2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-25-2011

Shaher Alzaarir v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1289

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1289

___________

SHAHER ALZAARIR,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

(Agency No. A095-820-824)

Immigration Judge: Honorable Annie S. Garcy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 9, 2011

Before: RENDELL, JORDAN AND VAN ANTWERPEN, Circuit Judges

(Opinion filed February 25, 2011 )

___________

OPINION OF THE COURT

___________

PER CURIAM

Shaher Alzaarir, a Palestinian citizen who was born in the West Bank when it was 
2

under Jordanian control, 1entered the United States in 2001 as a visitor. In October 2002, 

the Government charged Alzaarir with removability for overstaying his visa. Alzaarir 

conceded the charge, and through his attorney, Yasser Helal, he sought asylum, 

withholding, and protection under the Convention Against Torture. In September 2003, 

the IJ denied his applications and ordered Alzaarir removed to Jordan. Alzaarir, still 

represented by Helal, appealed to the Board of Immigration Appeals (“BIA”). On 

December 27, 2004, the BIA affirmed without opinion the IJ’s decision. The BIA 

granted Alzaarir 30 days in which to depart voluntarily. 

Meanwhile, in May 2004, Alzaarir married a United States citizen and moved to 

Seattle from Pennsylvania. On advice from Helal and an attorney in Seattle, he filed 

Forms I-130 (Visa Petition), I-485 (Application to Adjust Status), and I-765 (Application 

for Employment Authorization). He also faxed copies of the I-130 and I-485 forms to 

Helal so that he could “close out the asylum case.” In January 2005, Alzaarir received his 

work permit; around the same time, he received notice to appear for an interview about 

his marriage. In February 2005, when Helal advised him that he risked arrest if he went 

to the interview, Alzaarir called the BIA’s automated number and learned of the BIA’s 

December 2004 decision. Alzaarir and his wife went to the interview on March 31, 2005, 

where the visa petition was approved. 

 

1 Although the Notice to Appear charged Alzaarir as a native and citizen of Jordan, and 

the Immigration Judge (“IJ”) referred to him as possibly stateless, Alzaarir testified that 
3

On March 25, 2005, Helal submitted a motion to reopen to the BIA on Alzaarir’s 

behalf. On May 17, 2005, the BIA denied the motion for the failure to make a prima 

facie showing of eligibility for relief. The BIA noted that Alzaarir did not submit an I485. The BIA also held that Alzaarir was barred from adjusting his status because he did 

not voluntarily depart before the deadline to do so, January 26, 2005 (and he did not file 

his motion to reopen before then, either). In a footnote, the BIA noted that although Helal 

submitted the motion, he did not enter an appearance, so the BIA treated Alzaarir as 

proceeding pro se. The BIA mailed the decision to an address in Brooklyn where 

Alzaarir lived before moving to Pennsylvania, R. 80, although the BIA had previously 

mailed a notice in the reopening proceedings to Alzaarir’s former Pennsylvania address, 

R. 109. (Alzaarir states that he sent a letter to the BIA informing him of his new Seattle 

address, but he does not describe the official change of address form and none appears in 

the record from that time period).

In June 2005, Alzaarir received a letter ordering him to report for removal. He 

then hired a new attorney, Eric Lin, to reopen his asylum case. In his brief, Alzaarir states 

that Lin worked to reopen his case “proceeding on representations from the DHS

[Department of Homeland Security] attorneys that DHS would agree to reopening as long 

as the background checks were clear.” Petitioner’s Brief 10. However, in the agency, 

Alzaarir described Lin’s work as tenacious but ultimately unsuccessful attempts over 

 

he is a Palestinian citizen, and both parties describe him this way in their briefs. 
4

three years to get an agreement to joint reopening. R. 30. Alzaarir also argued before the 

agency that “evidence shows that the DHS trial attorneys in New York agreed to the 

motion to reopen, contingent on background checks being favorable.” Id. However, the 

evidence provided was a December 26, 2007 e-mail from Lin with the subject “joint 

motion status?” and a message that Lin had not heard from DHS attorney David Cheng 

“regarding this matter” and asking him to let him know the reason for the delay. R. 97. 

Lin also stated in his e-mail that Cheng’s “last word on this was that you would agree to 

reopen some background checks.” Id. Cheng wrote back on December 7, 2007, 

apologizing for not getting back to Lin sooner, and stating that “things with the

background check are just taking a little longer than expected.” Id. He also told Lin, “I 

will stay on top of it and advise you as soon as we have some sort of resolution.” Id. 

In May 2007, Immigration and Customs Enforcement officers arrested Alzaarir. 

He was detained until he was released under an order of supervision in August 2007. 

Thereafter (in his brief, Alzaarir gives the date as August 2008, but he did not provide a 

date to the agency), Alzaarir hired his present counsel to pursue the joint motion to 

reopen. Counsel tried to get DHS to agree to a joint motion to reopen until March 2009, 

when DHS stated that it would not join in the motion. 

On August 10, 2009, Alzaarir, through his current counsel, filed his second motion 

to reopen, alleging ineffective assistance of Helal. Alzaarir alleged that Helal (1) filed a 

deficient appeal brief with the BIA; (2) failed to file a motion to remand based on 
5

Alzaarir’s marriage; (3) failed to file a motion to reopen before the end of the voluntary

departure period; (4) failed to notify Alzaarir that his agency appeal had been dismissed; 

and (5) filed a deficient motion to reopen with the BIA. Alzaarir also stated that he 

substantially complied with the requirements of Matter of Lozada, 19 I. & N. Dec. 637 

(BIA 1988). He sought equitable tolling of the time and number limitations on motions to 

reopen. He also argued that the BIA should exercise its authority to reopen the 

proceedings sua sponte. 

The BIA denied Alzaarir’s motion as time- and number-barred. The BIA held that 

Alzaarir failed to show that he had acted with the reasonable diligence necessary for an 

award of equitable tolling. The BIA highlighted the fact that, in June 2005, Alzaarir 

learned that he had been ordered removed, became “skeptical” of Helal’s advice, and 

hired Lin. The BIA noted that no claim of ineffective assistance was made against Lin, 

who tried without success for three years to persuade DHS to file a joint motion to 

reopen. The BIA also observed that Alzaarir did not reveal when he consulted with his 

current counsel. However, the BIA noted, DHS notified counsel in March 2009 that it 

would not join in a joint motion, but the motion to reopen was not filed until August 10, 

2009. The BIA also declined to reopen the proceedings sua sponte.

Alzaarir submits a petition for review of the BIA’s decision. We have jurisdiction 

pursuant to 8 U.S.C. § 1252(a). Review of the BIA’s decision to deny a motion to reopen 
6

is under a highly deferential abuse of discretion standard.

2

See Guo v. Ashcroft, 386 F. 

3d 556, 562 (3d Cir. 2004). The discretionary decision is not disturbed unless it is found 

to be arbitrary, irrational, or contrary to law. See id. 

We will deny the petition for review because we cannot say the BIA’s decision 

was arbitrary, irrational, or contrary to law. An alien faces number and time limitations 

on filing motions to reopen. Generally, an alien may file only one motion to reopen. See

8 U.S.C. § 1229a(c)(7)(A) (listing an exception not relevant here). Also, most motions to 

reopen must be filed no later than 90 days after the date of the final administrative 

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

second motion to reopen to the BIA more than four and a half years after the BIA 

affirmed the IJ’s order in his case. 

The time limit for filing a motion to reopen is subject to equitable tolling, and 

perhaps the numerical limit is as well. See Borges v. Gonzales, 402 F.3d 398, 406 (3d 

Cir. 2005); Luntungan v. Attorney Gen. of the United States, 449 F.3d 551, 557 & n.15 

(3d Cir. 2006). Ineffective assistance of counsel can serve as a basis for equitable tolling

if substantiated and accompanied by a showing of due diligence. See Mahmood v. 

 

2 We do not consider the BIA’s decision not to reopen the proceedings sua sponte. First, 

it does not appear that Alzaarir challenges that decision. Second, in any event, that 

decision is a discretionary decision beyond our jurisdiction. See Calle-Vujiles v. 

Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003) (“Because the BIA retains unfettered 

discretion to decline to sua sponte reopen or reconsider a deportation proceeding, this 

court is without jurisdiction to review a decision declining to exercise such discretion to
7

Gonzales, 427 F.2d 248, 252 (3d Cir. 2005). Due diligence must be exercised over the 

entire period for which tolling is desired. See Rashid v. Mukasey, 533 F.3d 127, 132 (2d 

Cir. 2008). “This includes both the period of time before the ineffective assistance of 

counsel was or should have been discovered and the period from that point until the 

motion to reopen is filed.” Id.

Alzaarir requested tolling because of Helal’s alleged ineffectiveness, which he 

discovered in June 2005, years before he filed his second motion to reopen. At that point,

when he realized he had been ordered removed, he did hire another attorney, Lin. 

However, Lin, against whom Alzaarir has not made any allegations of ineffective 

assistance of counsel, did not file a motion to reopen. Lin may have tried to persuade 

DHS to agree to a joint motion to reopen to avoid the time and number limitations on 

motions to reopen, see 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(3)(iii). 

However, an alien who delays filing a motion to reopen, while awaiting DHS’s response 

to his counsel’s request to file a joint motion to reopen, until the deadline is past generally 

is not entitled to equitable tolling. See Valeriano v. Gonzales, 474 F.3d 669, 670 (9th Cir. 

2007). 

Alzaarir argues in his brief that he was not merely waiting for a response to his 

request like the alien in Valeriano. He argues that he was exercising diligence because he 

was relying on representations from DHS that it would join in a motion to reopen if his 

 

reopen or reconsider the case.”) 
8

background checks did not reveal anything negative.3 He states that evidence in the 

record supports his claim. However, the BIA was not presented with proof of a 

conditional promise of a joint motion. As we described in more detail above, Alzaarir 

informed the BIA that Lin worked hard to get an agreement but was ultimately 

unsuccessful. In the agency, he also stated he had evidence of an agreement, but the 

evidence he presented – the e-mail exchange between Lin and Cheng from December 

2007 – did not show that an agreement had been reached. Furthermore, the BIA 

considered that even when DHS informed Alzaarir’s current counsel that DHS would not 

join a joint motion, it was not until several months later that Alzaarir filed his second 

motion to reopen. 

Given the record in this case, the BIA did not abuse its discretion in concluding

that Alzaarir did not exercise the diligence necessary to win equitable tolling and in 

consequently denying his motion to reopen. Accordingly, we will deny the petition for 

review.

 

3

The Government asks us not to consider an argument for tolling based on reliance 

because it was not presented to the agency. We consider the argument only in the context 

it was and is presented, namely, as support for diligence under the circumstances.