2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-5-2006

Luntungan v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 05-2397

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-2397

 

JULIAN BASTIAN LUNTUNGAN,

 Petitioner

 v.

ATTORNEY GENERAL OF THE

UNITED STATES;

SECRETARY OF DEPARTMENT OF

HOMELAND SECURITY; 

MICHAEL ANDERSON, 

as Acting Director of the Newark, New Jersey

Field Office of the Bureau of Immigration

and Customs Enforcement; UNITED

STATES DEPARTMENT OF JUSTICE and

UNITED STATES DEPARTMENT OF

HOMELAND SECURITY

 

Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

(Board No. A96-266-204)

 
2

Argued April 3, 2006

Before: RENDELL, SMITH, and BECKER*, Circuit Judges.

(Filed June 5, 2006 )

 

LAWRENCE SPIVAK (ARGUED)

150 Broadway, Sutie 1400

New York, NY 10038

 Attorney for Petitioner

LINDA S. WERNERY

JANICE K. REDFERN (ARGUED)

WILLIAM C. PEACHEY

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878 

Ben Franklin Station

Washington, DC 20044

 Attorneys for Respondents

 

 *This case was argued before the panel of Judges Rendell,

Smith and Becker. Judge Becker died on May 19, 2006, before

the filing of the Opinion. The decision is filed by a quorum of

the panel. 28 U.S.C. § 46(d).
3

 

OPINION OF THE COURT

 

PER CURIAM.

Julian Bastian Luntungan, a native and citizen of

Indonesia and the petitioner in this case, failed to attend two

consecutive removal hearings, and an Immigration Judge (“IJ”)

ordered him removed in absentia. Luntungan then filed three

consecutive motions to reopen, which the IJ denied, and

Luntungan appealed the denial of the third motion to the Board

of Immigration Appeals (“BIA”). Reviewing the denial of the

third motion, the BIA agreed with the IJ that Luntungan was

permitted to file only one motion to reopen. This conclusion, of

course, required the denial of his third motion.

Addressing Luntungan’s petition for review, we first

conclude that under the plain language of both the Immigration

and Nationality Act and a BIA regulation, an alien ordered

removed in absentia may file only one motion to reopen. See 8

U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.23(b)(4)(ii). We then

consider Luntungan’s contention that we should read an

exception into the one motion rule because his attorney was

ineffective in preparing the first motion to reopen. Other courts

have referred to exceptions to the one motion rule as a form of
See, e.g., Iturribarria v. I.N.S., 321 F.3d 889, 897 (9th Cir.

1

2003). We note, however, that the term may not be entirely

accurate, for tolling, by definition, applies to time limits, not

numerical limits. See Black’s Law Dictionary 1525 (8th ed. 2004)

(defining “toll” as “(Of a time period, esp. a statutory one) to stop

the running of; to abate <toll the limitations period>”).

4

equitable tolling. We leave open the possibility that some 1

equitable principle would, in the proper circumstances, permit

an alien to file more than one motion to reopen, but whatever its

bounds, equitable tolling will not aid Luntungan. Even

assuming that the alleged ineffectiveness of Luntungan’s first

attorney deprived him of a fair chance to be heard on his first

motion to reopen, the IJ denied Luntungan’s second motion for

reasons unrelated to the one motion rule, and Luntungan does

not claim that the attorney who filed the second motion rendered

ineffective assistance of counsel. Thus, even assuming that

Luntungan’s first motion to reopen did not provide a fair chance

to be heard, any procedural unfairness was remedied when the

IJ considered the second motion. We therefore deny

Luntungan’s petition for review.

I. Facts

Luntungan was admitted to the United States in June

1995, with permission to remain until December 15, 1995. In

April of 2003, Luntungan applied for asylum. He asserted that

his house had been burned down, and that he feared persecution

in Indonesia because he is a practicing Christian and ethnically

Chinese. The former Immigration and Naturalization Service
The statute provides: 2

Consequences of failure to appear

5

then served Luntungan with a Notice to Appear, charging him

with removability on the ground that he remained in the United

States longer than his visa permitted. The Notice to Appear

stated that Luntungan’s removal hearing would occur in New

York, New York on May 6, 2003, but the New York

Immigration Court later granted Luntungan’s motion for a

change of venue to New Jersey. 

Luntungan’s attorney then received a Notice of Hearing

from the Immigration Court in Newark, New Jersey. The Notice

of Hearing stated that if Luntungan failed to appear on

December 9, 2003, an order of removal could be entered against

him. On September 2, 2003, the Newark Immigration Court

sent Luntungan’s attorney a second Notice of Hearing, which

moved the date of the hearing forward to September 19, 2003.

On September 22, 2003, the Newark Immigration Court sent

another Notice of Hearing to Luntungan’s attorney, changing the

hearing date to October 28, 2003.

Luntungan failed to appear for the October 28, 2003

hearing, and the IJ rescheduled the hearing for November 4,

2003. Luntungan again failed to appear on November 4.

Therefore, the IJ ordered Luntungan removed under §

240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A), which authorizes in

absentia removal orders. 

2
(A) In general

Any alien who, after written notice . . . has been

provided to the alien or the alien’s counsel of record,

does not attend a proceeding under this section, shall

be ordered removed in absentia if the Service

establishes by clear, unequivocal, and convincing

evidence that the written notice was so provided and

that the alien is removable. . . .

8 U.S.C. § 1229a(b)(5)(A).

In his reply brief, Luntungan states that he is “not seeking 3

this Court’s review of the two initial motions to reopen.”

6

Luntungan responded by filing a series of motions to

reopen. We emphasize that Luntungan asks us to review only

the denial of his third motion.3

First Motion To Reopen. Luntungan first moved to

reopen proceedings on January 20, 2004. In an affidavit

attached to the motion, Luntungan implied that his attorney had

written him a letter informing him of the rescheduled hearing.

However, he stated that he did not receive any such letter.

Luntungan did not allege at this stage that his attorney was

ineffective in failing to notify him of the rescheduled hearing;

indeed, the same attorney continued to represent him. The IJ

denied the motion, stating that Luntungan’s attorney was

properly notified of the rescheduled hearing and that Luntungan

did not allege that his attorney provided ineffective assistance.
We have explained that to comply with Lozada, a motion 4

to reopen based on ineffective assistance of counsel must meet

7

Second Motion To Reopen. On March 5, 2004,

Luntungan, represented by new counsel, filed a second motion

to reopen. Luntungan now asserted that he missed his hearing

dates due to the ineffective assistance of his former attorney. In

a new affidavit, Luntungan stated that he did not learn about the

date changes until he visited his former attorney’s office prior to

the original hearing date, but after he had missed the two

rescheduled hearings.

Luntungan also asserted that his attorney was ineffective

in preparing his first motion to reopen. He stated that the

affidavit accompanying his first motion had not been translated

to him, despite his inability to read English. He claimed that if

he had understood his affidavit, he would not have

acknowledged that his former attorney attempted to

communicate the date changes to him.

On the same day that he filed the second motion to

reopen, Luntungan lodged a disciplinary complaint against his

former attorney with the appropriate ethics committee.

However, the complaint was not attached to the motion to

reopen. 

The IJ denied Luntungan’s second motion to reopen,

stating that his ineffective assistance claim did not meet the

requirements of Matter of Lozada, 19 I.&N. Dec. 637 (BIA

1988). First, Luntungan failed to provide evidence that his 4
three requirements: 

(1) the alien’s motion must be supported by an

“affidavit of the allegedly aggrieved [alien] attesting

to the relevant facts”; (2) “former counsel must be

informed of the allegations and allowed the

opportunity to respond,” and this response should be

submitted with the motion; and (3) “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.”

Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005) (citing Lozada,

19 I.&N. Dec. at 639).

8

former attorney was informed of the ineffective assistance

allegations and given an opportunity to respond. Second,

Luntungan neither provided evidence that he filed a formal

disciplinary complaint nor explained his failure to do so. 

Third Motion To Reopen. On May 12, 2004, Luntungan

filed a third motion to reopen. This time, he sought to comply

with the Lozada requirements by attaching both the complaint

lodged against his former attorney and an affidavit from his new

attorney, which chronicled discussion between the new attorney

and the former attorney about the disciplinary complaint.
It is not clear why the IJ denied the second motion to 5

reopen on the basis of Lozada, rather than applying the one motion

rule.

9

The IJ denied the motion, concluding that under the

relevant regulations, Luntungan was entitled to file only one

motion to reopen. Luntungan appealed the denial of the third 5

motion to the BIA, which issued a one paragraph opinion

affirming the IJ’s decision. Luntungan now petitions for review

of the denial of his third motion to reopen.

II. Jurisdiction and Standard of Review

We have jurisdiction to review the denial of Luntungan’s

third motion to reopen under 8 U.S.C. § 1252, which provides

for judicial review of final orders of removal. Ordinarily, the

denial of a motion to reopen is reviewed for abuse of discretion.

Caushi v. Attorney General, 436 F.3d 220, 225 (3d Cir. 2006).

This case, however, turns entirely on questions of law. “We

review the BIA’s legal decisions de novo, but will afford

Chevron deference to the BIA’s reasonable interpretations of

statutes which it is charged with administering.” Kamara v.

Attorney General, 420 F.3d 202, 211 (3d Cir. 2005) (citations

omitted).

III. Analysis 

A.

Section 240 of the Immigration and Nationality Act
Subparagraph (C)(iv), which bears the heading “Special 6

rule for battered spouses, children, and parents,” does not apply

here. See 8 U.S.C. § 1229a(c)(7)(C)(iv).

Ordinarily, an alien must file a motion to reopen within 90 7

days of the entry of a final order of removal. 8 U.S.C. §

1229a(c)(7)(C)(I). However, a different time period applies to an

alien who, like Luntungan, is ordered removed in absentia. Such

an alien may file a motion to reopen within 180 days of an order of

removal “if the alien demonstrates that the failure to appear was

because of exceptional circumstances” or “at any time” if the alien

demonstrates that he did not receive required notice of the

proceedings. 8 U.S.C. §§ 1229a(b)(5)(C)(I) & (ii). While these

provisions create specialized rulesfor the time period during which

a motion to reopen may be filed by an alien ordered removed in

10

(INA), which governs removal proceedings, states that an alien

who is ordered removed may file only one motion to reopen:

Motions to reopen

(A) In general

An alien may file one motion to reopen

proceedings under this section, except that this

limitation shall not apply so as to prevent the

filing of one motion to reopen described in

subparagraph (C)(iv).6

 8 U.S.C. § 1229a(c)(7).7
absentia, they do not refer to the number of motions that such an

alien may file. Rather, the general provision governing motions to

reopen, 8 U.S.C. § 1229a(c)(7), applies, permitting only one

motion to reopen.

See also 8 U.S.C. § 1229a(a)(1) (stating that in removal 8

proceedings, “[a]n immigration judge shall conduct proceedings for

11

BIA regulations confirm that an alien ordered removed

in absentia may file only one motion to reopen:

Order entered in absentia or removal proceedings.

An order of removal entered in absentia or in

removal proceedings pursuant to section

240(b)(5) of the Act [8 U.S.C. § 1229a(b)(5)] may

be rescinded only upon a motion to reopen . . . .

An alien may file only one motion pursuant to this

paragraph.

8 C.F.R. § 1003.23(b)(4)(ii) (emphasis added).

Separate statutes and regulations apply to an alien who is

ordered deported or excluded—as opposed to removed—in

absentia. As the Supreme Court has explained, “[r]emoval is a

new procedure,” created by the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA). Jama v.

Immigration and Customs Enforcement, 543 U.S. 335, 349

(2005). As a result of IIRIRA, removal proceedings combine

“two previously distinct expulsion proceedings, ‘deportation’

and ‘exclusion.’” Id. An alien who would have been placed in 8
deciding the inadmissibility or deportability of an alien.”).

See also Lara-Torres v. Ashcroft, 383 F.3d 968, 973 (9th 9

Cir. 2004) (stating that no due process violation occurs where a

petitioner would have been placed in deportation proceedings preIIRIRA, but is placed in removal proceedings post-IIRIRA).

See Lopez v. I.N.S., 184 F.3d 1097, 1099 n.2 (9th Cir.

10

1999) (“[Section] 1252b was repealed by IIRIRA, whose rules do

not apply to aliens . . . who were in exclusion or deportation

proceedings as of April 1, 1997.”) (citations omitted); Pub. L. No.

104-208, 110 Stat. 3009-546, 3009-625 (stating that IIRIRA’s

amendments to the INA do not apply to aliens in deportation

proceedings prior to the effective date of IIRIRA).

12

deportation or exclusion proceedings prior to April 1, 1997, is

now placed in removal proceedings. Galicki v. INS, No. 02-cv4586, 2003 WL 21781946 (E.D.N.Y. Aug. 1, 2003), at *2.9

Under the statute that applies to pre-IIRIRA proceedings,

8 U.S.C. § 1252b, there is no limit on the number of motions to

reopen that an alien may file. Indeed, the statute does not

mention motions to reopen. See 8 U.S.C. § 1252b (repealed

1996). The old statute continues to apply to aliens who were

placed in proceedings before April 1, 1997, the effective date of

IIRIRA. 

10

The BIA has also promulgated regulations that apply to

aliens placed in proceedings before April 1, 1997. Under these

regulations, an alien who is ordered deported in absentia may
Title 8 C.F.R. § 1003.23(b)(4)(iii)(D) provides: 11

The time and numerical limitations set forth in

paragraph (b)(1) of this section shall not apply to a

motion to reopen filed pursuant to the provisions of

paragraph (b)(4)(iii)(A) of this section.

Paragraph (b)(1) permits only one motion to reopen, and paragraph

(b)(4)(iii)(A) refers to motions to reopen following an “order

entered in absentia in deportation proceedings.” Thus, under §

1003.23(b)(4)(iii)(D), the numerical limit on motions to reopen

does not apply to in absentia deportation orders. 

Luntungan concedes as much in his reply brief. 

12

See Joshi v. Ashcroft, 389 F.3d 732 (7th Cir. 2004) (stating 13

that 8 C.F.R. § 1003.23(b)(4)(ii) deals with removal proceedings

as distinguished from deportation proceedings and provides that

“only one motion to reopen a removal proceeding may be filed”);

Akwada v. Ashcroft, No. 02-2078, 2004 WL 2538212, at *4 n.5

(4th Cir. Nov. 10, 2004) (“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. Akwada, however, was subject to removal

13

file an unlimited number of motions to reopen. However, 11

these regulations do not apply to an alien, such as Luntungan,

who is placed in proceedings after April 1, 1997. An alien 12

such as Luntungan is subject to the one motion rule laid out in

8 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.23(b)(4)(ii). 

13
proceedings, to which stricter limits apply.”) (citing 8 C.F.R. §§

1003.23(b)(4)(ii) & (iii)(D)); Fajardo v. I.N.S., 300 F.3d 1018,

1020 (9th Cir. 2002) (distinguishing the regulations governing in

absentia removal orders from those governing in absentia

deportation orders).

The footnote, which appeared in the section of the Borges 14

opinion devoted to facts and procedural history, was designed only

to explain why the IJ allowed a second motion to reopen. See 402

F.3d at 402 n.5. 

14

In Borges v. Gonzales, we stated in a footnote, “[w]hen

an order of removal is issued in absentia . . . the regulations are

more lenient and it appears that multiple motions to reopen may

be filed by the alien.” 402 F.3d 398, 402 n.5 (3d Cir. 2005)

(emphasis added) (citing Saakian v. INS, 252 F.3d 21, 25 (1st

Cir. 2001); 8 C.F.R. § 1003.23(b)(4)(iii)(D)). As the foregoing

discussion demonstrates, this statement is questionable: An alien

may not file multiple motions to reopen an in absentia order of

removal, as distinguished from an in absentia order of

deportation. Moreover, the Borges footnote is dicta, and it

addresses an issue not central to the holding in that case.14

Declining to follow the Borges footnote, we hold that under 8

U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.23(b)(4)(ii), an alien

ordered removed in absentia may file only one motion to reopen.

B.

Luntungan argues that although the INA permits but one

motion to reopen, the numerical limit should be equitably
The Ninth Circuit “recognizes equitable tolling of 15

deadlines and numerical limits on motions to reopen or reconsider

during periods when a petitioner is prevented from filing because

of deception, fraud, or error, as long as the petitioner acts with due

15

“tolled,” allowing him to file multiple motions to reopen.

Strictly defined, equitable tolling is “[t]he 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 579

(8th ed. 2004). Equitable tolling of statutes of limitations has a

venerable history. See Holmberg v. Armbrecht, 327 U.S. 392,

397 (1946) (stating that in cases of fraud, equitable tolling “is

read into every federal statute of limitation”); Borges, 402 F.3d

at 406 (discussing the “old chancery rule” that a statute of

limitations will be tolled for fraud). 

In recent cases, we have applied equitable tolling to the

time periods during which an alien may file a motion to reopen.

As discussed above, see supra note 7, an alien ordered removed

in absentia has 180 days to file a motion to reopen arguing that

he failed to appear due to exceptional circumstances. See 8

U.S.C. 1229a(b)(5)(C)(I). We have held that this time period is

subject to equitable tolling. See Borges, 402 F.3d at 406;

Mahmood v. Gonzales, 427 F.3d 248, 249 (3d Cir. 2005). 

We have not issued a precedential opinion deciding

whether numerical limits on motions to reopen may be equitably

tolled, and we note that other circuits have stated different

views on the issue. Even assuming, arguendo, that the one 15
diligence in discovering the deception, fraud, or error.”

Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (citations

omitted); see also Varela v. INS, 204 F.3d 1237, 1240 (9th Cir.

2000); Davies v. INS, No. 00-1773, 2001 WL 608982 (4th Cir.

June 5, 2001) (allowing equitable tolling). The Sixth Circuit,

however, seems doubtful that the numerical limit may be equitably

tolled and has “never held that equitable tolling applies to

numerical limitations on motions to reopen.” Sene v. Gonzales,

No. 04-3794, 2006 WL 994173, at *4 (6th Cir. Apr. 14, 2006).

16

motion limit is subject to equitable tolling, we hold that

equitable tolling does not apply here. 

Luntungan alleges that his first counsel, who filed the

first motion to reopen, was ineffective. Under the doctrine of

equitable tolling, Luntungan might be entitled to file a second

motion. But in effect, Luntungan already received this form of

relief: Luntungan’s new counsel filed a second motion to

reopen, which the IJ rejected because Luntungan failed to

comply with the Lozada requirements. Only when Luntungan

filed his third motion did the IJ deny it as numerically barred. 

To demonstrate that the IJ erred in denying his third

motion to reopen as numerically barred, Luntungan must show

that equitable considerations should permit him to file the third

motion. This showing would have to be based on unfairness

surrounding the second motion to reopen. After all, if the

second motion gave Luntungan a fair chance to be heard, there

is no equitable reason to permit a third motion. 
Because we conclude that the one motion rule disposes of 16

this case, we do not reach Luntungan’s argument that he is also

entitled to equitable tolling of the 180-day window in which an

alien ordered removed in absentia must file a motion to reopen.

See 8 U.S.C. § 1229a(b)(5)(C)(I).

17

Luntungan does not allege that the attorney who filed the

second motion defrauded him or otherwise provided ineffective

assistance. Consequently, we conclude that the second motion

gave Luntungan a fair chance to be heard. Equity requires

nothing more, and we deny the petition for review.16