-day filing requirement. Kholodilkina does not

contest the fact that her attorney was served with notice of the hearing, and the



                                              4
regulations make clear that when an alien is represented, service on the alien’s attorney

constitutes notice to the alien. 8 C.F.R. § 292.5 (2002). Moreover, prior to her

September 29, 1999 hearing date, Kholodilkina’s removal proceedings had been

continued at least ten times.

       Accordingly, we find that, even if a substantiated claim of ineffective assistance of

counsel could equitably toll § 1229a(b)(5)(C)’s 180-day filing requirement, Kholodilkina

has not demonstrated that her attorney’s conduct justifies such tolling. We will therefore

affirm the BIA’s decision and deny Kholodilkina’s petition for review.2




       2
       Claiming that the government’s Motion for Enlargement of Time had not been
granted, Kholodilkina asserts that the government’s brief was not timely filed. She is
mistaken. On September 30, 2004, we granted respondent’s motion, and respondent
subsequently filed its brief in a timely manner.

                                             5
