2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-30-2008

Mowla v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4165

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-4165

 

NAEEMGOLAM MOWLA;

KISWARA PARVEEN MOWLA;

TAHASHANJIM MOWLA,

 Petitioners

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

(BIA Nos. A72-784-760, A73-675-573

and A73-664-914)

Immigration Judge: Honorable Annie S. Garcy

 

Submitted Under Third Circuit LAR 34.1(a)

January 29, 2008

Before: SCIRICA, Chief Judge, and RENDELL, Circuit Judges

and THOMPSON, *District Judge.

(Filed: January 30, 2008)

 

*Honorable Anne E. Thompson, Senior Judge of the United States District Court for the

District of New Jersey, sitting by designation. 
2

 

OPINION OF THE COURT

 

RENDELL, Circuit Judge.

Naeemgolam Mowla, with his wife, Kiswara, and son, Tahashanjim, as derivative

riders, petitions for review of the order of the Board of Immigration Appeals (“BIA”)

denying petitioner’s third motion to reopen. Mowla argues that the BIA ignored his due

process claim regarding counsel’s ineffectiveness and abused its discretion in denying

petitioner’s motion to reopen. For the reasons below, we will deny Mowla’s petition for

review.

Petitioners, natives and citizens of Bangladesh, were admitted to the United States

on November 23, 1993, with authorization to remain until May 22, 1994. On February

28, 1994, petitioner Naeemgolam Mowla applied for asylum with his wife and son as

derivative riders on his application. His application was denied, and, after a hearing on

the merits, the IJ denied petitioners’ requests for asylum and withholding of removal, a

decision that the BIA and this Court subsequently affirmed. 

On July 23, 2004, petitioners filed a motion to reopen, arguing that political

situation had become worse and lead petitioner’s brother had been attacked. The BIA

denied the motion. Petitioners appealed to this Court, but appellate counsel defaulted on

the filing of the brief and appendix and the appeal was dismissed. A second motion to

reopen was filed in which petitioners argued that counsel had been ineffective. The BIA
3

denied the motion for exceeding numerical limitations, failing to show changed country

conditions, and failing to meet the Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988),

criteria necessary to show ineffective assistance of counsel. Petitioners filed a third

motion to reopen on May 22, 2006 on the basis that country conditions had changed after

recent elections, lead petitioner’s brother had gone into hiding after attacks, and prior

counsel had been ineffective. The motion was accompanied by a declaration of counsel,

an affidavit from Mowla, the BIA’s November 2, 2004 decision, two web articles, and

petitioners’ complaint against their prior attorney. App. at 6-26. On August 22, 2006, the

BIA denied that motion for exceeding numerical limitations, failing to establish that

recent Bangladeshi elections were material to petitioners’ claims, and not showing that

the alleged ineffective assistance of counsel prejudiced their case before the IJ or BIA, as

required by Lozada. 

A motion to reopen is typically barred after ninety days. 8 C.F.R. § 1003.2(c)(2). 

This limit does not apply however if the motion seeks relief “based on changed

circumstances arising in the country [of removal], if such evidence is material and was

not available and could not have been discovered or presented at the previous hearing.” 8

C.F.R. § 1003.2(c)(3)(ii). In addition to submitting previously unavailable evidence and

showing worsened country conditions, the motion to reopen “must establish prima facie

eligibility for [the requested relief].” Guo v. Ashcroft, 386 F.3d 556, 563 (3d Cir. 2004).

We will not disturb the BIA’s denial of a motion to reopen unless it is “‘arbitrary,
4

irrational, or contrary to law.’” Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005)

(citations omitted).

The BIA did not act arbitrarily in ruling that petitioners failed to establish changed

country conditions. Mowla failed to present objective evidence demonstrating that the

country conditions had worsened since his original hearing or that the changed conditions,

in this case Bangladeshi elections, would affect him. The articles petitioners submitted

did not show changed circumstances; rather, one suggested improved country conditions

and the other confirmed a political situation that remains turbulent. Mowla’s affidavit

similarly provided little new information. In the affidavit, he did claim that his brother

had been attacked because his brother was politically active; this, however, contradicted

previous testimony. It was not an abuse of discretion for the BIA to consider the

evidence insufficient to show materially changed country conditions.

Additionally, petitioners contend that the BIA “improperly ignored the due process

violation arising from [prior counsel’s] ineffective assistance.” Appellant’s Br. at 16. 

Their claim of ineffective assistance stems from prior counsel’s failures in filing an

appeal of the BIA’s denial of their initial motion to reopen to this Court. Petitioners,

however, have no constitutional right to effective assistance of counsel in civil

proceedings at the appellate level. See Wainwright v. Torna, 455 U.S. 586, 587-88

(1982); Magala v. Gonzales, 434 F.3d 523, 525 (7th Cir. 2005). Even if petitioners did

have a due process claim, the BIA considered and rejected their arguments in both the
5

second and third motions to reopen. On both occasions, the BIA found that petitioners

had failed to show any prejudice to the proceedings before the IJ or BIA, as required by

Lozada. The BIA’s denial of the petitioners’ motion to reopen is supported by the record

and cannot be construed as arbitrary, irrational, or contrary to law.

Accordingly, we will deny the petition for review.