Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (Board No. A96-266-204).
Before: RENDELL, SMITH, and BECKER*fn1, Circuit Judges.
Julian Bastian Luntungan, a native and citizen of Indonesia and the petitioner in this case, failed to attend two consecutive removal hearings, and an Immigration Judge ("IJ") ordered him removed in absentia. Luntungan then filed three consecutive motions to reopen, which the IJ denied, and Luntungan appealed the denial of the third motion to the Board of Immigration Appeals ("BIA"). Reviewing the denial of the third motion, the BIA agreed with the IJ that Luntungan was permitted to file only one motion to reopen. This conclusion, of course, required the denial of his third motion.
Addressing Luntungan's petition for review, we first conclude that under the plain language of both the Immigration and Nationality Act and a BIA regulation, an alien ordered removed in absentia may file only one motion to reopen. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.23(b)(4)(ii). We then consider Luntungan's contention that we should read an exception into the one motion rule because his attorney was ineffective in preparing the first motion to reopen. Other courts have referred to exceptions to the one motion rule as a form of equitable tolling.*fn2 We leave open the possibility that some equitable principle would, in the proper circumstances, permit an alien to file more than one motion to reopen, but whatever its bounds, equitable tolling will not aid Luntungan. Even assuming that the alleged ineffectiveness of Luntungan's first attorney deprived him of a fair chance to be heard on his first motion to reopen, the IJ denied Luntungan's second motion for reasons unrelated to the one motion rule, and Luntungan does not claim that the attorney who filed the second motion rendered ineffective assistance of counsel. Thus, even assuming that Luntungan's first motion to reopen did not provide a fair chance to be heard, any procedural unfairness was remedied when the IJ considered the second motion. We therefore deny Luntungan's petition for review.
Luntungan was admitted to the United States in June 1995, with permission to remain until December 15, 1995. In April of 2003, Luntungan applied for asylum. He asserted that his house had been burned down, and that he feared persecution in Indonesia because he is a practicing Christian and ethnically Chinese. The former Immigration and Naturalization Service then served Luntungan with a Notice to Appear, charging him with removability on the ground that he remained in the United States longer than his visa permitted. The Notice to Appear stated that Luntungan's removal hearing would occur in New York, New York on May 6, 2003, but the New York Immigration Court later granted Luntungan's motion for a change of venue to New Jersey.
Luntungan's attorney then received a Notice of Hearing from the Immigration Court in Newark, New Jersey. The Notice of Hearing stated that if Luntungan failed to appear on December 9, 2003, an order of removal could be entered against him. On September 2, 2003, the Newark Immigration Court sent Luntungan's attorney a second Notice of Hearing, which moved the date of the hearing forward to September 19, 2003. On September 22, 2003, the Newark Immigration Court sent another Notice of Hearing to Luntungan's attorney, changing the hearing date to October 28, 2003.
Luntungan failed to appear for the October 28, 2003 hearing, and the IJ rescheduled the hearing for November 4, 2003. Luntungan again failed to appear on November 4. Therefore, the IJ ordered Luntungan removed under § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A), which authorizes in absentia removal orders.*fn3
Luntungan responded by filing a series of motions to reopen. We emphasize that Luntungan asks us to review only the denial of his third motion.*fn4
Luntungan first moved to reopen proceedings on January 20, 2004. In an affidavit attached to the motion, Luntungan implied that his attorney had written him a letter informing him of the rescheduled hearing. However, he stated that he did not receive any such letter. Luntungan did not allege at this stage that his attorney was ineffective in failing to notify him of the rescheduled hearing; indeed, the same attorney continued to represent him. The IJ denied the motion, stating that Luntungan's attorney was ...