Filed: Apr. 15, 2011
Latest Update: Feb. 22, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-1835 _ ROSELINE ANDREWS, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A077-039-385) Immigration Judge: Honorable Annie S. Garcy _ Submitted Pursuant to Third Circuit LAR 34.1(a) March 2, 2011 Before: AMBRO, GREENAWAY, JR. and GREENBERG, Circuit Judges (Opinion filed April 15, 2011) _ OPINION _ PER CURIAM Roseline Andrews seeks
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 10-1835 _ ROSELINE ANDREWS, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A077-039-385) Immigration Judge: Honorable Annie S. Garcy _ Submitted Pursuant to Third Circuit LAR 34.1(a) March 2, 2011 Before: AMBRO, GREENAWAY, JR. and GREENBERG, Circuit Judges (Opinion filed April 15, 2011) _ OPINION _ PER CURIAM Roseline Andrews seeks r..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-1835
___________
ROSELINE ANDREWS,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A077-039-385)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 2, 2011
Before: AMBRO, GREENAWAY, JR. and GREENBERG, Circuit Judges
(Opinion filed April 15, 2011)
___________
OPINION
___________
PER CURIAM
Roseline Andrews seeks review of a decision of the Board of Immigration Appeals
(“BIA”). For the reasons that follow, we will grant the petition for review, vacate the
final order of removal, and remand to the BIA for further proceedings.
I.
Petitioner Roseline Andrews, a citizen of Nigeria, entered the United States in
August 1996 as a visitor and did not timely depart. She adjusted to lawful permanent
resident (“LPR”) status in January 2000. In April 2003, Andrews attempted to enter the
United States with a cousin from Nigeria who was using her daughter’s passport.
Immigration officials charged Andrews with attempting to smuggle an alien into the
United States, and she was immediately placed in removal proceedings.
In October 2004, the immigration judge (“IJ”) determined that Andrews was
ineligible for a waiver under 8 U.S.C. § 1182(d)(11), and ordered her removed. At that
time, Andrews was three months short of accruing the required five years of LPR status
to be eligible for cancellation of removal. See 8 U.S.C. § 1229b(a)(1). Upon the advice
of her attorney, Andrews did not appeal. Her attorney, Frank Mazzocchi, assured her that
he would file an application for humanitarian relief instead. Over the course of the next
year, Mazzocchi mostly stopped responding to Andrews’ inquiries about her case. When
he did speak with Andrews regarding the status of her case, he told her that “the case was
filed and there had been no response from the government, which was a good sign.”
However, this was a lie—no application for humanitarian relief had been filed.
Around December 2005, Andrews became “desperate,” and sought the advice of a
second attorney, Vladislav Sirota. Sirota suggested that Andrews file “a waiver under
Section 212” based on hardship to her American husband and children, and promised to
move to reopen Andrews’ case. After paying his retainer, Andrews attempted to follow
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up with Sirota, but he avoided her calls. Sirota apparently never took any action on
Andrews’ behalf, and, in January 2007, after she “kept calling him,” he agreed to refund
her money.
Andrews then consulted with her third and current attorney. Within a month, in
April 2007, she filed a motion to reopen in which she argued that Mazzocchi was
ineffective for failing to delay the proceedings until she acquired the requisite five years
of permanent residence and for failing to file an appeal. The IJ denied the motion after
determining that any ineffectiveness on the part of counsel would not have prejudiced
her, as she was ineligible for cancellation in October 2004. The IJ reasoned that the
required five years of permanent residence and seven years of physical presence were cut
short by the “stop-time” rule, 8 U.S.C. § 1229b(d)(1), when she was served with the
notice to appear in November 2003. The IJ also found that Andrews failed to establish
that she directed counsel to pursue an appeal of the removal order. Finally, the IJ
concluded that Andrews’ motion to reopen was untimely, and that she had failed to
demonstrate that equitable tolling was warranted.
Andrews did not appeal. However, in June 2007, Andrews filed a timely motion
for reconsideration. She argued that the “stop-time” rule did not cut off her LPR accrual
because the rule applies only in calculating the seven years of continuous physical
presence requirement. She also argued that she was entitled to equitable tolling of the
time to reopen.
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The IJ denied the motion, again finding that Andrews was ineligible for
cancellation because, at the time of the original proceedings, she had not yet accrued five
years of permanent residence. The IJ also determined that Andrews failed to show that
she had acted with due diligence, and therefore, was not eligible for equitable tolling of
the time to apply for reopening.
Andrews appealed the denial of her motion for reconsideration to the BIA. She
argued that she had diligently pursued her case and was entitled to equitable tolling. She
also claimed that but for counsel’s deficient performance, she would have been eligible
for cancellation of removal because the “stop-time” rule does not apply to the accrual of
legal permanent residence. The BIA dismissed her appeal, finding that Andrews did not
meet her burden of proof regarding due diligence. The BIA also found that even if the IJ
wrongly applied the “stop-time” rule, Andrews admitted that she had not accrued five
years of permanent residence at the time the IJ issued the removal order, and therefore,
she could not show that her attorneys were deficient for failing to apply for cancellation.
The BIA did not decide whether the commission of the offense served to stop the time of
her continuous physical presence, noting that Andrews had not raised the issue. Andrews
filed a timely petition for review.
II.
We have jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s decision
affirming the IJ’s denial of Andrews’ motion to reconsider. We review such denials for
abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). Under this
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standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary
to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). A motion to reconsider
must specify “the errors of fact or law in the [IJ’s] prior decision.” 8 C.F.R. §
1003.23(b)(2).
III.
In reviewing the BIA’s ruling on Andrews’ appeal from the denial of her motion
to reconsider, which included challenges to the IJ’s denial of her equitable tolling and
ineffective assistance of counsel claims, we must necessarily look back to the IJ’s denial
of her motion to reopen. In general, motions to reopen must be filed within ninety days
from the date “of entry of a final administrative order of removal.” 8 C.F.R. §
1003.23(b)(1); see also 8 U.S.C. § 1229a(c)(7)(C). The time limit for filing a motion to
reopen is subject to equitable tolling. See Borges, 402 F.3d at 406. Ineffective assistance
of counsel can provide a basis for equitable tolling of the time to file a motion to reopen.
Mahmood v. Gonzales,
427 F.3d 248, 250 (3d Cir. 2005). If ineffectiveness is
substantiated, a petitioner must also demonstrate that she diligently pursued her claims.
Id. at 252.
Andrews does not dispute that her motion to reopen, filed over two years after the
removal order, was untimely. Rather, she challenges the BIA’s determination that she
was not entitled to equitable tolling of the time limit based on her claim of ineffective
assistance of counsel.
5
After the IJ issued the removal order, Mazzocchi told Andrews that it was
“useless” to file an appeal. In the next year, Andrews made contact with him only twice,
and when she did speak with him, he told her that he had filed a petition for humanitarian
relief, that her case was pending, and that it was “a good sign” that he had heard nothing
back from the government. She eventually consulted with a second attorney, Sirota, and
hired him once she realized that Mazzocchi was not acting on her behalf, despite his
assurances that she did not need to take any further action in support of her case. Sirota
also failed to pursue her case, and eventually returned her fees. We hold that Andrews
acted reasonably and diligently in relying on Mazzocchi’s representations and assurances.
Accordingly, we conclude that the BIA abused its discretion in determining that Andrews
had not diligently pursued her claims.
The BIA held, in the alternative, that Andrews had failed to demonstrate that
Mazzocchi’s representation was deficient. We disagree. He first told her that an appeal
would be “useless.” This does not appear to be the case. Had Mazzocchi filed a timely
appeal, Andrews’ LPR time would have continued to run. In re Lok, 18 I. & N. Dec.
101, 105 (BIA 1981) (LPR status ends “when the [BIA] renders its decision in the case
upon appeal or certification or, where no appeal to the [BIA] is taken . . . or the time
allotted for appeal has expired”); see also Katsis v. INS, 997 F.2d 1067, 1075-76 (3d Cir.
1993). Had counsel filed an appeal, it is probable that she would have accrued five years
of lawful permanent residence while the BIA considered her appeal. She therefore would
have been eligible to apply for cancellation of removal. Additionally, as stated above,
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Mazzocchi never petitioned for humanitarian relief as he said he did, and he avoided
communicating with Andrews for over a year about the status of her case. When he did
speak with her, he deceived her. Accordingly, we find that counsel’s performance was
indeed deficient, and we will remand the matter to the BIA for consideration of whether
that deficient performance prejudiced Andrews. See Fadiga v. Att’y Gen., 488 F.3d 143,
157-59 (3d Cir. 2007).
IV.
Because Andrews has demonstrated that she diligently pursued her claims and that
her attorney’s representation was deficient, we will vacate the BIA’s decision and remand
the case for consideration of whether Andrews was prejudiced by her attorneys’
ineffectiveness.
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