NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2667
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GUNVANT KUMAR BECHARBHA PATEL,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-078-121)
Immigration Judge: Honorable Charles M. Honeyman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 20, 2013
Before: SLOVITER, CHAGARES and GREENBERG, Circuit Judges
(Opinion filed: March 25, 2013 )
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OPINION
___________
PER CURIAM
1
Petitioner, Gunvant Kumar Becharbha Patel, seeks review of the Board of
Immigration Appeals’ (BIA or Board) order denying his second motion to reopen his
removal proceedings. For the reasons that follow, we will deny the petition for review.
I.
Patel is a native and citizen of India who entered the United States unlawfully in
1998. In 2009, the Department of Homeland Security (DHS) charged him with removal
under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present without being admitted or paroled.
Patel, represented by counsel, conceded removability as charged, and sought voluntary
departure in lieu of removal under 8 U.S.C. § 1229c(a). Following a hearing in October
2010, the Immigration Judge (IJ) granted Patel’s request for voluntary departure.
The following month, Patel obtained new counsel and moved the IJ to reopen his
removal proceedings. Patel claimed that his former counsel had rendered ineffective
assistance by failing to advise him that he could seek asylum and related relief based on
the religious persecution he had allegedly experienced in India. The IJ denied the motion
to reopen on the grounds that Patel had failed to: (1) establish an ineffective-assistance-
of-counsel claim insofar as he failed to comply with the requirements set forth in In re
Lozada, 19 I. & N. Dec. 637 (BIA 1988); and (2) demonstrate prima facie eligibility for
asylum, withholding of removal, or protection under the Convention Against Torture
(CAT). Upon review, the BIA affirmed the IJ’s decision and dismissed Patel’s appeal.
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Patel then filed a motion to reopen with the BIA, claiming that he had obtained
additional documentation concerning his ineffectiveness claim in compliance with the
requirements of Lozada. The BIA denied the motion on the ground that it was
numerically barred under 8 C.F.R. § 1003.2(c).1 This petition for review followed.
II.
We have jurisdiction to review the BIA’s denial of Patel’s motion to reopen
pursuant to 8 U.S.C. § 1252(a). We review the BIA’s decision denying a motion to
reopen for an abuse of discretion, and will not disturb the decision unless it is “arbitrary,
irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004)
(quotation marks and citation omitted).
An alien has the right to file a motion to reopen removal proceedings and must do
so within 90 days after the date on which the final administrative decision was rendered
in the proceeding sought to be reopened. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). An alien in removal proceedings is limited to only one motion to reopen,
whether before the Board or the IJ. 8 C.F.R. § 1003.2(c)(2). Although we have held that
the deadline for filing a motion to reopen may be equitably tolled by a showing of
ineffective assistance of counsel, see Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir.
1
The BIA also declined to exercise its authority to reopen the proceedings sua sponte.
Patel does not challenge this ruling in his petition for review. Therefore, it has been
waived. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005). In any event, we
lack jurisdiction to review it. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.
2003).
3
2005), we have not decided that the numerical limit on motions to reopen may be
similarly “tolled,” see Luntungan v. Att’y Gen., 449 F.3d 551, 557 (3d Cir. 2006). We
conclude, however, that even assuming that some equitable principle would, in the proper
circumstances, permit an alien to file more than one motion to reopen, Patel did not
demonstrate that he was entitled to any equitable relief here.
In his second motion to reopen, Patel again claimed that the attorney who
represented him at his initial removal hearing rendered ineffective assistance, and
provided new documentation demonstrating that he had complied with the Lozada
requirements in relation to that ineffective-assistance-of-counsel claim. He did not
recognize that his motion was number-barred, or even attempt to demonstrate that the
motion should be accepted as a matter of equity. Indeed, such showing would have to be
based on unfairness surrounding the first motion to reopen—not the underlying
proceedings—and Patel certainly did not allege that the attorney who filed his first
motion to reopen provided ineffective assistance or otherwise defrauded him. Under
these circumstances, the BIA properly denied the motion. See Luntungan, 449 F.3d at
557-58.
Because Patel has failed to show that the BIA abused its discretion in determining
that his second motion was number-barred, we need not reach his other arguments on
appeal.
III.
4
For these reasons, we will deny the petition for review.
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