2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-19-2010

Fatai Oladejo v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3043

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Recommended Citation

"Fatai Oladejo v. Atty Gen USA" (2010). 2010 Decisions. Paper 1690.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-3043

___________

FATAI OLADEJO, 

a/k/a Faith Oladejo,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order 

of the Board of Immigration Appeals

 Agency No. A70 893 108

Immigration Judge: Alberto J. Riefkohl

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

on March 19, 2010

___________

Before: FUENTES, WEIS and GARTH, Circuit Judges

________

OPINION OF THE COURT

(Filed March 19, 2010)

PER CURIAM

Faith Oladejo petitions for review of an order of the Board of Immigration Appeals

(BIA), which denied his third motion to reopen his removal proceedings. We will grant 
 We note that Oladejo complied with the procedural requirements of Matter of 1

Lozada, 19 I. & N. Dec. 637 (BIA 1988), in establishing his claim that counsel was

ineffective.

2

the petition for review. 

Oladejo, a native and citizen of Nigeria, entered the United States in 1989 without

permission. About four years later, he filed an asylum claim, based on a fear of

persecution because of his conversion from Islam to Christianity. On February 21, 2001,

an Immigration Judge (IJ) found him removable as charged and denied relief, but granted

voluntary departure. The Board of Immigration Appeals (BIA) dismissed his appeal on

November 28, 2003.

Oladejo filed a motion to reopen in March 2005, claiming neither he nor counsel

had received the BIA’s 2003 decision. On May 10, 2005, the BIA denied the motion as

untimely, discounting the allegation that the decision had not been received. Oladejo,

proceeding pro se, filed a second motion to reopen in February 2007, alleging that the

time period for filing a motion to reopen should be equitably tolled because of the

ineffectiveness of counsel. The BIA denied the second motion on June 25, 2007, noting 1

that equitable tolling was unavailable because Oladejo had failed to exercise due

diligence, since he had done nothing for about two years after learning that his first

motion to reopen had been denied. Oladejo filed a motion for reconsideration of that

decision, which the BIA denied on November 29, 2007. Proceeding with new counsel,

Oladejo then filed a third motion to reopen on February 1, 2008. The BIA denied the
 The BIA denied a motion for reconsideration of the March decision on May 2, 2008. 

2

That order is not at issue here.

 The church’s petition was approved on January 20, 2004. 

3

3

third motion to reopen on March 11, 2008, noting that Oladejo had given more specific

facts regarding the ineffectiveness of prior counsel, but that he had failed to attribute his

delay to that ineffectiveness.2

On March 21, 2008, Oladejo filed a petition for review and motion for stay of

removal in the United States Court of Appeals for the Fifth Circuit. That Court

transferred the case to the United States Court of Appeals for the Second Circuit, which

eventually transferred the case here.

The decision to deny a motion to reopen is within the Board’s discretion. See 8

C.F.R. § 1003.2(a); Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001). The deadline for

filing a motion to reopen may be equitably tolled by an ineffective assistance of counsel

claim. See Borges v. Gonzales, 402 F. 3d 398, 407 (3d Cir. 2005). Oladejo relied on his

first attorney’s advice to continue pursuing adjustment of status through his wife, who

was a permanent resident. Oladejo’s church also filed a petition for Special ImmigrantReligious Worker on his behalf. Although Oladejo’s attorney eventually informed him 3

of the BIA’s denial of his appeal in 2005, and attempted to reopen the proceedings, the

attorney did not explain to Oladejo the consequences of that denial once the BIA denied

the motion to reopen. Oladejo continued to diligently pursue his attempts to adjust his

status, unaware that the denial of his motion to reopen would preclude adjustment. 
 In his emergency motion to stay removal, which we granted on Feb. 19, 2010, 4

Oladejo stated for the first time that his wife had since become an American citizen, and

had filed an I-130 Petition on his behalf.

Oladejo only became aware of the consequences when he received a letter from the

agency informing him that his application for permanent residence based on his wife’s

petition was denied because of the removal order against him, at which time he again

asked the Board to reopen. See Ghahremani v. Gonzales, 498 F.3d 993, 999 (9 Cir.

4 th

2007) (limitations period tolled until petitioner definitively learns of counsel’s

unreasonable performance).

We hold that the Board erred in finding that Oladejo “fail[ed] to attribute the delay

in pursuing reopening to ineffective assistance.” A.R. 2. Indeed, it was because his

attorney failed to explain the process to him that he continued to pursue adjustment of

status in vain, rather than moving again to reopen. We will therefore grant the petition for

review and remand to the BIA for further proceedings. The Clerk is directed to issue the

mandate forthwith.

4