2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-19-2010

Sherif Gamel Ghabros v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3534

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2010

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 2010 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Sherif Gamel Ghabros v. Atty Gen USA" (2010). 2010 Decisions. Paper 1320.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/1320
PS5-125 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-3534

___________

SHERIF GAMEL GHABROS,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A96-427-350)

Immigration Judge: Honorable Daniel Meisner

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 18, 2010

Before: SMITH, FISHER and GARTH, Circuit Judges.

(Filed: May 19, 2010 )

___________

OPINION

___________

PER CURIAM
2

Sherif Gamel Ghabros, proceeding pro se, petitions for review of a Board of

Immigration Appeals (“BIA”) order denying his motion to reopen. For the reasons that

follow, we will deny the petition.

I.

Ghabros is a citizen of Egypt who was admitted to the United States in 1996 as a

visitor for business. He overstayed his visa and was placed in removal proceedings. In

June 2005, the Immigration Judge denied Ghabros’ application for withholding of

removal and protection under the Convention Against Torture. In January 2007, the BIA

dismissed Ghabros’ subsequent appeal. At the time, Ghabros was represented by

Caroline Doss. Ms. Doss neglected to inform Mr. Ghabros until nearly a month after the

fact that the BIA dismissed his appeal, and she did not inform Ghabros that failure to file

a petition for review within 30 days of the Board’s order would forfeit his right to appeal

that decision. Because she was not admitted to practice before the Court of Appeals,

Doss recommended that Ghabros hire another attorney to file a petition for review, but

agreed to file a motion to reopen based on Ghabros’ recent marriage to a United States

citizen.

Doss filed the motion to reopen, but the BIA denied it in April 2007, reasoning

that there was insufficient evidence to conclude that Ghabros’ marriage was bona fide. 

Ghabros hired a new attorney, who filed a motion to reconsider the Board’s April 2007

decision. In that motion, Ghabros sought to offer additional evidence that his marriage
3

was legitimate. The Board denied the motion to reconsider, and Ghabros filed a petition

for review, which we dismissed as untimely. See Ghabros v. Att’y Gen., C.A.

No. 07-3909 (order entered October 30, 2007).

In April 2008, Ghabros, represented by a third attorney, filed with the BIA another

motion to reopen on the basis of Doss’s alleged ineffective assistance. Ghabros also

included a request for the Board to reissue its original decision so that he could file a

timely petition for review. The Board denied the motion in July 2008, reasoning that it

was time- and number-barred, and that Ghabros failed to qualify for equitable tolling. 

Ghabros then filed a petition for review. We have jurisdiction under 8 U.S.C. § 1252.

II.

We review the BIA’s denial of a motion to reopen for abuse of discretion. See

Fadiga v. Att’y Gen., 488 F.3d 142, 153 (3d Cir. 2007). Under that standard, we will not

reverse the Board’s decision unless “it is arbitrary, irrational, or contrary to law.” Id.

(quoting Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002)). Because Ghabros is

proceeding pro se, we construe his arguments liberally. See Haines v. Kerner, 404 U.S.

519, 520-21 (1972).

Ghabros does not dispute that his second motion to reopen, filed more than a year

after the Board upheld the IJ’s order of removal, was time- and number-barred. See 8

U.S.C. § 1229a(c)(7)(A) (establishing number and time limitations on motions to reopen);

8 C.F.R. § 1003.2(c)(2) (same). Rather, he challenges the BIA determination that he
4

failed to demonstrate (1) compliance with the procedural requirements for reopening

based on an attorney’s deficient performance and (2) due diligence in pursuing his claim.

We need not consider whether Ghabros’ submissions demonstrated substantial

compliance with Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), see Xu Yong Lu v.

Ashcroft, 259 F.3d 127, 132-35 (3d Cir. 2001), because even if he did, we agree that he

did not demonstrate due diligence in pursuing his ineffective assistance claim, and was

therefore not entitled to equitable tolling.

An alien seeking to toll the limitations period in which to file a motion to reopen

must demonstrate that he exercised due diligence. See Mahmood v. Gonzales, 427 F.3d

248, 252 (3d Cir. 2005). Here, Ghabros did not file an ethics grievance until March 2008: 

about 14 months after the BIA dismissed his first appeal, and 11 months after the BIA

denied his first motion to reopen. And he made no attempt to raise the ineffective

assistance issue in his counseled motion to reconsider. On those bases, the BIA reasoned

that Ghabros demonstrated a lack of diligence in pursuing his ineffective assistance claim. 

Given the significant delay from the time of Doss’s alleged deficient performance until

Ghabros took action to reopen his case on that basis, we cannot say that the Board abused

its discretion in denying the motion to reopen. See id.

As to Ghabros’ request that the Board reissue its original decision, the Board

reasoned that Ghabros’ circumstances were not so exceptional as to warrant sua sponte

reopening. Ghabros gives no good reason to question that assessment.
5

Accordingly, we will deny the petition for review.