United States Court of Appeals

For the First Circuit

No. 08-1552

RAFIC CHEDID,

Petitioner,

v.

ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

 Lynch, Chief Judge, 

Torruella and Lipez, Circuit Judges.

Saher Joseph Macarius, Audrey Youssef Botros, and Law Offices

of Saher J. Macarius, for petitioner. 

Gregory G. Katsas, Assistant Attorney General, Greg D. Mack,

Senior Litigation Counsel, and Wendy Benner-León, Trial Attorney,

Office of Immigration Litigation, Civil Division, U.S. Department

of Justice, for respondent. 

July 17, 2009

_____________________

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General

Eric H. Holder, Jr. has been substituted for former Attorney

General Michael B. Mukasey as the respondent. 
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LIPEZ, Circuit Judge. Petitioner Rafic Chedid, a native

and citizen of Lebanon, seeks review of an April 3, 2008 denial by

the Board of Immigration Appeals (BIA) of his second motion to

reopen immigration proceedings to allow him to apply for adjustment

of status based on his marriage to a United States citizen. More

than two years earlier, the BIA had upheld the decision of an

immigration judge (IJ) denying Chedid's application for withholding

of removal and relief under the Convention Against Torture (CAT).

The BIA agreed with the IJ that Chedid failed to establish that he

suffered past persecution on account of a protected ground or that

it was more likely than not that his life would be threatened or he

would be tortured by the Lebanese government upon returning to

Lebanon.

Several months later, Chedid filed his first motion to

reopen the proceedings to allow him to apply for adjustment of

status based on an I-130 visa petition that his wife had since

filed with the United States Citizenship and Immigration Services

(USCIS). The Board denied this motion both because it was untimely

and also based on its finding that Chedid had failed to make out a

prima facie case of the bona fides of his marriage. One year

later, Chedid filed a second motion to reopen, claiming that the

time and number limitations on filing his motion should be

equitably tolled and the proceedings reopened due to ineffective
 The INS's enforcement functions have since been transferred 1

to the Department of Homeland Security (DHS), pursuant to section

441 of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116

Stat. 2135 (Nov. 25, 2002). 

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assistance of his prior counsel. It is the Board's denial of this

second motion to reopen that we now review. We deny the petition.

I.

A. Removal Proceedings and First Motion to Reopen 

Because the merits of Chedid's withholding of removal and

CAT claims are not before us, we provide only a brief factual

summary of his claims. Chedid, a Lebanese citizen, entered the

United States on February 9, 2001, as a nonimmigrant visitor with

authorization to remain in the United States until May 8, 2001.

The former Immigration and Naturalization Service (INS) issued a 1

Notice to Appear (NTA) on January 6, 2003, charging petitioner with

being subject to removal for overstaying his visa. On May 12,

2003, Chedid appeared with counsel before the IJ and admitted the

factual allegations in the NTA and conceded that he was removable

as charged. However, he also sought withholding of removal and

protection pursuant to the regulations implementing the CAT based

on his fear of persecution or torture because of his political

opinion and religion. Chedid is a Maronite Christian. After a

hearing on September 15, 2004, at which Chedid testified, the IJ
Because Chedid did not submit an application for asylum 2

within one year after the date of his arrival in the United States,

he was ineligible for such relief. See 8 U.S.C. § 1158(a)(2)(B).

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issued an oral decision denying his application for withholding of

removal and CAT protection.2

The IJ found that Chedid had failed to carry his burden

of establishing that he had been a victim of past persecution in

Lebanon on account of one of the statutory grounds, or that it was

more likely than not that he would be persecuted or tortured upon

his return to that country. However, the IJ granted Chedid’s

request for voluntary departure and entered an alternate order of

removal in case Chedid failed to comply with the grant of voluntary

departure by the deadline of November 15, 2004.

Chedid, through counsel, timely appealed the IJ’s

decision to the BIA. On February 21, 2006, the Board affirmed the

IJ’s decision and extended Chedid’s voluntary departure deadline to

sixty days from the date of its order, or April 22, 2006. 

On May 19, 2006, Chedid filed a motion to reopen and

remand the proceedings to the IJ. His motion, based on his January

12, 2006 marriage to a United States Citizen, sought a remand to

allow him to apply for adjustment of status based on an I-130

immediate relative visa petition that his wife had filed on his

behalf on February 23, 2006. The board denied the motion to reopen

on June 15, 2006. 
 Subject to certain exceptions, a petitioner may file only 3

one motion to reopen, and he must do so within ninety days of the

date of entry of the Board’s final decision. See 8 U.S.C. §

1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). 

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Because Chedid’s counsel, Antonio Sambrano Sorraco

(Sambrano), did not file an EOIR-27 form entering his appearance in

connection with Chedid’s motion to reopen, the Board considered

Chedid as proceeding pro se on his motion to reopen. The Board

found that Chedid did not qualify for reopening because the motion

was filed after the April 22 expiration of the sixty-day voluntary

departure period. The BIA also concluded that Chedid had failed to

submit sufficient evidence to make out a prima facie case of the

bona fides of his marriage, and therefore did not meet his burden

for reopening in any event. Chedid did not appeal the Board’s June

15, 2006 order to this Court. 

B. Second Motion to Reopen 

Over a year later, through new counsel, Chedid filed

another motion to reopen with the BIA. He argued that the time and

number limitations on motions to reopen prescribed in 8 C.F.R. §§

1003.2(c)(2) & (c)(3) should be equitably tolled and his 3

proceedings reopened due to the ineffective assistance of his prior

counsel. In support of this claim, he faulted Sambrano for filing

an "ill-composed" I-130 petition and for an untimely filing of

Chedid's first motion to reopen. In the affidavit attached to his

motion to reopen, Chedid claimed that, a week after the Board
 Although Attorney General Michael Mukasey had issued a 4

ruling modifying the Lozada requirements prior to leaving office,

see Matter of Compean, 24 I. & N. Dec. 710 (AG 2009), that decision

was subsequently revoked by Attorney General Holder. 25 I. & N.

Dec. 1 (AG 2009). Accordingly, the Lozada standard still governs

the petitioner's claim. Id. 

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denied his appeal, he had spoken with Sambrano, who had assured him

that because he was now married to a U.S. citizen, he would be

granted adjustment of status on the basis of his I-130 petition and

he "had nothing to worry about with regard to the asylum case."

Then, after receiving the Board’s decision on his first motion to

reopen, Sambrano told him that he had to leave the country. 

Chedid also argued in his second motion to reopen that he

had satisfied the requirements for making out a claim of

ineffective assistance of counsel as set forth in In re Lozada, 19

I. & N. Dec. 637, 639 (BIA 1988). Lozada requires an alien 4

seeking to reopen removal proceedings based on a claim of

ineffective assistance of counsel to include with the motion 1) an

affidavit explaining the petitioner’s agreement with counsel

regarding legal representation; 2) evidence that counsel has been

informed of the allegations of ineffective assistance and has had

an opportunity to respond; and 3) if it is asserted that counsel's

handling of the case involved a violation of ethical or legal

responsibilities, a complaint against the attorney filed with

disciplinary authorities or, in the alternative, an explanation for

why such a complaint has not been filed. Id. The bar complaint
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submitted with Chedid’s motion to reopen had been sent with a cover

letter stating that Chedid was "not seeking sanctions or

disciplinary action" against his prior counsel, but rather that he

was filing the complaint "in order to reopen his case before the

Immigration Court" and comply with the Lozada requirements. A

similar cover letter was sent to Sambrano along with a copy of the

complaint.

Finally, in the motion to reopen, Chedid claimed that he

had "new evidence" as to the bona fides of the new marriage that

would establish his prima facie eligibility for adjustment of

status. The new evidence was a set of materials submitted by

Chedid’s new counsel on November 13, 2006, as a supplement to his

wife’s I-130 petition, and included evidence of a joint bank

account that Chedid maintained with his citizen spouse, letters

from friends describing the spousal relationship, and a copy of the

couple’s September, 2006 electric bill. 

C. The BIA's Decision

On April 3, 2008, the BIA denied Chedid’s second motion

to reopen on the grounds that it was untimely and exceeded the

numerical limitations for such motions set forth in 8 C.F.R. §

1003.2(c)(2). Although the Board acknowledged that equitable

tolling of the time limitations may be available in some cases

alleging ineffective assistance of counsel, it found that Chedid

had not acted with the "due diligence" required to invoke this
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doctrine. Specifically, the Board noted that approximately a year

had transpired between the Board’s denial of Chedid’s first motion

to reopen and the filing of his second. The Board rejected as an

insufficient excuse for the delay Chedid's assertion that he had

"searched for several months for an attorney willing to take this

case and file a new motion to reopen." Furthermore, the Board held

that Chedid had not substantially complied with the Lozada

requirements, finding the bar complaint and the notice to Sambrano

"troubling and not substantial, much less full, Lozada compliance."

The Board explained: 

On the one hand, the respondent would have us

believe that Mr. Sambrano’s representation so

damaged his case as to render him ineligible

for an immigration benefit, adjustment of

status, that he otherwise would warrant. On

the other hand, the respondent, though current

counsel, made it quite clear to both Mr.

Sambrano and his state bar’s disciplinary

board of his desire that "no sanctions or

disciplinary action be taken against" Mr.

Sambrano, and that the complaint was being

filed merely "to fulfill" Lozada requirements.

As a result, the Board found the allegations of harm to "ring

hollow" and noted that "pro forma" compliance with the Lozada

requirements was insufficient to make out a case for ineffective

assistance of counsel.

II.

"We review the Board's denial of the motion to reopen for

abuse of discretion, setting aside a decision only where it rests

on an error of law or reflects arbitrary or capricious
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decisionmaking." Oliveira v. Holder, 568 F.3d 275, slip op. at 3

(1st Cir. 2009) (citation omitted). Generally, a petitioner is

entitled to file only one motion to reopen, which must be filed

within ninety days of the date of entry of the Board’s final

decision. 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2).

However, there are certain limited exceptions to the time and

numerical limitations on motions to reopen if, inter alia, the

motion (1) seeks rescission of an in absentia order of removal; (2)

seeks to apply for asylum or withholding of removal based on

changed country conditions; (3) is joined and agreed upon by all

parties; or (4) is filed by DHS. 8 C.F.R. § 1003.2(c)(3).

Chedid's case does not fall within any of 8 C.F.R. § 1003.2(c)(3)'s

explicit regulatory exceptions to the time and numerical

limitations on such motions. However, some courts have also

recognized the availability of equitable tolling claims to surmount

the time and numerical limitations on motions to reopen. See,

e.g., Iavorksi v. INS, 232 F.3d 124, 129 (2d Cir. 2000) (time and

numerical limitations); Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir.

1999) (time limitations).

In a recent decision, we once again reserved the question

of whether "the statutory provision limiting motions to reopen is

subject to equitable tolling." Da Silva Neves v. Holder, 568 F.3d

41, 42 (1st Cir. 2009); see also Beltre-Veloz v. Mukasey, 533 F.3d

7, 11 (1st Cir. 2008) (reserving the question); Guerrero-Santana v.
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Gonzalez, 499 F.3d 90, 93 (1st Cir. 2007) (same). We have also

said that, even if equitable tolling were available to avoid the

limitations on motions to reopen, the doctrine should be "sparingly

invoked," Jobe v. INS, 238 F.3d 96, 100 (1st Cir. 2001) (en banc)

(quotation marks omitted), and is "unavailable to a party who has

failed to exercise due diligence, as the BIA found here." Da Silva

Neves, 568 F.3d at 42 (citing Boakai v. Gonzales, 447 F.3d 1, 3

(1st Cir. 2006)). Thus, even assuming equitable tolling were

available, we could only reach the merits of Chedid's ineffective

assistance of counsel claim if the Board abused its discretion in

finding that he had not exercised the "due diligence" required by

our case law. It did not. 

 The Board's decision notes that "[n]early a year

transpired from the time of the Board's denial of the first motion

and the final motion." In fact, Chedid's second motion to reopen

was filed on July 13, 2007, more than a year after his first motion

to reopen was denied on June 15, 2006. As the Board pointed out,

the only excuse given for this delay was the claim in Chedid's

motion that he "searched for several months for an attorney willing

to take his case and file a new motion to reopen," a vague

explanation that the Board supportably concluded was insufficient

to establish the requisite diligence. See Boakai, 447 F.3d at 3

(finding insufficient evidence of due diligence where petitioner

acknowledged receipt of Board's earlier decision in March 2002,
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current counsel was appointed in October 2002, and motion to reopen

was not filed until April 2003, a year after the Board's final

order was rendered). 

This determination was not arbitrary or capricious.

Chedid's affidavit provides no information whatsoever regarding the

actions he took during the one-year period immediately following

the Board's June 15, 2006 order, and neither his affidavit nor the

accompanying motion provided any detail regarding his efforts to

obtain new counsel. See Jobe, 238 F.3d at 101 n.8 (noting that

alien "bears the burden of making a prima facie showing of

entitlement to equitable tolling, and therefore of filling in any

gaps in the record regarding whether his is a case warranting

equitable relief"). Chedid's claims of ineffective assistance of

counsel with respect to his first motion to reopen "cannot justify

his failure to file the second motion to reopen within the

prescribed period" or, failing that, to explain the "conspicuous

. . . gap [that] exists between the denial of the petitioner's

first motion to reopen and the filing of his second motion to

reopen." Guerrero-Santana, 499 F.3d at 93. 

Given Chedid's failure to demonstrate due diligence,

there is no reason for us to consider whether to invoke equitable

tolling based on Chedid's claim of ineffective assistance of

counsel, or the merits of that ineffective assistance claim. See,

e.g., id. at 93 ("The petitioner has failed to explain how his
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previous counsels' shortcomings caused this failure to comply with

the temporal deadline. The merits of his ineffective assistance of

counsel claim are, therefore, immaterial." (footnote omitted)).

Therefore, we need not review the Board's determination that Chedid

failed to substantially comply with the Lozada requirements. His

dilatory pursuit of the second motion to reopen defeats his claim

for relief. 

Petition denied.