United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-3466

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Victorine Nakue Pafe, * 

*

Petitioner, *

 * Petition for Review from the 

v. * Board of Immigration Appeals. 

* 

Eric H. Holder, Jr., Attorney *

General of the United States, *

* 

Respondent. *

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Submitted: June 17, 2010 

Filed: August 11, 2010

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Before LOKEN, BRIGHT and GRUENDER, Circuit Judges.

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PER CURIAM.

Victorine Pafe, a native of Cameroon, filed an asylum application on April 11,

2002. A hearing before an Immigration Judge (“IJ”) was scheduled for November 7,

2002. However, Pafe’s attorney informed her that she was not required to attend. The

day before the hearing, Pafe learned that her attorney’s advice was incorrect, but she

could not travel to the hearing location in time. The IJ entered an in abstentia removal

order against her. On June 13, 2008, Pafe filed a motion to reopen her case, which the

IJ and the Board of Immigration Appeals (“BIA”) denied as untimely. Pafe now

petitions for review of the BIA’s decision, arguing that her two previous attorneys’
performances were deficient and that the deadline for filing her motion to reopen

should therefore be equitably tolled.

“We review the BIA’s denial of a motion to reopen removal proceedings for an

abuse of discretion.” Kanyi v. Gonzales, 406 F.3d 1087, 1089 (8th Cir. 2005). By

statute, an alien has 180 days to move to reopen an in abstentia removal order. 8

U.S.C. § 1229a(b)(5)(C)(i). “In general, a filing period may be equitably tolled if the

applicant seeking such relief demonstrates that he has exercised due diligence in

pursuing his case during the period he seeks to toll.” Kanyi, 406 F.3d at 1090. We

have left open the question whether the 180-day time period for reopening an in

abstentia removal order is subject to equitable tolling. See id. We need not decide the

issue here because we hold that, even assuming the time limit is generally subject to

equitable tolling, the BIA did not abuse its discretion in denying Pafe’s motion to

reopen. See id.

Pafe grounds her argument for equitable tolling of the 180-day time period on

the deficient performance of her attorneys. As noted, her first attorney, Bokwe Mofor,

incorrectly informed her that she did not need to attend the initial hearing before the

IJ. After the in abstentia removal order was entered, Mofor assured Pafe that he

would file a motion to reopen, but he failed to do so. Six months later, Pafe went to

inquire about the status of her case, and Mofor informed her that he had filed the

motion. Pafe was given a copy of the motion that Mofor said he filed, which had her

name and alien number on it but a factual exposition that did not relate to her case.1

1

Pafe told the IJ that Mofor himself gave her the motion, and the IJ relied on her

possession of the facially fraudulent motion as evidence of her lack of diligence,

reasoning that had she read the motion she would have recognized Mofor’s deficient

performance. At oral argument on appeal, Pafe’s current attorney stated that Mofor

did not give Pafe the motion, but rather her second attorney found the motion in the

file he obtained from Mofor. Because “our judicial review is limited to the

administrative record,” Averianova v. Holder, 592 F.3d 931, 937 n.6 (8th Cir. 2010)

(quoting Lukowski v. INS, 279 F.3d 644, 646 (8th Cir. 2002)), we cannot consider this

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In 2005, three years after she hired Mofor to work on her asylum application, Pafe

learned that Mofor intended to move back to Cameroon. Pafe then hired new counsel,

Robert Oswald. Oswald told Pafe that he would file both a motion to reopen

proceedings before the IJ and a bar disciplinary complaint against Mofor. Oswald

never filed either document. Pafe occasionally tried to contact Oswald to inquire

about her case, but she was never able to speak to him. After three more years, Pafe

hired her present counsel.

In the immigration context, the doctrine of equitable tolling is “sparingly

invoked” for ineffective-assistance-of-counsel claims. Habchy v. Gonzales, 471 F.3d

858, 864 (8th Cir. 2006) (citation omitted). To invoke equitable tolling, “aliens must

exercise due diligence in ‘discovering the deception, fraud, or error’ giving rise to the

ineffective assistance of counsel.” Id. (quoting Iturribarria v. INS, 321 F.3d 889, 897

(9th Cir. 2003)). The BIA found, and the Government does not dispute, that Pafe has

shown fraud and deception on the part of her previous attorneys. However, Pafe has

failed to show that she exercised the requisite diligence. Oswald unquestionably

informed Pafe of Mofor’s previous failures as an attorney, telling her that he would

file an attorney disciplinary complaint against Mofor. At least by that point Pafe

knew, or should have known, that such conduct on the part of her attorney was cause

for concern, particularly given that she knew as early as 2002 that an in abstentia

order of removal had been entered against her. Nonetheless, when Oswald repeated

Mofor’s lengthy course of inaction and when Pafe saw her case still was not

progressing, she again waited three years before hiring new counsel. In total, Pafe has

waited nearly six years to file her motion to reopen. Especially with respect to her

delay in addressing Oswald’s ineffectiveness, the BIA did not abuse its discretion in

holding that Pafe has not acted diligently and was not entitled to equitable tolling of

the deadline for filing a motion to reopen. 

belated attempt to alter the factual record.

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The Supreme Court’s recent decision discussing equitable tolling in the habeas

context, Holland v. Florida, 560 U.S. ---, 130 S. Ct. 2549 (2010), does not change this

outcome. While the Court found that Holland was diligent, noting that “[t]he

diligence required for equitable tolling purposes is ‘reasonable diligence,’ not

‘maximum feasible diligence’” id. at 2565 (citations omitted), the facts showing

Holland’s diligence are far removed from this case.

Holland not only wrote his attorney numerous letters seeking crucial

information and providing direction; he also repeatedly contacted the

state courts, their clerks, and the Florida State Bar Association in an

effort to have [his attorney]—the central impediment to the pursuit of his

legal remedy—removed from his case. And, the very day that Holland

discovered that his AEDPA clock had expired due to [his attorney’s]

failings, Holland prepared his own habeas petition pro se and promptly

filed it with the District Court.

Id. In contrast, Pafe, as previously discussed, waited nearly three years before hiring

new attorneys to replace each of her ineffective ones and did not file her motion to

reopen until over five years after it was due. Accordingly, Pafe has not shown even

“reasonable diligence,” and her petition for review is denied.

BRIGHT, Circuit Judge, dissenting.

I dissent. Given the terrible advice, misleading and false information, and

obvious misconduct by licensed attorneys representing petitioner Ms. Pafe, Ms. Pafe

should be given another opportunity to reopen her proceedings to permit her to seek

asylum in this country. 

As noted by the majority, the petitioner in Holland v. Florida, 560 U.S. ---, 130

S.Ct. 2549 (2010), took action much more quickly than did Ms. Pafe. However, the

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incompetence of counsel representing Holland, although it occurred in a criminal

context, was much the same as that experienced by Ms. Pafe. 

 The factual underpinning and reasoning leading the Supreme Court in Holland

to rule that equitable tolling might lie for petitioner Holland is sound and proper

precedent for this court to remand Ms. Pafe’s claim for additional consideration by the

IJ. In Holland, counsel ignored the petitioner’s repeated requests for information

regarding the status of his case, misadvised the petitioner regarding the applicable law

relevant to tolling of the limitations period, and ignored the petitioner’s numerous

requests to file a timely § 2254 petition. 

Ms. Pafe received similar treatment from her attorneys. Bokwe Mofor, Ms.

Pafe’s first attorney, gave her inaccurate advice that she did not have to attend the

hearing on the removal petition; falsely advised Ms. Pafe that he had filed a motion

to reopen; and was generally evasive and not responsive to her various requests

regarding the status of her case, repeatedly advising her to be patient. 

Six months after Ms. Pafe asked Mofor to file a motion to reopen, she followed

up with Mofor, inquiring about the status of her case. Mofor advised her to be patient. 

Ms. Pafe nevertheless continued to make efforts to contact Mofor. Upon learning

Mofor was moving out of the country, Ms. Pafe immediately secured new counsel. 

Robert Oswald, Ms. Pafe’s second attorney, agreed to file a motion to reopen,

but never did, despite having been paid a substantial sum of money to do so. In

response to Ms. Pafe’s repeated attempts to contact Oswald over the next two years,

his staff assured Ms. Pafe that her case was proceeding and that they were waiting for

a response to a FOIA request.2

 

2

Upon being retained by Ms. Pafe, Oswald requested, pursuant to the Freedom

of Information Act, that U.S. Citizenship and Immigration Services forward to him

a copy of Ms. Pafe’s file. Oswald gave Ms. Pafe an unsigned copy of the FOIA

request. 

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This new counsel, Oswald, and his staff led Ms. Pafe to believe that her case

was proceeding properly. Nothing in the record put Ms. Pafe on notice that her

attorneys, or their representatives, were lying to her and that she should have acted

sooner than she did. See, e.g., Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005)

(petitioner claimed owner of immigration service lied when she told petitioner that he

would be represented by one of service’s attorneys, filed motion containing substantial

errors in wrong court, provided improper legal advice, and lied that in absentia order

of removal had been “taken care of”; such fraud, if proven, warrants equitable tolling);

see also Rodriguez-Lariz v. INS, 282 F.3d 1218, 1224-25 (9th Cir. 2002) (counsel’s

“fraudulent” representation, characterized by failure to file motion by deadline and

then lying and telling petitioners that motion had been filed, but was lost by IJ, misled

petitioners to believe that their representatives were proceeding effectively and 

justified equitable tolling of time to reopen deportation proceedings)\

We are aware of the lengthy time period in this case–approximately six years

between initial denial and the filing by present counsel of a motion to reopen her case. 

This lengthy time period is important, but without evidence of lack of diligence by

Ms. Pafe, it is not enough to reject her motion to reopen in light of the record as a

whole.

 Accordingly, I would grant the petition for review, and remand the matter to the

BIA with orders that it allow the IJ to reopen Ms. Pafe’s removal hearing, and allow

the parties to supplement the record on the issue of due diligence, if either or both

parties wish to do so. 

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