Filed: Oct. 05, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 10-5-2006 Larrahondo v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-3228 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Larrahondo v. Atty Gen USA" (2006). 2006 Decisions. Paper 353. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/353 This decision is brought to you for free and open access by the Opi
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 10-5-2006 Larrahondo v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-3228 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Larrahondo v. Atty Gen USA" (2006). 2006 Decisions. Paper 353. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/353 This decision is brought to you for free and open access by the Opin..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-5-2006
Larrahondo v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3228
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Larrahondo v. Atty Gen USA" (2006). 2006 Decisions. Paper 353.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/353
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
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3228
ANA LARRAHONDO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
(BIA No. A77-027-660)
Submitted pursuant to Third Circuit LAR 34.1(a)
September 12, 2006
Before: FUENTES, FISHER, and BRIGHT,* Circuit Judges.
(Filed October 5, 2006)
*
The Honorable Myron H. Bright, Senior Judge, United States Court of Appeals
for the Eighth Circuit, sitting by designation.
OPINION OF THE COURT
FUENTES, Circuit Judge.
Ana Larrahondo petitions for review of a decision of the Board of Immigration
Appeals (“BIA”) denying her motion to reconsider its denial of several motions to reopen
her removal proceeding. For the reasons set forth below, we will deny her petition.
I. Background
Ana Larrahondo is a 37-year old citizen of Colombia who entered the United
States as a visitor for pleasure. Larrahondo was served with a Notice to Appear before an
immigration judge (“IJ”) on October 14, 1998, and obtained representation from Maria
Ines Gonzalez (“Counsel One”). At Counsel One’s request, the removal hearing was
postponed until October 22, 1998. On that date, however, neither Larrahondo nor
Counsel One appeared. According to Larrahondo, an employee of Counsel One had
instructed her not to appear because Counsel One had “fallen ill.” At the October 22
proceeding, the IJ ordered Larrahondo removed in absentia.
On January 12, 1999, Counsel One moved to reopen Larrahondo’s immigration
proceeding before the IJ. On February 5, 1999, the IJ denied the motion to reopen,
because Larrahondo had not complied with the requirements of Matter of Lozada, 19 I. &
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N. Dec. 637 (BIA 1988),1 nor did she present “exceptional circumstances” warranting
reopening. See 8 U.S.C. § 1229a(e)(1). Counsel One filed a timely notice of appeal to
the BIA, but on June 3, 2002, the BIA summarily affirmed the IJ’s denial of her motion to
reopen (“first motion to reopen”). This decision was not appealed.
After being detained because of the outstanding order of removal, Larrahondo
obtained new counsel (“Counsel Two”). Counsel Two filed a motion to reopen
(“withdrawn motion”), detailing how Larrahondo was misled by Counsel One’s
employee. Unfortunately, this motion was filed with the wrong IJ and was subsequently
withdrawn. Larrahondo then obtained third counsel (“Counsel Three”). Counsel Three
filed another motion to reopen (“third motion to reopen”) on February 22, 2005, alleging
ineffective assistance of counsel (i.e., the ineffective assistance of Counsel One). The
government did not respond to this motion, but on April 7, 2005, the BIA denied the third
motion to reopen, finding “no good reason” for the two-and-a-half year delay between its
denial of Larrahondo’s first motion to reopen and the filing of her third motion to reopen.
The BIA noted that Larrahondo did not comply with the requirements of Matter of
Lozada. Larrahondo did not appeal this BIA decision; instead, she hired present counsel
(“Counsel Four”), who filed a motion with the BIA to reconsider its April 7 denial of her
1
of aggrieved alien’s attesting to relevant facts; (2) former counsel must be
informed of allegations and allowed an opportunity to respond, which response should be
submitted with the motion; and (3) if it is asserted that former counsel’s handling of the
case involved a violation of ethical or legal responsibilities, the motion should reflect
whether a complaint has been filed. Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005)
(citing Lozada, 19 I. & N. Dec. at 639).
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third motion to reopen. On June 3, 2005, the BIA denied Larrahondo’s motion to
reconsider, finding again that Larrahondo did not adequately explain the lateness of her
motion.
On June 27, 2005, Larrahondo filed a petition for review in this Court. Before us
she argues that the ineffective assistance of Counsel One warrants reopening her removal
proceeding. Specifically, she contends that the misrepresentation of Counsel One’s
employee resulted in the contested order of removal in absentia, as well as her continuing
failure to file a timely motion to reopen.2
II. Discussion
This Court has jurisdiction under 8 U.S.C. § 1252, which provides for judicial
review of final orders of removal. The Court reviews the BIA’s denial of a motion to
reopen for abuse of discretion. Shardar v. Ashcroft, 382 F.3d 318, 324 (3d Cir. 2004).
Accordingly, its decision will be upheld unless it is “arbitrary, irrational, or contrary to
law.” Caushi v. Attorney General,
436 F.3d 220, 226 (3d Cir. 2006) (quoting Sevoian v.
Ashcroft,
290 F.3d 166, 174 (3d Cir. 2002).
A motion to reopen a proceeding based on ineffective assistance of counsel is
governed by the requirements set out in Matter of Lozada, 19 I. & N. Dec. 637 (BIA
2
Larrahondo seems to concede that all her motions to reopen for ineffective
assistance of counsel failed to comply with the requirements of Matter of Lozada, 19 I. &
N. Dec. 637 (BIA 1988) until her motion to reconsider which complied with Lozada’s
requirements.
-4-
1988). See Luntungan v. Attorney General, 449 F.3d 551, 554 (3d Cir. 2005). Moreover,
petitioner is entitled to only one motion to reopen an order of removal. 8 U.S.C. §
1229a(c)(7); see
Luntungan, 449 F.3d at 557. Nevertheless, the filing requirements of a
motion to reopen can be tolled for fraud, particularly in the case of misrepresentation by
an alien’s legal representative. See Borges v. Gonzales,
402 F.3d 398, 406-07 (3d Cir.
2005).
In this case, Larrahondo alleges that the misrepresentation of Counsel One caused
her ongoing failure to file proper motions to reopen. She relies on Lopez v. INS, 184
F.3d 1097 (9th Cir. 1999) to argue that the period for filing her motions to reopen should
be tolled because of the misrepresentation of Counsel One’s employee. Indeed, the
principle in Lopez relied on by Larrahondo has been applied in this Circuit. See
Borges,
402 F.3d at 405, 406-07. Nevertheless, while we sympathize with the difficulty
Larrahondo has had, we find Lopez and Borges inapplicable here. It seems to us that any
misrepresentation on the part of Counsel One’s employee—whether it was a single
misrepresentation or ongoing—3 is insufficient to account for Larrahondo’s repeated
failure to file proper motions with separate attorneys.
We will assume that Larrahonodo’s failure to appear at her removal proceeding on
3
We note that the Court in Borges explained: “[c]oncluding, as we do, that tolling
may be appropriate where there is fraud is not the same, however, as concluding that
fraud has been shown. A finding of fraud is a factual determination to be made by the
BIA in the first instance.” Borges, 402 F.3d at 406-07. Accordingly, we do not express a
view of what fraud there has been—only of whether, assuming the fraud alleged by
Larrahondo, the BIA abused its discretion in denying her motion.
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October 22, 1998 resulted from misrepresentations by Counsel One’s employee.
Nevertheless, it is clear that Counsel One attempted to correct this error by filing a timely
motion to reopen with the IJ and a timely appeal to the BIA. Instead of appealing these
denials to this Court, Larrahondo filed successive motions to reopen, each with new
counsel. Even though Larrahondo’s original counsel might have misled her, these
subsequent motions to reopen—which were either deficient under Lozada, filed with the
wrong IJ, or untimely—cannot be explained by that misrepresentation. It does not appear
to us that this misrepresentation can be attributed to all of Larrahondo’s subsequent
attorneys, thereby excusing her repeated failure to file a proper motion to reopen. It
might have excused an untimely first motion to reopen, but it does not excuse
Larrahondo’s repeated failure to file properly. We will not simply extend the ineffective
assistance of Counsel One to each subsequent attorney who filed motions on her behalf.
Given this background, we conclude that the BIA’s final rejection of Larrahondo’s
motion to reconsider was not an abuse of discretion. Accordingly, we will deny
Larrahondo’s petition.
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