2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-27-2005

Mahmood v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-3760

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 03-3760

 

SYED MAHMOOD,

Petitioner

v.

*ALBERTO R. GONZALES, Attorney General 

of the United States,

Respondent 

*Substituted pursuant to Rule 43c, F.R.A.P.

 

On Appeal from an Order entered before

The Board of Immigration Appeals

(No. A 70-891-107)

 

Argued September 15, 2004

Before: ALITO, AMBRO and FISHER, Circuit Judges
2

(Filed October 27, 2005 )

Robert Frank, Esquire (Argued)

Suite 1304

60 Park Place

Newark, NJ 07102

Attorney for Petitioner

Peter D. Keisler

 Assistant Attorney General, Civil Division

Barry J. Pettinato

 Senior Litigation Counsel

David V. Bernal, Esquire

Douglas E. Ginsburg, Esquire

John D. Williams, Esquire

William M. Martin, Esquire (Argued)

United States Department of Justice

Office of Immigration

Litigation

P.O. Box 878

Ben Franklin Station

Washington, D.C. 20044

Attorneys for Respondent

 

OPINION OF THE COURT

 
Effective March 1, 2003, the INS ceased to exist and its 1

functions were transferred to the Department of Homeland

Security (“DHS”). 

3

AMBRO, Circuit Judge

Syed Mahmood petitions for review of the decision by

the Board of Immigration Appeals (“BIA”) dismissing his

appeal by agreeing with the Immigration Judge’s (“IJ”) denial

of his motion to reopen as untimely filed. Though we conclude

that Mahmood’s allegations of ineffective assistance of counsel

provide a basis for equitably tolling the relevant filing deadlines,

we nonetheless deny the petition because he failed to exercise

the requisite degree of diligence. 

I. Facts and Procedural History 

Mahmood, a native and citizen of Bangladesh, entered

the United States in February 1993. In June 1997, the former

Immigration and Naturalization Service (“INS”) concluded that 1

Mahmood had presented invalid documents when he entered the

United States and issued to him a Notice to Appear for possible

removal. Mahmood, however, failed to appear for his hearing

before an IJ in January 1998, and he was ordered removed in

absentia under 8 U.S.C. § 1229a(b)(5)(A). He moved to reopen

the proceedings. After determining that Mahmood had been

severely ill and unable to attend the hearing, the IJ concluded
The letter stated: 2

[Mahmood] appeared in front of you for a

political asylum case. On the date for the

4

that “exceptional circumstances” warranted granting the motion.

See 8 U.S.C. § 1229a(b)(5)(C)(i) (providing that an in absentia

removal order may be rescinded “if the alien demonstrates that

the failure to appear was because of exceptional

circumstances”). 

The IJ scheduled another hearing in March 1999, but

again Mahmood did not appear, and again the IJ ordered his

removal in absentia. In April 1999, he filed a second motion to

reopen, asserting a medical procedure had prevented him from

appearing for the rescheduled hearing. The IJ concluded that

the procedure (removal of a perirectal abscess) was not

sufficiently serious to constitute exceptional circumstances and

denied the motion in May 1999. Included in the certified

administrative record is a cover letter—addressed to Charles

Grutman, Mahmood’s counsel at that time, and dated June 1,

1999—purporting to attach the IJ’s decision. 

Well over a year later, in November 2000, Grutman

received a “bag and baggage” letter ordering Mahmood to report

for removal to Bangladesh. In response, Grutman wrote to the

IJ and asserted that he had never been notified of the denial of

the motion to reopen. 

2
individual hearing, he failed to appear, and a

motion to reopen was filed on April 30, 1999.

Your office sent my office a letter dated 05/11/99,

[giving] us ten days to make representations

relative to the motion. 

After that letter, neither my client nor I

heard anything from the [United States

Department of Justice Executive Office for

Immigration Review], nor from [the INS], until

today, when he received a bag and baggage letter

calling for his departure on December 20, 2000.

I called the national hotline and was informed that

you had denied the motion on May 28, 1999, but

we never received the denial. As we never

received the denial, it was not possible to appeal

your decision.

Please send me a copy of the denial.

5

In December 2000, Mahmood’s counsel appealed the

May 1999 order to the BIA, and it dismissed the appeal as

untimely in 2002. Mahmood retained new counsel and filed his

third motion to reopen in July 2002, alleging ineffective

assistance of counsel and seeking an adjustment of status in light

of an approved I-130 petition filed by Karen Mahmood (née

Zimmerman), who had married Mahmood in April 2001. The

IJ denied the motion on the ground that it had been filed over

three years after the IJ issued the in absentia order (that was the
6

subject of the second motion to reopen), and thus long after the

applicable time limits for moving to reopen had passed. The

BIA dismissed Mahmood’s appeal in June 2001, and he timely

petitioned for our Court’s review. 

II. Standard of Review

We review a final order of the BIA denying a motion to

reopen for abuse of discretion. Cf. INS v. Doherty, 502 U.S.

314, 323 (1992). Review of the BIA’s legal conclusions is de

novo, with appropriate deference to the agency’s interpretation

of the underlying statute in accordance with administrative law

principles. Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004)

(citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 844 (1984)). Findings of fact may not be

disturbed if supported by substantial evidence. See 8 U.S.C.

§ 1252(b)(4)(B); Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir.

2003) (en banc). 

III. Discussion

A. Equitable Tolling and Ineffectiveness of

Counsel

Generally, a motion to reopen must be filed within 90

days of the date of entry of a final administrative order of
The 90-day limitation was codified at 8 U.S.C. 3

§ 1229a(c)(6)(C)(i) prior to Congress’s enactment of the REAL

ID Act of 2005, Pub. L. 109-13, div. B, § 101(d), 119 Stat. 231,

304 (2005), which redesignated paragraph (c)(6) as paragraph

(c)(7). 

Because Mahmood was moving to reopen the 4

proceedings to seek an adjustment of status, the BIA applied the

general rules of paragraph (c)(7) as well as paragraph

(b)(5)(C)’s particular rule for rescinding an order of removal

entered in absentia. 

7

removal. 8 U.S.C. § 1229a(c)(7)(C)(i). With respect to in 3

absentia orders of removal, an alien has 180 days to file a

motion to reopen that seeks to demonstrate that the failure to

appear was because of “exceptional circumstances.” 8 U.S.C.

§ 1229a(b)(5)(C)(i). The BIA concluded that the Mahmood’s

motion was untimely under both deadlines. 

4

When this petition for review was filed, courts of appeal

were divided over whether the deadlines in 8 U.S.C. § 1229a for

moving to reopen in absentia orders of removal were mandatory

and jurisdictional or, like a statute of limitations, subject to

equitable tolling. Compare, e.g., Anin v. Reno, 188 F.3d 1273,

1278 (11th Cir. 1999) (holding that the 180-day deadline in

former 8 U.S.C. § 1252b(c)(3)(A) for filing motions to reopen

deportation proceedings is “jurisdictional and mandatory”), with

Pervaiz v. Gonzales, 405 F.3d 488, 490–91 (7th Cir. 2005)

(holding that the 180-day statutory deadline for motion to reopen
A motion to reopen based on lack of sufficient notice 5

may be filed “at any time.” 8 U.S.C. § 1229a(b)(5)(C)(ii). The

BIA found that the IJ’s decision was mailed to Grutman on June

1, 1999, and that finding is supported by substantial

evidence—specifically, the cover letter described above. In

view of this finding—and regulations and caselaw establishing

that service on an alien’s counsel is equivalent to service on the

alien in these circumstances—Mahmood cannot rely on the “at

any time” provision in § 1229a(b)(5)(C)(ii). See Bejar v.

Ashcroft, 324 F.3d 127, 131 (3d Cir. 2003) (citing 8 C.F.R.

§ 292.5). 

8

in absentia proceedings is not jurisdictional and remanding for

further proceedings in light of counsel’s alleged ineffective

assistance), Iavorski v. INS, 232 F.3d 124, 131, 134 (2d Cir.

2000) (holding that the 90-day period provided in former 8

C.F.R. § 3.23(b)(1) for filing motions to reopen is subject to

equitable tolling based on ineffective assistance of counsel), and

Lopez v. INS, 184 F.3d 1097, 1099–1100 (9th Cir. 1999)

(holding that the time limit for motion to reopen an order of

deportation under former 8 U.S.C. § 1252b(c)(3)(A) is subject

to equitable tolling). 

5

Subsequently, in Borges v. Gonzales, 402 F.3d 398 (3d

Cir. 2005), we held that the § 1229a(b)(5)(C)(i) deadline is

“appropriately considered as analogous to a statute of limitations

and, thus, subject to equitable tolling.” Id. at 406. In reaching

this holding, we cited the “old chancery rule” for tolling on the
Discussing the “old chancery rule” in Reuther (which 6

Borges cites), we “recogniz[ed] that the case before us [did] not

involve fraud,” but concluded nonetheless, based on “equitable

principles,” that it “present[ed] a factual complex in which there

was ‘no want of diligence or care’” on the part of the party

seeking to invoke the equitable tolling doctrine. 575 F.2d at

1079. We held that the statute of limitations was subject to

tolling. Id. 

Specifically, Borges alleged that he was defrauded into 7

believing that a licensed attorney was doing all of his legal work

(when instead work was being performed by a paralegal), his

case was proceeding smoothly, and if he appeared for a

scheduled hearing he would be removed. Borges, 402 F.3d at

405. Although Borges only dealt directly with the 180-day

deadline in § 1229a(b)(5)(C)(i), we believe its reasoning also

applies to the 90-day deadline in § 1229a(c)(7), as the statute is

9

ground of fraud. Id.; see also Lopez, 184 F.3d at 1100

(discussing the “old chancery rule” providing that where a party

“has been injured by fraud and remains in ignorance of it

without any fault or want of diligence or care on his part, the bar

of the statute does not begin to run until the fraud is discovered”

(internal quotation marks omitted)); Reuther v. Trs. of Trucking

Employees, 575 F.2d 1074, 1078–79 (3d Cir. 1978).6

Nevertheless, unlike the alien in Borges, who alleged that

he had been defrauded by an attorney and the attorney’s

paralegal, Mahmood alleges that his attorney failed to notify 7
best analyzed as an integrated whole. 

10

him of the IJ’s adverse ruling. At first glance, these allegations

appear to be similar to those at issue in Bejar v. Ashcroft, 324

F.3d 127 (3d Cir. 2003), which the Government contends

controls the outcome here by dooming (in the Government’s

view) claims for tolling based on ineffective assistance of

counsel. In Bejar, the alien, who was removed in absentia,

alleged ineffective assistance based on her counsel’s failure to

notify her of the IJ’s adverse ruling, though Bejar admitted that

she had moved to another residence. Id. at 129–31. Without

deciding whether ineffective assistance of counsel can serve as

a basis for tolling, we concluded that Bejar’s counsel “did not

render assistance sufficiently ineffective to justify tolling” the

applicable deadline. Id. at 131 n.1. 

As an initial matter and as already noted, other courts of

appeal have recognized that ineffective assistance can serve as

a basis for equitable tolling in immigration cases. Bejar, which

was decided pre-Borges, does not suggest that ineffective

assistance is not a possible basis for tolling once one accepts, as

we must in light of Borges, that the deadlines are subject to

tolling in at least some circumstances. 

Further, Bejar is distinguishable. Unlike Mahmood,

Bejar contributed to her lack of notice by moving residences and

failing to provide counsel with her new address. Moreover,

counsel’s receipt of the notice was undisputed in Bejar. Here,
Because any discussion of what Grutman may have done 8

or failed to do would be largely speculative, in light of

Mahmood’s lack of diligence we do not attempt to define

generally what qualifies as ineffectiveness sufficient to justify

tolling. Judge Alito joins Part III.A of this opinion solely

because Borges is binding Circuit precedent.

11

Grutman’s letter (claiming he received no notice) is in tension

with the BIA’s finding that notice was sent. In this context,

there are a number of possible scenarios. For example, it is

possible that Grutman’s failure to forward notice to Mahmood

was the result of his or his staff’s mishandling of the letter,

perhaps through mere inadvertence or perhaps through gross

deficiencies in his office’s administrative procedures. It also

possible, as Mahmood asserts, that Grutman received the notice,

never forwarded it to him, and then made misrepresentations to

him and the Court by claiming he (Grutman) had never received

it. Even worse, Grutman may have agreed to represent

Mahmood (and accepted payment) without intending ever to

represent his client adequately. Thus, through no fault of his

own (in his version of the events), Mahmood was deprived of

further proceedings in this case. In this context, the allegations

of ineffective assistance would warrant further consideration by

the BIA or IJ (which issued their decisions well before Borges),

except that for the reasons discussed below his claims fail for

lack of diligence.

8
12

B. Due Diligence

Though the attorney conduct at issue is sufficient, if

substantiated, to provide a basis for equitable tolling,

Mahmood’s claims still fail for lack of diligence. Cf. Borges,

402 F.3d at 407 (discussing the Government’s argument that the

alien was ineligible for relief because he did not exercise due

diligence); Iavorski, 232 F.3d at 134–35 (holding that

ineffective assistance of counsel provided a basis for equitable

tolling but concluding that the alien’s claim was time-barred

because the alien had not exercised due diligence); Lopez, 184

F.3d at 1100 (adopting “the old chancery rule that where a

plaintiff has been injured by fraud and remains in ignorance of

it without any fault or want of diligence or care on his part, the

bar of the statute does not begin to run until the fraud is

discovered” (emphasis added) (internal quotation marks

omitted)).

Mahmood has failed to come forward with evidence that

he acted with such diligence. Indeed, he failed to submit an

affidavit, instead resting entirely on Grutman’s letter as the basis

for tolling. Here, the IJ ruled on Mahmood’s first motion to

reopen—and Mahmood received a copy of that ruling—less than

90 days after he filed that motion. Yet, if we accept Mahmood’s

suggestion that he was unaware of the denial of the second

motion until December 2000, when he received the “bag and

baggage” letter, there is no indication in the record that

Mahmood took any steps to inquire about the status of his case
13

during the more than eighteen months that passed between the

denial of his motion and the time that he received that letter,

notwithstanding that it took far less time for him to receive the

ruling on the first motion to reopen. 

Furthermore, there is an additional time period that

passed without any suggestion of diligence. The BIA dismissed

Mahmood’s untimely appeal in June 2001, but it was not until

more than a year later, in July 2002, that he filed the third

motion to reopen. Moreover, there is no indication that he was

attempting to seek new counsel or otherwise taking steps to

pursue his immigration case during this period.

Whether an alien has exercised due diligence generally

should be determined by the IJ in the first instance, and typically

a remand would be in order absent a finding of diligence (or

lack thereof). Cf. INS v. Ventura, 537 U.S. 12, 16 (2002) (per

curiam) (“Generally speaking, a court of appeals should remand

a case to an agency for decision of a matter that statutes place

primarily in agency hands.”). When the outcome is clear as a

matter of law, however, remand is not necessary. See Borges,

402 F.3d at 407 (concluding that the alien had exercised due

diligence as a matter of law). Though it is good to “bear[] in

mind that [Mahmood] is a foreigner who may, therefore, have

more than the average difficulty in negotiating the shoals of

American law,” Pervaiz, 405 F.3d at 491, we are also mindful

that “[e]quitable tolling is an extraordinary remedy which should

be extended only sparingly,” Hedges v. United States, 404 F.3d
14

744, 751 (3d Cir. 2005). Taken together, these periods of

unaccounted-for delay reveal a lack of diligence, and thus

Mahmood is not entitled to tolling. 

* * * * *

In this context, we deny the petition for review.