Suleman Merchant v. ERIC H. HOLDER, JR., Attorney General of the United States

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 29, 2010
Decided April 5, 2013
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10‐1950
SULEMAN MERCHANT,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals.
A093‐469‐217
ORDER
Suleman Merchant, a citizen of Pakistan, maintains that the Board of Immigration Appeals
should have granted his third motion to reopen his case for several reasons. We conclude that
the BIA did not abuse its discretion when it denied his motion. Although he maintains that the
deadline for his late motion to reopen should be equitably tolled in light of the alleged
ineffectiveness of his first attorney, the BIA reasonably found that Merchant did not act with
due diligence because he did not present this claim for nearly a year and a half after learning
of it. Next, the presentation of false documentation to the BIA did not prejudice Merchant
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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because the BIA denied his request for entirely unrelated reasons. Finally, the BIA did not
abuse its discretion when it determined that Merchant had not provided evidence of changed
circumstances in Pakistan that were material to his claim for asylum, withholding of removal,
or relief under the Convention Against Torture. We deny the petition for review.
I. BACKGROUND
Suleman Merchant arrived in the United States from his native Pakistan on October 9, 1990.
He overstayed his six‐month visa and has remained in the United States ever since. In 2000, he
married Sadaf Siddiqui, and they have two United States citizen children. Merchant is a Shia
Ismaili Muslim, and his wife is a Sunni Muslim.
Merchant and his wife moved to South Carolina after their marriage. On April 30, 2001,
New Generations, a clothing store in South Carolina, filed a labor certification application on
Merchant’s behalf for his work as a tailor. Merchant and his family relocated to Chicago late
the next year. In 2003, the United States Department of Homeland Security (“DHS”) required
males over the age of sixteen from certain countries, including Pakistan, to appear and register
through the National Security Entry‐Exit Registration System.
Merchant reported for the special registry in April 2003. DHS served him with a Notice to
Appear and started him in removal proceedings for overstaying his visa. Attorney Guy Croteau
appeared with Merchant before an immigration judge on August 27, 2003. Through Croteau,
Merchant conceded his removability. Croteau also informed the judge of Merchant’s pending
labor certification filed in 2001 by New Generations. On March 24, 2004, Merchant filed an
application for cancellation of removal based on hardship to his United States citizen son. (His
daughter had not yet been born.) A few months later, New Generations informed Merchant that
it was withdrawing its labor certification application filed on his behalf. Merchant informed
Croteau, who advised him that his only remaining option for staying in the United States was
to apply for cancellation of removal.
Merchant asserts that before his final hearing on April 26, 2006, Croteau told him the
immigration judge was unlikely to accept his application for cancellation of removal and that
his best option was to request voluntary departure. Through Croteau, Merchant did just that,
and at the hearing he withdrew his request for cancellation of removal. Instead, he requested
voluntary departure. The immigration judge granted Merchant’s request for voluntary
departure and set August 24, 2006 as the departure deadline. Croteau filed a motion to reopen
with the immigration judge, requesting adjudication of Merchant’s application for cancellation
of removal based on hardship to his United States citizen son. The immigration judge denied
the motion, and the BIA affirmed that ruling. Merchant did not leave the United States by his
voluntary departure deadline.

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No. 10‐1950 Page 3
On October 11, 2008, Merchant was arrested for speeding and placed in jail in light of the
warrant for his removal. While Merchant was in custody (he was released on July 6, 2009), his
wife met with another attorney, who advised her to file a complaint against attorney Croteau
with the Illinois Attorney Registration and Disciplinary Committee for giving him inadequate
legal assistance. The attorney also suggested that Merchant apply for asylum. Merchant’s wife
consulted with another attorney as well, who also advised applying for asylum.
In February 2009, Merchant’s wife went to the Immigration Law Center, where she spoke
with a consultant who was not an attorney but who assisted attorney Raymond Sanders. At a
subsequent meeting with the consultant, Merchant’s wife says she gave the consultant several
fraudulent documents she had obtained from Merchant’s nephew that falsely stated Merchant
had been kidnaped at gunpoint and beaten in Pakistan in 1989 because he was Muslim. On
March 26, 2009, Sanders filed a motion to reopen with the BIA on Merchant’s behalf. The
motion requested reopening to file for asylum, withholding of removal, and protection under
the United Nations Convention Against Torture (“CAT”) on the basis of past persecution (the
kidnaping and beating). The Board denied the motion because it was untimely and Merchant
had not shown changed circumstances in Pakistan. The BIA’s decision did not mention
Merchant’s past persecution claim.
Merchant says that he later learned about a federal investigation into the consultant. With
new counsel, Merchant filed a third motion to reopen with the Board asserting ineffective
assistance of counsel by attorneys Croteau and Sanders, as well as changed country conditions
in Pakistan. The Board denied this motion to reopen as well. Merchant then filed a petition for
review with this court.
II. ANALYSIS
Merchant argues that the Board abused its discretion when it denied his third motion to
reopen. He maintains that two of his previous attorneys rendered him ineffective assistance of
counsel in his removal proceedings. He also seeks reopening to apply for asylum, withholding
of removal, and CAT protection on the basis of changed circumstances in Pakistan.
A. Claim of Ineffective Assistance for Failure to File Application for Cancellation of
Removal
Merchant argues that attorney Croteau provided ineffective assistance by withdrawing the
cancellation of removal request and by failing to prepare and file his cancellation application,
and that his motion to reopen should have been granted on this basis. Because there is no
constitutional or statutory right to effective assistance of counsel in immigration proceedings,
a motion to reopen based on ineffective assistance is only a request for a favorable exercise of
the agency’s discretion. Jezierski v. Mukasey, 543 F.3d 886, 888 (7th Cir. 2008).

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As an initial matter, we have no jurisdiction to review an order denying cancellation of
removal, except if constitutional claims or questions of law are raised. 8 U.S.C. § 1252(a)(2)(D);
Cruz‐Mayaho v. Holder, 698 F.3d 574, 576‐66 (7th Cir. 2012). Because we generally lack
jurisdiction to review orders denying cancellation of removal, we also lack jurisdiction to
review a motion to reopen such an order, so long as “the agency’s rationale for denying the
procedural request also establishes the petitioner’s inability to prevail on the merits of his
underlying claim.” Calma v. Holder, 663 F.3d 868, 867 (7th Cir. 2011). Review is possible, for
example, when coupled with a request for relief such as asylum that is reviewable. Id. To the
extent Merchant is asserting that his claim of Croteau’s ineffective assistance impacts only the
cancellation of removal request, we lack jurisdiction to review it because Merchant does not
raise a constitutional or legal question. See id. In any event, to the extent we have jurisdiction,
our review is for abuse of discretion, id., and Merchant is not entitled to relief on this basis.
The BIA has established threshold requirements for bringing an ineffective assistance of
counsel claim. The petitioner must submit an affidavit establishing that he had an agreement
with counsel to represent him, as well as the terms of representation; the petitioner must
present evidence that he informed counsel of the allegations against him and gave an
opportunity to respond; and there must be a statement indicating whether a complaint has been
filed against appropriate disciplinary authorities and if not, why not. Matter of Lozada, 19 I. &
N. Dec. 637, 639 (BIA 1988); see Marinov v. Holder, 687 F.3d 365, 368 (7th Cir. 2012). As
Merchant emphasizes, he complied with the Lozada requirements. But whether Croteau
committed ineffective assistance of counsel is not the issue, because the BIA did not deny
Merchant’s request to reopen on the basis that Croteau provided adequate counsel or that
Merchant failed to meet the Lozada requirements. So this case is unlike Sanchez v. Keisler, 505
F.3d 641 (7th Cir. 2007), to which Merchant points, because there the BIA reached the merits of
the petitioner’s claim of ineffective assistance of counsel. Here, however, the BIA denied the
request to reopen based on Croteau’s alleged ineffective representation because it concluded
that Merchant did not act with due diligence in presenting this claim.
A motion to reopen must be filed within ninety days of the final order of removal. 8 U.S.C.
§ 1229a(c)(7)(C)(i). Merchant argues that his attorney’s ineffective assistance should toll this
deadline. But to benefit from equitable tolling, a petitioner must show that he exercised due
diligence and that he could not have reasonably been expected to file his motion earlier. El‐
Gazawy v. Holder, 690 F.3d 852, 859 (7th Cir. 2012); Johnson v. Gonzales, 478 F.3d 795, 799 (7th Cir.
2007). The BIA denied Merchant’s first motion to reopen his case on November 26, 2006. Nearly
two years later, when immigration authorities detained Merchant in October 2008, his wife
consulted a new attorney on his behalf, and that attorney advised then that Merchant should
file a complaint with the Illinois Attorney Registration and Disciplinary Commission because
attorney Croteau had not handled Merchant’s case properly. Although Merchant had
knowledge of Croteau’s deficient performance in October 2008, Merchant did not move to
reopen his case until March 2010, almost a year and a half later. In light of this delay, the Board

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No. 10‐1950 Page 5
did not abuse its discretion when it determined that Merchant failed to act with due diligence
in discovering and presenting his motion to reopen based on Croteau’s representation. See El‐
Gazawy, 690 F.3d at 859‐60.
B. No Prejudice from False Claim in Second Motion to Reopen
Merchant also contends that the BIA should have allowed him to reopen his case on the
basis of ineffective assistance by attorney Sanders in filing his second motion to reopen. His
motion to reopen also sought relief in the form of asylum, withholding of removal, or
protection under CAT. Merchant asserts that Sanders presented a false claim of past
persecution in the motion to reopen that Sanders filed with the BIA on March 26, 2009
(Merchant’s second motion to reopen) and that its inclusion prejudiced him. That motion
falsely stated that in 1989, Merchant was kidnaped and beaten in Pakistan at gunpoint by a
group of Sunni Wahbi Muslims because Merchant was Ismaili Muslim. Merchant’s wife
provided the documents giving rise to the claim, and she admitted that she thought they were
fake documents.
As the BIA recognized, the allegation that an attorney knowingly asserted a false claim in
a motion to reopen is very troubling if it is true. Merchant filed a complaint with the Illinois
Attorney Registration and Disciplinary Commission, and that agency is well‐equipped to
handle any discipline. (As Merchant notes in a filing, it has disciplined and suspended attorney
Croteau, for conduct unrelated to this case.) Sanders’s filing does not warrant reopening here,
however, because Merchant has not demonstrated any prejudice from the false claim’s filing.
The BIA denied his second motion to reopen on the basis of untimeliness and a failure to
demonstrate changed circumstances in Pakistan that materially affected his eligibility for relief.
The BIA did not mention the past persecution claim, kidnaping or beating in its order. The false
documents therefore were not material to the decision and did not prejudice him. See Kadia v.
Gonzales, 501 F.3d 817, 821 (7th Cir. 2007) (“the doctrine of harmless error is applicable to
judicial review of immigration decisions”).
C. No Changed Circumstances Materially Affecting Merchant’s Entitlement to Relief
Merchant also argues that changed circumstances in Pakistan since his last hearing warrant
reopening of his case. As we indicated, in general, a motion to reopen must be filed within
ninety days of the entry of a final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i). The ninety‐day
deadline does not apply to a motion to reopen for the purpose of applying for asylum,
withholding of removal, or Convention Against Torture relief where the motion is based on
evidence of “changed country conditions arising in the country of nationality or in the country
to which removal has been ordered, if such evidence is material and was not available and
could not have been discovered or presented at the previous hearing.” 8 U.S.C. §
1229a(c)(7)(C)(ii). To succeed, Merchant needed to point to evidence materially relevant to his
asylum application that was unavailable or undiscoverable at the time of his hearing in 2006.

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See Moosa v. Holder, 644 F.3d 380, 383 (7th Cir. 2011). And to be eligible for asylum, he would
need to establish that he was a “refugee,” meaning that he had a well‐founded fear of future
persecution attributable to his “race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1158(b)(1)(B); Moosa, 644 F.3d at 383.
Merchant maintains that he fears persecution based on his religion or the fact that he is
Ismaili Muslim and is married to a Sunni Muslim. The BIA recognized disturbing acts of
sectarian violence occurring in Pakistan, including against Shi’a Muslims, though it noted that
fear based on general strife was not sufficient. Cf. Moosa, 644 F.3d at 383 (finding that evidence
of broad social strike in Pakistan, including rise of Taliban and adoption of Shaira law,
occurring far from her hometown too speculative to warrant relief). With respect to his fear of
persecution on account of his religion, Merchant quotes the United States Department of State’s
2009 International Religious Freedom statement that Ismaili Muslims, a minority sect of Muslim
Shias, “were the objects of resentment of Sunni Muslims due to their comparative economic
well‐being. Ismailis reported they frequently faced societal pressure to adopt conservative
Islamic practices or risk being socially ostracized.” But as the BIA correctly stated, being
subjected to discrimination and to being socially ostracized does not rise to the level of
persecution. See Stanojkova v. Holder, 645 F.3d 943, 947‐49 (7th Cir. 2011)
Regarding his fear of persecution on the basis of his marriage to a Sunni Muslim, the BIA
stated he had not pointed to any specific evidence to substantiate his claim of a material change
in treatment that would rise to the level of a well‐founded fear of future persecution. For
example, a Canadian report to which he points, even if it helped him, discusses “interreligious”
marriages that predate his April 2006 hearing. He also points out that his marriage may not be
recognized in Pakistan and that he and his wife were discriminated against by their own
families, but such treatment does not rise to the level of persecution. See id. Merchant also
asserts that he will face persecution in Pakistan as a member of the asserted social group of
“people who want to raise their children as Sunnis and Shias” and “Pakistanis with U.S. citizen
children.” The Board concluded that Merchant had not shown these groups constituted social
groups for purposes of the immigration laws, and that in any event he did not show he
reasonably faces persecution because of his membership in such groups. The Board did not
abuse its discretion in the latter determination either. Cf. Moosa, 644 F.3d at 387 (denying
petition for review of woman who asserted serious risk of persecution in Pakistan as a single
Westernized woman).
Merchant also claims it is more likely than not that he will be tortured in Pakistan because
the Pakistani government acquiesces in sectarian violence against Shia groups. The BIA
reasonably concluded that the evidence submitted does not demonstrate that Merchant meets
the high threshold of showing he faces a likelihood of torture. See Selimi v. Ashcroft, 360 F.3d
736, 741 (7th Cir. 2004). For example, the June 2008 Amnesty International report Merchant

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submitted in support of his claim discusses allegations of torture of suspected terrorists by the
Pakistani security services, but Merchant is not a terrorist.
Finally, Merchant also argues that the Board should have sua sponte reopened his case to
request cancellation of removal pursuant to 8 C.F.R. § 1003.2(a). We have stated before that we
lack jurisdiction to review the BIA’s failure to reopen a case sua sponte, Johnson v. Gonzales, 478
F.3d 795, 799 (7th Cir. 2007), and we decline to revisit that conclusion in this case. For the
foregoing reasons, the BIA did not abuse its discretion when it denied Merchant’s third motion
to reopen.
III. CONCLUSION
The petition for review is DENIED.

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