Filed: Nov. 10, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 11-10-2005 Olavides v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-3861 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Olavides v. Atty Gen USA" (2005). 2005 Decisions. Paper 237. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/237 This decision is brought to you for free and open access by the Opinio
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 11-10-2005 Olavides v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-3861 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Olavides v. Atty Gen USA" (2005). 2005 Decisions. Paper 237. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/237 This decision is brought to you for free and open access by the Opinion..
More
Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
11-10-2005
Olavides v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3861
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Olavides v. Atty Gen USA" (2005). 2005 Decisions. Paper 237.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/237
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 04-3861
ROEL OLAVIDES,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
________________
On Petition for Review of an Order of the Board of Immigration Appeals
(No. A70-910-047)
Submitted Under Third Circuit LAR 34.1(a)
September 30, 2005
Before: ALITO and AMBRO, Circuit Judges, and
RESTANI*, Judge
(Opinion Filed November 10, 2005)
________________
OPINION
________________
________________________
*Honorable Jane A. Restani, Chief Judge of the United States Court of
International Trade, sitting by designation.
RESTANI, Judge.
Roel Olavides (“Olavides”) petitions for review of an order by the Board of
Immigration Appeals (“BIA”) denying Olavides’ motion to reopen deportation
proceedings for untimeliness. We hold that the BIA did not abuse its discretion and we
deny the petition for review.
I. Procedural and Factual Background
On June 22, 2004, Olavides, a native and citizen of the Philippines, filed a motion
to reopen deportation proceedings before the BIA under 8 C.F.R. § 1003.2(c)(2).
Olavides sought to reopen deportation proceedings in order to obtain relief from
deportation through adjustment of status to lawful permanent resident under 8 U.S.C. §
1255(a). The BIA denied the motion to reopen on September 1, 2004.
Olavides entered the United States on a visitor visa on May 31, 1990, and filed an
unsuccessful asylum application on May 4, 1993. He exceeded the stay permitted by his
non-immigration visa and Immigration and Naturalization Services1 (“INS”) commenced
deportation proceedings against him on February 21, 1997. The immigration judge found
against Olavides on his asylum claim and granted leave for voluntary departure until May
6, 1998.
In February 1998, Olavides’ attorney, Elly V. Pamatong (“Pamatong”), filed a
1
Effective March 1, 2003, the functions of the INS have been transferred to the
Department of Homeland Security.
2
timely appeal of the immigration judge’s order. The BIA denied the appeal on May 16,
2002, pursuant to 8 C.F.R. § 3.1(a)(7), since amended and renumbered as 8 C.F.R. §
1003.1(e)(4), and granted Olavides thirty days to voluntarily depart from the United
States.
On March 3, 2002, Olavides married a lawful permanent resident, who became a
United States citizen on February 27, 2003. His wife filed a petition to classify him as a
spouse of a United States citizen and the petition was approved on August 28, 2004.
Olavides later obtained new counsel and on September 5, 2003, Olavides prepared
an affidavit alleging ineffective assistance of counsel by Pamatong, and wrote a letter
informing Pamatong that he was filing a motion to reopen deportation proceedings based
upon ineffective assistance of counsel. Olavides wrote to Pamatong again on June 15,
2004, and filed a complaint with the State Bar Disciplinary Committee on the same day.
A motion to reopen deportation proceedings was filed on June 22, 2004, nine months
after the affidavit against Pamatong was prepared. The BIA denied the motion to reopen
as untimely, finding no basis to abrogate the ninety-day motions deadline. In particular,
the BIA noted the nine-month delay between the filing of the affidavit and the motion to
reopen.
On petition for review, Olavides asserts that his claim for ineffective assistance of
counsel should equitably toll the deadline for a motion to reopen and that he exercised
due diligence in pursuing his case. Additionally, Olavides argues that he should benefit
from the favorable change in policy by the Department of Homeland Security toward
3
applications for adjustment of status.
II. Discussion
An alien has the right to move to reopen deportation proceedings before the BIA if
the motion is “filed no later than 90 days after the date on which the final administrative
decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2).
The deadline for a motion to reopen may be equitably tolled by an ineffective assistance
of counsel claim. See Borges v. Gonzales, 402 F.3d 398, 407 (3d Cir. 2005). A
petitioner who seeks equitable tolling, however, must exercise due diligence in pursuing
the case. See Iavorski v. INS,
232 F.3d 124, 134–135 (2d Cir. 2000); Kanyi v. Gonzales,
406 F.3d 1087, 1090–91 (8th Cir. 2005); Socop-Gonzales v. INS,
272 F.3d 1176, 1193
(9th Cir. 2001). If equitable tolling applies, the filing deadline does not run until the
petitioner knows or should have known that he has a claim for ineffective assistance of
counsel.
Kanyi, 406 F.3d at 1091. We review the BIA’s decision denying the motion to
reopen for abuse of discretion. See INS. v. Doherty,
502 U.S. 314, 323 (1992); Sevoian
v. Ashcroft,
290 F.3d 166, 174 (3d Cir. 2002). We discern no abuse of discretion by the
BIA in denying Olavides’ motion to reopen for untimeliness.
The BIA denied Olavides’ motion to reopen, finding that equitable tolling did not
apply because Olavides failed to exercise due diligence. The BIA relied on the fact that
Olavides waited nine months after filing an affidavit alleging ineffectiveness of counsel
to file a motion to reopen. In so finding, the BIA did not need to reach the merits of
Olavides’ ineffective assistance of counsel claim. See Iavorski, 232 F.3d at 135.
4
Olavides argues that he provided Pamatong with notice of his ineffective
assistance of counsel claim on September 5, 2003, and waited nine months for a response
from him, as required by the BIA’s decision in Matter of Lozada. 19 I. & N. Dec. 637
(1998). Lozada does not, however, require a response from former counsel before filing a
motion to reopen. See Lozada, 19 I. & N. Dec. at 639; see also Scorteanu v. INS, 339
F.3d 407, 414 (6th Cir. 2003) (finding that petitioner need only notify former attorney of
charge of ineffective assistance of counsel). In any event, it is unreasonable for an alien
to wait nine months to file when he knows that he has already missed his filing deadline.
Accordingly, the BIA did not abuse its discretion by denying the motion to reopen and we
deny the petition for review.2
2
Assuming arguendo that Olavides had made a timely motion, Olavides cannot
benefit from the change in policy on adjustment of status applications because he failed to
comply with an order for voluntary departure. Absent exceptional circumstances, an alien
that remains in the United States after the date for voluntary departure is barred from
applying for adjustment of status for a period of five years. 8 U.S.C. § 1252b(e)(2)(A)
(1995) (repealed 1996). Although the statute is now repealed, it applies to petitioner
because his removal proceedings commenced prior to the effective date of the repeal.
5
