UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-2078
OGADINMA AKWADA,
Petitioner,
versus
JOHN ASHCROFT, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A73-176-178)
Argued: June 4, 2004 Decided: November 10, 2004
Before GREGORY and DUNCAN, Circuit Judges, and Robert R. BEEZER,
Senior Circuit Judge of the United States Court of Appeals for the
Ninth Circuit, sitting by designation.
Petition denied by unpublished per curiam opinion. Judge Duncan
wrote a dissenting opinion.
ARGUED: Danielle L. C. Beach-Oswald, NOTO & OSWALD, P.C.,
Washington, D.C., for Petitioner. Arthur Leonid Rabin, Civil
Division, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF:
Robert D. McCallum, Jr., Assistant Attorney General, Civil
Division, Margaret J. Perry, Senior Litigation Counsel, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
Ogadinma Akwada petitions for review of the Board of
Immigration Appeals’s (“BIA”) denial of his motion to reopen
removal proceedings for failure to adhere to the numerical and time
limitations on motions to reopen set forth in 8 C.F.R. § 1003.2
(2003).1 Akwada contends that because he did not receive the
statutorily prescribed notice of the removal proceedings, he is
entitled to a motion to reopen that is not time or number-barred.
Alternatively, Akwada argues that even if his motion to reopen is
subject to time or number limits, those limits should be equitably
tolled or waived because of the ineffectiveness of his former
counsel. He asserts that his former counsel’s ineffectiveness
caused him to miss his asylum interview and his removal hearing and
caused him to file useless and legally insufficient motions to
reopen, squandering his opportunity to challenge removal. Akwada
asks us to direct the BIA to consider his most recent motion to
reopen to consider his application for adjustment of status based
on his marriage to a naturalized United States citizen. Finding no
reversible error or circumstances justifying equitable relief, we
deny the petition for review.
1
8 C.F.R. § 3.2 was renamed
8 C.F.R. § 1003.2 in 2003. The
content of the regulation is the same today as when the BIA
adjudicated Akwanda’s motion to reopen in 2002.
3
I
Akwada, a native and citizen of Nigeria, entered the United
States on or about January 15, 1992. He applied for asylum and
withholding of removal on March 10, 1993. Akwada married a legal
permanent resident of the United States on August 30, 1994, and his
wife became a naturalized United States citizen in 1998.
On February 10, 1994, Akwada retained attorney Emmanuael Akpan
to help him withdraw his asylum application and pursue adjustment
of status based on his upcoming marriage to a legal permanent
resident of the United States. Akpan should have submitted a
Notice of Appointment of Representative form to the INS shortly
after Akwada retained him. See 8 C.F.R. § 292.4 Akwada asserts,
and the record reflects, that Akpan did not file an Appointment of
Representative form until over five years later, in June 1999.
In August 1997, Akwada’s address changed. Akwada did not
personally report the change of address to the Immigration and
Naturalization Service (“INS” or “Service”).2 Akwada asserts that
he relied on Akpan’s assurance that he, Akpan, would submit the new
address information to the Service. Akpan never submitted Akwada’s
2
At the time of the events covered by this petition for review,
the agency in charge of immigration matters was the INS. On March
1, 2003, the INS ceased to exist as an agency within the Department
of Justice and its functions were transferred to the Department of
Homeland Security. See Homeland Security Act of 2002, Pub. L. NO.
107-296, 110 Stat. 2135 (Nov. 25, 2002). For the sake of
simplicity, this opinion will continue to refer to the INS or “the
Service” as the central agency actor.
4
new address to the Service. Nor did Akpan withdraw Akwada’s asylum
application, as Akwada had requested in 1994.
Because the INS never received Akwada’s new address, he never
received notice of a November 3, 1998 asylum interview. Akwada
failed to attend the interview. The INS closed Akwada’s asylum
case and instituted removal proceedings against him. On November
8, 1998, the INS sent a Notice to Appear (“NTA”) to Akwada’s
previous address. The NTA set a January 13, 1999 removal hearing
date. The notice was returned to the INS unopened.
According to Akwada, Akpan never told him about the asylum
interview, the NTA, or the hearing date. Normally, Akpan, as
counsel of record, would have received a copy of all notices and
written communications the INS sent to Akwada. Since Akpan failed
to submit the Appointment of Representative form, he never received
the NTA or the hearing notice.
Akwada failed to appear for the removal hearing on January 13,
1999 and was ordered removed in absentia. According to Akwada,
attorney Akpan learned about the removal hearing by chance. Akwada
asserts that Akpan happened to be at the INS adjudicative office on
the day of Akwada’s removal hearing representing another client.
While at the INS office, Akpan saw Akwada’s name on the hearings
calendar and learned that he was in removal proceedings.
On June 7, 1999, Akwada, still represented by Akpan, moved the
Immigration Judge to reopen proceedings and rescind the in absentia
removal order pursuant to 8 C.F.R. § 1003.23(b). Akwada claimed
5
that he had been unable to attend the removal hearing because of
“exceptional circumstances,”3 specifically a medical condition
requiring “total incapacitation due to shortness of breath” and
his “doctor’s advice requiring full bed rest.” The motion included
a conclusory “Disability Certificate” from Akwada’s doctor as
justification for his absence. It did not include an affidavit
from Akwada explaining why he missed the hearing or more detailed
information from Akwada’s physician explaining Akwada’s medical
condition. The motion also asked the BIA to reopen deportation
proceedings to adjudicate Akwada’s application of adjustment of
status based on an April 13, 1999 approval of an I-130 petition
filed by his wife, then a recently naturalized United States
citizen. See 8 C.F.R. § 1003.2. The Immigration Judge denied the
motion because the moving papers did not contain an affidavit from
Akwada explaining his absence. See
8 C.F.R. §§ 1003.2(c)(1).
Akwada’s first motion to reopen did not assert that Akwada lacked
actual notice of the hearing or that attorney Akpan failed to
submit an appropriate change of address notice to the INS.
On June 15, 1999, Akwada, through attorney Akpan, moved for
reconsideration. The motion enclosed an affidavit from Akwada
explaining that he was incapacitated on the date of his removal
3
“The term ‘exceptional circumstances’ refers to exceptional
circumstances (such as serious illness or death of the spouse,
child, or parent of the alien, but not including less compelling
circumstances) beyond control of the alien.” 8 U.S.C.
§ 1229a(e)(1).
6
hearing. The motion was denied. The Immigration Judge concluded
that the motion was more properly construed as a second motion to
reopen, and should be denied because only one such motion was
permitted by statute. See 8 C.F.R. § 1003.2(c)(2). Alternatively,
the Immigration Judge reasoned that even the motion were construed
as one for reconsideration, the motion would be denied because it
(1) was untimely, and (2) failed to set forth errors of fact or
law, as required by
8 C.F.R. § 1003.2(b)(1). Akwada appealed the
Immigration Judge’s denial of his second motion and, on February
20, 2001, the BIA denied Akwada’s appeal. Akwada did not appeal
the BIA’s denial of his second motion to this court.
Akwada then retained new counsel. On May 18, 2001, Akwada
moved the BIA to reopen proceedings to permit him to adjust his
status to that of Legal Permanent Resident. The BIA denied the
motion as time and number barred under 8 C.F.R. § 1003.2.
Akwada appeals the denial of his May 2001 motion to reopen,
contending that the BIA abused its discretion when it denied the
motion.
II
Generally, we have jurisdiction to review the BIA’s denial of
a motion to reopen under 8 U.S.C. § 1252.
As a preliminary matter, the government correctly asserts that
we lack jurisdiction to review the BIA’s denial of Akwada’s first
two motions. See id. at § 1252(b)(1) (a petition for review must
7
be filed not later than 30 days after the date of the final order
of removal). Our review is limited to the BIA’s August 23, 2002
denial of Akwada’s third motion, for which a petition for review
has been timely filed. See id.4
The government also contends that we lack jurisdiction to
review Akwada’s claims that he is entitled to a statutory and
regulatory exception to the time and number limits on motions to
reopen because he did not receive statutorily prescribed notice of
the removal hearing; that he is entitled to equitable relief from
any applicable time and number limits on motions to reopen; and
that he is eligible for asylum. The government argues that Akwada
failed to exhaust his administrative remedies when he failed to
raise these issues before the BIA. See id. at § 1252(d)(1);
Stewart v. INS, 181 F.3d 587, 596 (4th Cir. 1999).
We conclude that we have jurisdiction to address one aspect of
Akwada’s notice argument. In his motion, Akwada specifically
argued that because he did not receive oral notice of the time and
place of his removal hearing and the consequences of his failure to
attend, he is eligible to pursue relief in the form of adjustment
of status. See 8 U.S.C. § 1229a(b)(7) (an alien who is deported in
absentia after receiving oral notice of the consequences of failure
to appear for removal proceedings along with written notice of the
4
The also government correctly contends that Akwada failed to
raise the issue of his eligibility for cancellation of removal in
his motion to the BIA. We lack jurisdiction to review that issue
on appeal. See 8 U.S.C. § 1252(d)(1).
8
proceeding is ineligible for several forms of relief, including
cancellation of removal and adjustment of status, for a ten year
period). We have jurisdiction to review this aspect of Akwada’s
motion.
The government correctly asserts, however, that we do not have
jurisdiction to review Akwada’s argument that he should be
permitted to file a motion to reopen that is not time or number-
barred because he did not receive statutorily prescribed notice of
the removal hearing. This argument is only relevant if Akwada’s
third motion can be construed as a motion to reopen removal
proceedings to rescind his in absentia removal order. Time
limitations on motions to reopen to rescind an in absentia order
may be waived if an alien did not receive statutorily prescribed
notice. See 8 C.F.R. 1003.23(b)(4)(ii). Akwada’s third motion,
over which we retain jurisdiction, cannot be construed as a motion
to reopen and rescind the removal order. It asks only that the BIA
reopen proceedings in order to adjudicate Akwada’s adjustment of
status application. It does not request that the BIA reopen
proceedings in order to rescind the in absentia removal order. Nor
does it cite to the statutory or regulatory provisions pertaining
to such motions. Moreover, such a motion is properly made to an
Immigration Judge, not the BIA. See 8 C.F.R. 1003.23. We lack
jurisdiction to review whether Akwada was entitled to a motion to
reopen to rescind the removal order that was not time-barred under
8 C.F.R. 1003.23(b)(4)(ii).
9
The most difficult jurisdictional question is whether Akwada
adequately raised the equitable tolling issue in his motion to the
BIA. Akwada did not use the words “equitable tolling” in his
motion to the BIA. However, he did allege facts to support a claim
of equitable tolling and argued that his motion to reopen should be
granted “based on all the equities.” In addition, the BIA
addressed whether ineffective assistance of counsel or other
equitable considerations warranted reopening proceedings. We will
exercise jurisdiction to review Akwada’s equitable tolling
argument, but decline to invoke equitable tolling in this case.
We lack jurisdiction to adjudicate Akwada’s asylum
application. We have jurisdiction to examine Akwada’s asylum claim
in the limited context of determining whether Akwada was prejudiced
by ineffective assistance of counsel, because his ineffective
assistance claim was sufficiently raised to the BIA.
III
Once Akwada was ordered removed in absentia, there were two
avenues of relief through which he could challenge the removal
order.
First, he could move to reopen proceedings to request that an
Immigration Judge or the BIA rescind the removal order pursuant to
8 U.S.C. § 1229a(b)(5)(C). Rescission of the removal order would
“annul from the beginning all of the determinations reached in the
in absentia hearing.” See In re M-S-, 22 I. & N. Dec. 349 (BIA
10
1998). The Service would then have to re-establish removability.
Id. Akwada’s first two motions may be construed as motions to
reopen to rescind the in absentia removal order. As discussed
above, we lack jurisdiction to review the first two motions.
Akwada’s third motion, at issue before this court, does not request
this form of relief.5
Second, Akwada could move to reopen proceedings because “a new
question ha[d] arisen that require[d] a hearing.” See In re M-S-,
22 I. & N. Dec. 349 A petitioner who seeks to reopen proceedings
on this basis need not first have the removal order rescinded.
Id.
In Akwada’s case, his eligibility for adjustment of status
based on an approved I-130 relative visa petition and, arguably,
the ineffectiveness of his prior counsel constitute such new
questions. Akwada is limited to filing one motion to reopen based
5
Even if we construed Akwada’s third motion to the BIA as
requesting rescission of the in absentia removal order, that motion
would be number-barred. An alien may file one motion to reopen to
rescind an absentia removal order. 8 C.F.R. 1003.23(b)(4)(ii).
That motion may be filed at any time where the alien demonstrates
that he did not receive statutorily prescribed notice. Id. Even
assuming that Akwada did not receive statutorily prescribed notice
and could have filed a motion to reopen in order to rescind the in
absentia removal order at any time, he is still limited to filing
only one such motion. See
id.
Akwada erroneously argues that his motion to reopen is not
subject to a number limit because he did not receive statutorily
prescribed notice of the removal proceedings. There is no number
limit on a motion to reopen to rescind an order entered in absentia
in deportation or exclusion proceedings if an alien does not
receive statutorily prescribed notice. See 8 C.F.R.
§ 1003.23(b)(4)(iii)(D). Akwada, however, was subject to removal
proceedings, to which stricter limits apply. See
id. at
§ 1003.23(b)(4)(ii).
11
on new facts, and he was required to file that motion no later than
90 days after the date on which the final administrative decision
was rendered in his removal proceeding. 8 C.F.R. § 1003.2(c)(2).
Akwada’s third motion to the BIA, properly construed as a motion to
reopen to review new evidence pursuant to
8 C.F.R. § 1003.2(c), is
time-barred. It was filed well past 90 days after the final order
or removal was entered. See
8 C.F.R. § 1003.2(c)(2).6
IV
Akwada asserts that even if his motion to reopen is time or
number-barred, he is entitled to equitable tolling or waiver of any
time and number limits because of the ineffective assistance of his
formal counsel. Specifically, Akwada contends that ineffective
assistance of counsel contributed to his failure to appear for both
his asylum interview and his removal hearing and caused him to file
useless motions, squandering his opportunity to effectively contest
the in absentia removal order.
We need not reach the issue whether Akwada sufficiently
demonstrated ineffective assistance of counsel. See Matter of
6
Akwada also cites In re M-S-, 22 I. & N. Dec. 349 (BIA 1998)
to support his argument that he can move to adjust status without
the statutory time constraints because he never received oral
notice of the consequences of his failure to appear. In re M-S-
holds that an applicant ordered deported in absentia may file for
adjustment of status without meeting the requirements for a motion
to rescind an in absentia deportation order. In re M-S- still
requires that the motion to reopen comply with the general time and
number requirements for motions to reopen based on new evidence,
8
C.F.R. §§ 1003.2 and 1003.23.
Id.
12
Lozada 19 I & N Dec. 637 (BIA 1992). Even if the actions of
Akwada’s former counsel constituted ineffective assistance, we do
not consider equitable tolling appropriate under the facts of this
case.
“Equitable tolling” is defined as:
The doctrine that the statute of limitations will not bar
a claim if the plaintiff, despite diligent efforts, did
not discover the injury until after the limitations
period had expired.
BLACK’S LAW DICTIONARY 560 (7th ed. 1999). Accord Holmberg v.
Armbrecht, 327 U.S. 392, 396 (1946).
“As a general matter equitable tolling may, in the proper
circumstances, apply to excuse a plaintiff’s failure to comply with
the strict requirements of a statute of limitations.” Harris v.
Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000). Equitable tolling
is a “discretionary doctrine” that “does not lend itself to bright
line rules.”
Id. The doctrine has been applied where
“extraordinary circumstances beyond [a claimant’s] control made it
impossible to file the claims on time.”
Id. (internal citation
omitted).
The BIA did not abuse its discretion when it denied equitable
relief in this case. We have held that “any resort to equity must
be reserved for those rare instances where – due to circumstances
external to the party’s own conduct - it would be unconscionable to
enforce the limitation period against the party and gross injustice
would result.” Harris, 209 F.3d at 325. Our case law has declined
13
to grant equitable relief in circumstances far more compelling than
these. See Rouse v. Lee, 339 F.3d 238, (holding in a death penalty
case that counsel’s error in filing a habeas petition one day late
did not constitute an “exceptional circumstance” that warranted
equitable tolling”).7 Requiring the BIA to consider equitable
relief in this case would be inconsistent with our case law. We
decline to equitably toll the time and number limits on motions to
reopen in this case or to fault the BIA for declining to do so.8
PETITION DENIED
7
Because we do not find equitable tolling appropriate in this
case, we need not reach the issue whether the statutory and
regulatory time and number bars on motions to reopen removal
proceedings are jurisdictional such that equitably tolling may
never be employed to overcome them. See Harris, 209 F.3d at 328.
8
We note that because Akwada never received oral notice of the
time and place of the proceedings and the consequences of failing
to attend a removal proceeding when he received the required
written notice, the BIA incorrectly determined that Akwada was
ineligible for adjustment of status for a ten-year period. See 8
U.S.C. § 1229a(b)(7); In re M-S-, 22 I. & N. Dec. 349. Because it
appears that Akwada is presumptively eligible for adjustment of
status based on his ten-year marriage to a United States citizen,
the government may join in a motion to reopen proceedings to
consider Akwada’s eligibility for adjustment of status. Such a
joint motion would not be time or number-barred. See
8 C.F.R.
§1003.23(b)(4)(iv).
14
DUNCAN, Circuit Judge, dissenting:
I respectfully disagree with the majority’s proposed
disposition of this case. I would address the merits of Mr.
Akwada’s ineffective assistance claim and find that the claim
equitably tolls the procedural bars preventing review of this
petition. Therefore, I respectfully dissent.
It is undisputed that Mr. Akwada married a legal permanent
resident of the United States in 1994 and that his wife became a
naturalized citizen in 1998. As the majority recognizes, Mr.
Akwada is therefore presumptively eligible for an adjustment of
status based on his marriage.1 Mr. Akwada, however, cannot enjoy
the benefit of that presumption solely because of the ineffective
assistance of his former counsel.
It is also undisputed that Mr. Akwada’s prior counsel: 1)
failed to file a Notice of Appointment of Representative Form with
the INS for five years, causing him to miss notice of important
developments in Mr. Akwada’s case; 2) failed to withdraw Mr.
Akwada’s application for asylum and file conditional residence
papers as requested by Mr. Akwada; and 3) failed to inform the INS
that Mr. Akwada had changed addresses, causing Mr. Akwada to miss
notices of asylum interviews and removal proceedings and,
ultimately, to be ordered removed in absentia.
1
See Maj. Op. at 14, n. 8.
15
Most importantly, however, former counsel also squandered Mr.
Akwada’s initial opportunity to reopen proceedings by failing to
follow basic filing instructions for the requisite motions. The
time and numerical bars applicable to the instant petition to
reopen are the direct result of that ineffective assistance. The
majority refuses to reach the merits of Mr. Akwada’s ineffective
assistance of counsel claim because he fails to satisfy these time
and numerical bars. This refusal is logically flawed, however,
because Mr. Akwada’s ineffective assistance claim is founded on
this very failure. Therefore, ignoring our duty to address that
failure here leaves Mr. Akwada with no forum to ever present the
merits of his claim--a claim which everyone acknowledges leaves him
“presumptively eligible” for a change in status. Therefore, I
would address the merits of Mr. Akwada’s ineffective assistance of
counsel claim. Accord United States v. Breckenridge, 93 F.3d 132,
134 (4th Cir. 1996) (“[I]t is well-settled that ineffective
assistance of counsel constitutes cause for [defeating the
procedural bar for] failure to raise an issue” in a §2255 habeas
proceeding.).
In Matter of Lozada, 19 I & N Dec 637 (BIA 1988), the BIA
established the standard for a successful motion to reopen based on
ineffective assistance of counsel. First, petitioner should
include “an affidavit . . . that sets forth in detail the agreement
that was entered into with former counsel with respect to the
actions to be taken on appeal and what counsel did or did not
16
represent to the respondent in this regard.” Id. at 639. Second,
“former counsel must be informed of the allegations and allowed the
opportunity to respond.” Id. Third, “if it is asserted that prior
counsel's handling of the case involved a violation of ethical or
legal responsibilities, the motion should reflect whether a
complaint has been filed with appropriate disciplinary authorities
regarding such representation, and if not, why not.” Id.
In the instant petition arguing ineffective assistance of
counsel, Mr. Akwada has complied with these factors.2 He has
presented a copy of the agreement into which he entered with former
counsel, as well as his understanding of that agreement; he has
informed former counsel of the allegations against him and given
him an opportunity to respond; and he has filed a complaint against
former counsel with the Attorney Grievance Commission in Maryland.
Under other circumstances demonstrating substantial hardship,
where the petitioners had substantially complied with the Lozada
requirements for establishing ineffective assistance of counsel,
this court has found that the Board of Immigration Appeals abused
its discretion in refusing to equitably toll the time and numerical
2
The Lozada requirements need not be rigidly enforced.
“Substantial compliance” with the factors will suffice when the
record demonstrates that an actual factual basis exists for a
legitimate complaint. Castillo-Perez v. I.N.S., 212 F.3d 518, 526
(9th Cir. 2000); see also Davies v. I.N.S.,
10 Fed. Appx. 223, 224
(4th. Cir 2001)(per curiam)(unpublished) (finding procedural bars
equitably tolled because “[p]etitioners substantially complied with
the requirements set forth in Lozada for establishing . . .
ineffective assistance.”).
17
requirements for the petition. Davies v. I.N.S., 10 Fed. Appx.
223, 224 (4th. Cir 2001)(per curiam) (unpublished). Based on
former counsel’s inexcusable negligence in this case, I would so
find here. To hold otherwise provides Mr. Akwada with no avenue
through which to remedy the ineffective assistance or remedy the
extreme prejudice to which it has exposed him. The majority
presents no countervailing considerations for its refusal to do
so.3
Accordingly, I would equitably toll the procedural
requirements preventing adjudication of this claim and remand this
petition to the BIA so that it may consider the merits.
I respectfully dissent.
3
At the end of its opinion, the majority notes that a motion
to reopen jointly filed by Mr. Akwada and the government would not
be subject to the time bars applicable in this case, and may be
advisable because Mr. Akwada is “presumptively eligible for
adjustment of status.” Maj. Op. at 14, n. 8 (citing 8 C.F.R.
§ 1003.23(b)(4)(iv)). It is difficult to see, however, of what
comfort this should be to Mr. Akwada. The majority does not
provide any indication that the government, having opposed Mr.
Akwada’s petition to reopen in this case, would join in a
subsequently filed petition. More fundamentally, the existence of
this potential avenue of relief does not absolve this court of its
responsibility to correct a proceeding “so fundamentally unfair
that [Mr. Akwada] was prevented from reasonably presenting his
case” through no fault of his own. Lozada v. I.N.S.,
857 F.2d 10,
13 (1st. Cir. 1988) (internal quotation omitted).
18
