Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-20-2008
Baidwan v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4748
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4748
PARAMJIT SINGH BAIDWAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
__________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A76-093-733)
Immigration Judge: Annie S. Garcy
__________________
Submitted under Third Circuit LAR 34.1 (a)
on January 18, 2008
Before: SCIRICA, Chief Judge, BARRY and ROTH, Circuit Judges
(Opinion filed : May 20, 2008)
OPINION
ROTH, Circuit Judge:
Paramjit Singh Baidwan seeks review of a final order of the Board of Immigration
Appeals (BIA) denying a motion to reopen his immigration proceedings as untimely and
number-barred. Baidwan contends that the BIA did not properly exercise its discretion when
it denied his motion to reopen because of the existence of changed country circumstances and
ineffective assistance of counsel. Baidwan also asserts that the Immigration Judge (IJ) and
BIA erroneously ordered him removed from the United States and erroneously denied his
applications for asylum, withholding of removal, and protection under the Convention
Against Torture (CAT). Finding no abuse of discretion, we will deny the petition for review.
I. BACKGROUND
Baidwan is a native and citizen of India; he is also a Sikh and alleged member of
Akali Dal Mann. Baidwan entered the United States on February 11, 1998. An I-94 Arrival-
Departure Form indicates his authorized stay expired on February 20, 1998. Baidwan filed
an application for asylum on November 24, 1998. Subsequently, the former Immigration and
Naturalization Service (INS) commenced removal proceedings against Baidwan, charging
that he was subject to removal as an alien who was inadmissible at the time of entry for
failing to possess or present a valid immigration visa, reentry permit, border crossing
identification, or other valid entry document.
Baidwan, represented by counsel, appeared before the IJ and admitted the allegations
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against him, conceding removability as charged.1 Following a merits hearing, the IJ denied
Baidwan’s applications for asylum, withholding of removal, and protection under CAT, and
ordered him removed to India. Baidwan filed a timely appeal with the BIA on November 8,
1999. On April 22, 2003, the BIA dismissed Baidwan’s appeal, agreeing with the IJ that
Baidwan failed to meet his burden of proof and persuasion regarding his applications for
asylum and withholding of removal because his evidence was vague, uncorroborated, and
not credible. The BIA also found Baidwan failed to provide credible evidence relating to his
torture claim. On June 16, 2003, Baidwan filed a timely motion to reopen his removal
proceedings. The BIA denied this motion on July 17, 2003, finding he did not meet the
heavy evidentiary burden required for reopening.
On July 28, 2003, Baidwan filed a petition for review and a motion to stay removal.
We denied the motion to stay removal on August 20, 2003. Baidwan failed to comply with
the briefing schedule and, on October 30, 2003, we terminated the proceedings due to
Baidwan’s failure to prosecute his claim.
On June 8, 2006, Baidwan filed a second motion to reopen removal proceedings with
the BIA alleging changed country conditions and ineffective assistance of counsel. He also
sought to apply for adjustment of status based on a pending application for labor
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Baidwan conceded to a charge that he was removable as an alien who was inadmissible
at the time of entry for failing to possess or present a valid entry document. Baidwan did not
present an I-94 form during these proceedings. In his brief, Baidwan admitted he had lost
the document. He received a replacement I-94 form on September 6, 2006.
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certification. The BIA denied the motion on October 27, 2006. The BIA found that
Baidwan’s motion to reopen was untimely and number-barred and that Baidwan failed to
show any exception applied to cure these defects. Even assuming the existence of changed
country circumstances, the BIA found Baidwan failed to show how the additional evidence
was material or would affect the outcome of the case because it was based on the same claim
as his asylum application, which was not credible. The BIA construed Baidwan’s adjustment
of status request as a request for sua sponte reopening to apply for labor certification and
denied the motion. Regarding Baidwan’s ineffective assistance of counsel claim, the BIA
found Baidwan failed to satisfy the requirements of Matter of Lozada, 19 I. & N. Dec. 637
(B.I.A. 1988). Baidwan filed a petition for review on November 13, 2006.
We have exclusive jurisdiction to review final orders of removal pursuant to INA
Section 242(a)(1). 8 U.S.C. § 1252(a)(1) (2005), as amended by The REAL ID Act of 2005,
§ 106, Pub. L. No. 109-13, Div. B, 119 Stat 231, 310-11. Baidwan’s petition for review was
timely filed only insofar as Baidwan seeks review of the BIA’s October 27, 2006, order.
Venue is proper because the proceedings before the IJ were concluded in Newark, New
Jersey.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Fadiga v.
Att’y Gen., 488 F.3d 142, 153-54 (3d Cir. 2007). However, we review questions of law, such
as whether the BIA applied the correct legal standard in considering the motion de novo. Id.
Our review of the BIA’s determination of an underlying procedural due process claim is also
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de novo. Id. A claim of ineffective assistance of counsel in immigration proceedings is
grounded in the Fifth Amendment right to due process. Id. Therefore, we will review
Baidwan’s ineffective assistance of counsel claim de novo. Id.
II. DISCUSSION
A. Motion to Reopen
In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
Congress provided a mechanism for reopening proceedings that applies to motions filed on
or after April 1, 1997. 8 U.S.C. § 1229a(c)(7). Generally, an alien may file one motion to
reopen within 90 days of the date of entry of the final administrative order of removal. 8
U.S.C. § 1229(a)(7)(A) & (C)(i). The BIA properly dismissed Baidwan’s second motion to
reopen filed more than three years after a final order of removal as untimely and number-
barred. The BIA did not abuse its discretion by finding Baidwan failed to show an exception
applied and Baidwan does not challenge this determination. Baidwan merely offers
conclusory statements that this Court should equitably toll the time and number bars without
citing legal authority. He has failed to show that the BIA’s decision was “arbitrary,
irrational, or contrary to law.” See Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).
B. Ineffective Assistance of Counsel
In Lozada, the BIA set forth three procedural requirements the petitioner must satisfy
in order for the BIA to consider motions to reopen based on a claim of ineffective assistance
of counsel. See Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1998). Lozada requires the alien
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to (1) support the claim with an affidavit attesting to the relevant facts; (2) inform former
counsel of the allegations and provide counsel with an opportunity to respond; and (3) state
whether a complaint has been filed with appropriate disciplinary authorities regarding the
allegedly deficient representation, and if not, why not. Id. In Lu v. Ashcroft, “[w]e generally
agree[d] that the BIA’s three-prong test is not an abuse of the Board’s wide-ranging
discretion.” 259 F.3d 127, 133 (3d Cir. 2001). In Lu, we recognized “[t]here are inherent
dangers, however, in applying a strict, formulaic interpretation of Lozada.” Id. For example,
failure to file a bar complaint is not fatal if the petitioner provides a reasonable explanation
for the decision. Id. Finally, in the event the petitioner satisfies Lozada’s procedural
requirements, he must show that he suffered prejudice as a result. Id. at 135, n.5.
The BIA correctly determined that Baidwan failed to satisfy Lozada’s requirements.
Regarding the first requirement, Baidwan asserts that his former counsel provided ineffective
assistance by conceding to an erroneous charge of removability, failing to discover
Baidwan’s entry was legal, and failing to discover that Baidwan was eligible to file for labor
certification and then for adjustment of status. Regarding counsel’s alleged failure to file
for labor certification, Baidwan failed to provide the BIA with any evidence that any counsel
was ever engaged or agreed to pursue an application for labor certification or an employment
based visa petition.2
2
See Lozada, 19 I. & N. at 639-40 (holding first requirement not satisfied where affidavit
asserted ineffective assistance of counsel for failure to file a brief, but failed to include a
statement that set forth in detail the agreement that was entered into with former counsel with
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Baidwan’s argument that former counsel conceded to an erroneous charge of
removability by failing to discover Baidwan entered the country legally rather than illegally
also fails to satisfy the first requirement. Baidwan’s replacement I-94 form does indicate
Baidwan entered the country legally, but his authorized stay expired February 20, 1998.
Removal proceedings against him were not initiated until March 1999, more than a year after
his authorized stay expired. Baidwan was subject to removal as an alien who, after
admission as a non-immigrant, had remained in the United States for a time longer than
permitted. Therefore, Baidwan has not made clear how conceding to removal was
unreasonable. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Moreover, Baidwan
failed to establish how concession to a charge that he was subject to removal for failing to
possess or present a valid entry document prejudiced the outcome of the proceeding as
compared to concession to a charge that he was subject to removal as a non-immigrant who
had remained in the country longer than permitted. See Strickland v. Washington, 466 U.S.
668, 687 (1984).
Additionally, Baidwan does not dispute that he failed to satisfy the last two Lozada
requirements. He offers no explanation for this failure. We decline to accept Baidwan’s
argument that we should not apply a strict, formulaic interpretation of Lozada where, as here,
Lozada’s procedural requirements have not been met and there is no explanation provided
respect to the actions to be taken on appeal and what counsel did or did not represent to alien
in this regard).
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for the failure. As a result, we will affirm the BIA’s denial of Baidwan’s motion to reopen
his immigration proceedings based on ineffective assistance of counsel.
III. CONCLUSION
For the foregoing reasons, we will deny the petition for review.
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