On Appeal from an Order entered before The Board of Immigration Appeals. (No. A 70-891-107).
The opinion of the court was delivered by: Ambro, Circuit Judge
Argued September 15, 2004
Before: ALITO, AMBRO and FISHER, Circuit Judges
Syed Mahmood petitions for review of the decision by the Board of Immigration Appeals ("BIA") dismissing his appeal by agreeing with the Immigration Judge's ("IJ") denial of his motion to reopen as untimely filed. Though we conclude that Mahmood's allegations of ineffective assistance of counsel provide a basis for equitably tolling the relevant filing deadlines, we nonetheless deny the petition because he failed to exercise the requisite degree of diligence.
I. Facts and Procedural History
Mahmood, a native and citizen of Bangladesh, entered the United States in February 1993. In June 1997, the former Immigration and Naturalization Service ("INS")*fn1 concluded that Mahmood had presented invalid documents when he entered the United States and issued to him a Notice to Appear for possible removal. Mahmood, however, failed to appear for his hearing before an IJ in January 1998, and he was ordered removed in absentia under 8 U.S.C. § 1229a(b)(5)(A). He moved to reopen the proceedings. After determining that Mahmood had been severely ill and unable to attend the hearing, the IJ concluded that "exceptional circumstances" warranted granting the motion. See 8 U.S.C. § 1229a(b)(5)(C)(i) (providing that an in absentia removal order may be rescinded "if the alien demonstrates that the failure to appear was because of exceptional circumstances").
The IJ scheduled another hearing in March 1999, but again Mahmood did not appear, and again the IJ ordered his removal in absentia. In April 1999, he filed a second motion to reopen, asserting a medical procedure had prevented him from appearing for the rescheduled hearing. The IJ concluded that the procedure (removal of a perirectal abscess) was not sufficiently serious to constitute exceptional circumstances and denied the motion in May 1999. Included in the certified administrative record is a cover letter-addressed to Charles Grutman, Mahmood's counsel at that time, and dated June 1, 1999-purporting to attach the IJ's decision.
Well over a year later, in November 2000, Grutman received a "bag and baggage" letter ordering Mahmood to report for removal to Bangladesh. In response, Grutman wrote to the IJ and asserted that he had never been notified of the denial of the motion to reopen.*fn2
In December 2000, Mahmood's counsel appealed the May 1999 order to the BIA, and it dismissed the appeal as untimely in June 2001. Mahmood retained new counsel and filed his third motion to reopen in July 2002, alleging ineffective assistance of counsel and seeking an adjustment of status in light of an approved I-130 petition filed by Karen Mahmood (née Zimmerman), who had married Mahmood in April 2001. The IJ denied the motion in September 2002 on the ground that it had been filed over three years after the IJ issued the in absentia order (that was the subject of the second motion to reopen), and thus long after the applicable time limits for moving to reopen had passed. The BIA dismissed Mahmoods second appeal in August 2003, and he timely petitioned for our Courts review.
We review a final order of the BIA denying a motion to reopen for abuse of discretion. Cf. INS v. Doherty, 502 U.S. 314, 323 (1992). Review of the BIA's legal conclusions is de novo, with appropriate deference to the agency's interpretation of the underlying statute in accordance with administrative law principles. Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004) (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)). Findings of fact may not be disturbed if ...