2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-14-2011

Shaher Alzaarir v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 10-1289

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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. A95-820-824)

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)
2

Manuel F. Rios, Esq.

Rios & Cruz 

811 First Avenue

Suite 200

Seattle, WA 98104

 Counsel for Petitioner

(Shelley Goad, Esq.

(Julia J. Tyler, Esq.

United States Department of Justice

Office of Immigration

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

 Counsel for Respondent

___________

OPINION OF THE COURT

___________

PER CURIAM

Shaher Alzaarir, a Palestinian citizen who was born in 

the West Bank when it was under Jordanian control,1entered 

the United States in 2001 as a visitor. In October 2002, the 

 

1Although 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 he 

is a Palestinian citizen, and both parties describe him this way 

in their briefs. 
3

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 I130 (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. 

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 I-485. 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 
4

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 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 email 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 email that Cheng‟s “last word on this was that you would agree 

to reopen some background checks.” Id. Cheng wrote back 
5

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 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 
6

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 is under a highly deferential abuse of discretion 

standard.2See 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 

 

2We 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 CalleVujiles 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 reopen or reconsider the case.”) 
7

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. 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 
8

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 background checks did 

not reveal anything negative. He states that evidence in the 

record supports his claim. Courts have allowed equitable 

tolling of the time period for filing a motion to reopen where 

the Government has misled a petitioner about what course of 

action to follow. See, e.g., Socop-Gonzalez v. INS, 272 F.3d 

1176 (9th Cir. 2001) (en banc). The Court of Appeals for the 

Ninth Circuit also has intimated that tolling “might be 

justified” where counsel for the Government tells an alien‟s 

counsel who was contemplating filing a motion to reopen,

“„don‟t do anything yet, we may agree [to a joint motion], 

hold off.‟” Valeriano, 474 F.3d at 674 (citing SocopGonzalez). Accordingly, if the Government really made 

representations that it was going to agree to a joint motion, 

tolling might be appropriate even though the representations 

could only be considered in evaluating the diligence of the 

petitioner in this case. 3 

 

3

The Government asks us not to consider an argument for 

tolling based on reliance because it was not presented to the 
9

However, despite the petitioner‟s claims, the BIA was 

not presented with proof of a conditional promise of a joint 

motion or evidence of the situation for which the Valeriano

court suggested tolling may be appropriate. 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. 

 

agency. We consider the argument only in the context it was 

and is presented, namely, as support for diligence under the 

circumstances.