2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-25-2013

Gunvant Patel v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-2667

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2013

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 2013 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

"Gunvant Patel v. Attorney General United States" (2013). 2013 Decisions. Paper 1090.

http://digitalcommons.law.villanova.edu/thirdcircuit_2013/1090
1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2667

___________

GUNVANT KUMAR BECHARBHA PATEL, 

 Petitioner

v.

ATTORNEY GENERAL OF THE

UNITED STATES OF AMERICA,

 Respondent 

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A088-078-121)

Immigration Judge: Honorable Charles M. Honeyman

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 20, 2013

Before: SLOVITER, CHAGARES and GREENBERG, Circuit Judges

(Opinion filed: March 25, 2013 )

___________

OPINION

___________

PER CURIAM
2

Petitioner, Gunvant Kumar Becharbha Patel, seeks review of the Board of 

Immigration Appeals’ (BIA or Board) order denying his second motion to reopen his 

removal proceedings. For the reasons that follow, we will deny the petition for review. 

I.

Patel is a native and citizen of India who entered the United States unlawfully in 

1998. In 2009, the Department of Homeland Security (DHS) charged him with removal 

under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present without being admitted or paroled. 

Patel, represented by counsel, conceded removability as charged, and sought voluntary 

departure in lieu of removal under 8 U.S.C. § 1229c(a). Following a hearing in October 

2010, the Immigration Judge (IJ) granted Patel’s request for voluntary departure.

The following month, Patel obtained new counsel and moved the IJ to reopen his 

removal proceedings. Patel claimed that his former counsel had rendered ineffective 

assistance by failing to advise him that he could seek asylum and related relief based on 

the religious persecution he had allegedly experienced in India. The IJ denied the motion 

to reopen on the grounds that Patel had failed to: (1) establish an ineffective-assistanceof-counsel claim insofar as he failed to comply with the requirements set forth in In re 

Lozada, 19 I. & N. Dec. 637 (BIA 1988); and (2) demonstrate prima facie eligibility for 

asylum, withholding of removal, or protection under the Convention Against Torture 

(CAT). Upon review, the BIA affirmed the IJ’s decision and dismissed Patel’s appeal. 
3

Patel then filed a motion to reopen with the BIA, claiming that he had obtained 

additional documentation concerning his ineffectiveness claim in compliance with the 

requirements of Lozada. The BIA denied the motion on the ground that it was 

numerically barred under 8 C.F.R. § 1003.2(c).1 This petition for review followed. 

II.

We have jurisdiction to review the BIA’s denial of Patel’s motion to reopen 

pursuant to 8 U.S.C. § 1252(a). We review the BIA’s decision denying a motion to 

reopen for an abuse of discretion, and will not disturb the decision unless it is “arbitrary, 

irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) 

(quotation marks and citation omitted). 

An alien has the right to file a motion to reopen removal proceedings and must do 

so within 90 days after the date on which the final administrative decision was rendered 

in the proceeding sought to be reopened. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. 

§ 1003.2(c)(2). An alien in removal proceedings is limited to only one motion to reopen, 

whether before the Board or the IJ. 8 C.F.R. § 1003.2(c)(2). Although we have held that 

the deadline for filing a motion to reopen may be equitably tolled by a showing of 

ineffective assistance of counsel, see Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir.

 

1

The BIA also declined to exercise its authority to reopen the proceedings sua sponte. 

Patel does not challenge this ruling in his petition for review. Therefore, it has been 

waived. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005). In any event, we 

lack jurisdiction to review it. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 

2003). 
4

2005), we have not decided that the numerical limit on motions to reopen may be 

similarly “tolled,” see Luntungan v. Att’y Gen., 449 F.3d 551, 557 (3d Cir. 2006). We 

conclude, however, that even assuming that some equitable principle would, in the proper 

circumstances, permit an alien to file more than one motion to reopen, Patel did not 

demonstrate that he was entitled to any equitable relief here. 

In his second motion to reopen, Patel again claimed that the attorney who 

represented him at his initial removal hearing rendered ineffective assistance, and 

provided new documentation demonstrating that he had complied with the Lozada

requirements in relation to that ineffective-assistance-of-counsel claim. He did not 

recognize that his motion was number-barred, or even attempt to demonstrate that the 

motion should be accepted as a matter of equity. Indeed, such showing would have to be 

based on unfairness surrounding the first motion to reopen—not the underlying 

proceedings—and Patel certainly did not allege that the attorney who filed his first 

motion to reopen provided ineffective assistance or otherwise defrauded him. Under 

these circumstances, the BIA properly denied the motion. See Luntungan, 449 F.3d at 

557-58. 

Because Patel has failed to show that the BIA abused its discretion in determining 

that his second motion was number-barred, we need not reach his other arguments on 

appeal. 

III.
5

For these reasons, we will deny the petition for review.