Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-5-2008
Ahmed v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4147
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Ahmed v. Atty Gen USA" (2008). 2008 Decisions. Paper 562.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/562
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4147
___________
SANA JAMIL AHMED,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
_________________________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A97-160-045 )
Immigration Judge: Honorable Daniel A. Meisner
__________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 27, 2008
Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Filed: September 5, 2008)
___________
OPINION OF THE COURT
___________
PER CURIAM
Petitioner, Sana Jamil Ahmed, petitions for review of an order of the Board
of Immigration Appeals (BIA) denying her motion to reopen removal proceedings in
order to adjust her status based on her subsequent marriage to a United States citizen. For
the following reason, we will deny the petition for review.
A native of Saudi Arabia and citizen of Pakistan, Ahmed entered the
United States in 2001 with her mother, both as non-immigrant visitors, and overstayed.
Thereafter, the Department of Homeland Security (DHS) charged them with removal and,
in 2003, served them each with Notices to Appear (NTA). Ahmed was eighteen years old
at the time that she was served with an NTA. On behalf of herself and her daughter,
Ahmed’s mother conceded their removability, but, through counsel, applied for asylum,
withholding of removal and relief under the Convention Against Torture (CAT), or, in the
alternative, for voluntary departure.
In 2005, the Immigration Judge (IJ) denied their applications for asylum,
withholding of removal, and CAT relief, but granted their request for voluntary departure.
They appealed the IJ’s decision, but, on July 10, 2006, the Bureau of Immigration
Appeals (BIA) summarily dismissed their appeal as conclusory and granted them
voluntary departure within sixty-days of its decision. They did not petition for review of
the BIA’s July 10 th decision.
Ahmed remained in the United States beyond the granted period of
voluntary departure. In August 2006, she married a United States citizen, and a several
months later, her husband filed a Petition for Alien Relative (I-130) for her; Ahmed also
filed an Application to Adjust Status (I-485) based on her I-130 petition. On July 26,
2007, over a year after the BIA summarily dismissed her appeal, she filed a motion to
2
reopen removal proceedings before the BIA in order to apply for adjustment of status
based on her marriage. On September 25, 2007, the BIA denied the motion to reopen as
untimely and rejected her equitable tolling claims. Through counsel, Ahmed filed the
instant petition for review.
Our jurisdiction extends only to the BIA’s September 25, 2007 decision
denying Ahmed’s motion to reopen. 8 U.S.C. § 1252(b)(1). We review the BIA’s denial
of a motion to reopen for abuse of discretion, INS v. Doherty, 502 U.S. 314 323 (1992),
and will not disturb the decision unless it was arbitrary, irrational or contrary to law. See
Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d. Cir. 2002). “We review the BIA’s legal
determinations de novo, subject to established principles of deference, Chevron v. Nat.
Res. Def. Council, 467 U.S. 837, 844 (1984), but defer to the BIA’s factual findings
unless any reasonable adjudicator would be compelled to conclude to the contrary.” See
Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004)(internal quotation marks omitted); 8
U.S.C. 1252(b)(4)(B).
Aside from certain exceptions, a motion to reopen must be filed within
ninety days of the BIA decision that the petitioner seeks to appeal. 8 U.S.C. §
1229a(c)(7)(C)(I). That deadline may be equitably tolled, such as by a showing of
ineffective assistance of counsel, but the petitioner must have demonstrated due diligence
in pursuing that claim. See Mahmood v. Gonzales, 427 F.3d 248, 252-53 (3d. Cir. 2005).
3
In this case, the BIA denied Ahmed’s motion to reopen because it was filed
over a year after its July 10, 2006 decision summarily dismissing her appeal and granting
her request for voluntary departure. Ahmed does not dispute the untimeliness of her
motion. Instead, Ahmed argues that she was not bound by the BIA’s order of voluntary
departure. She insists that her mother’s ultimately unsuccessful asylum application
should not be imputed onto her, because she was merely her mother’s dependent, had no
legal capacity to act on her own behalf, and was not legally informed of the consequences
of seeking voluntary departure.1 The BIA rejected that argument as a as a basis for
equitable tolling, pointing out that Ahmed was eighteen years old at the commencement
of the removal proceedings, and that she was twenty-one when the BIA rendered its last
decision denying their appeal.
We agree that Ahmed’s argument is meritless. Ahmed’s mother identified
her as a dependent and derivative beneficiary for the purposes of the asylum application,
and the IJ explicitly treated her as such during the proceedings. Moreover, as the
government points out, Ahmed was asked twice on the record whether she approved of
her mother’s attorney representing her, and in both instances she approved without
protest. As a derivative beneficiary of her mother’s application, Ahmed would have
received the same status if her mother had been awarded asylum. See 8 U.S.C.
1
Ahmed presented these arguments to the BIA in her motion to reopen, but the BIA’s
equitable tolling
4
§1158(b)(3)(A). Accordingly, the denial of her mother’s asylum application applied to
Ahmed as well.
We also find no reason to disturb the BIA’s determination that Ahmed’s
claim of ineffective assistance of counsel does not entitle her to equitable tolling. To the
extent that her ineffectiveness claim rests on the arguments that the IJ disregarded her due
process right to have counsel of her own choice and that her lawyer filed a grossly
inadequate appeal which the BIA dismissed as perfunctory, she should have pursued these
claims in a timely motion for reconsideration or motion to reopen the proceedings after
the BIA issued its July 10, 2006 decision.2 Instead, Ahmed waited over a year before
filing the instant, now untimely, motion to reopen. Therefore, because we agree that
Ahmed has failed to exercise due diligence in pursuing her claim of attorney
ineffectiveness, we conclude that the BIA did not abuse its discretion in denying equitable
tolling on the basis of her attorney’s ineffectiveness. See Mahmood, 427 F.3d at 252-53.
Finally, because Ahmed failed to depart within the sixty-day voluntary
departure period following the date of the BIA’s decision, and because she did not
exercise any of the devices then-available to her (such as timely motions to extend her
voluntary departure period or to reopen the proceedings), we agree with the BIA that
Ahmed is statutorily ineligible for adjustment of status based on her marriage for a period
2
We also note that she did not file a petition for review of the BIA’s July 10, 2006
decision.
5
of ten years. See 8 U.S.C. § 1229c(d).
Accordingly, we deny the petition for review.
6