Rafic Chedid v. Eric H. Holder, Jr., Attorney General

United States Court of Appeals
For the First Circuit
No. 08-1552
RAFIC CHEDID,
Petitioner,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
Saher Joseph Macarius, Audrey Youssef Botros, and Law Offices
of Saher J. Macarius, for petitioner.
Gregory G. Katsas, Assistant Attorney General, Greg D. Mack,
Senior Litigation Counsel, and Wendy Benner-León, Trial Attorney,
Office of Immigration Litigation, Civil Division, U.S. Department
of Justice, for respondent.
July 17, 2009
_____________________
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Eric H. Holder, Jr. has been substituted for former Attorney
General Michael B. Mukasey as the respondent.

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LIPEZ, Circuit Judge. Petitioner Rafic Chedid, a native
and citizen of Lebanon, seeks review of an April 3, 2008 denial by
the Board of Immigration Appeals (BIA) of his second motion to
reopen immigration proceedings to allow him to apply for adjustment
of status based on his marriage to a United States citizen. More
than two years earlier, the BIA had upheld the decision of an
immigration judge (IJ) denying Chedid's application for withholding
of removal and relief under the Convention Against Torture (CAT).
The BIA agreed with the IJ that Chedid failed to establish that he
suffered past persecution on account of a protected ground or that
it was more likely than not that his life would be threatened or he
would be tortured by the Lebanese government upon returning to
Lebanon.
Several months later, Chedid filed his first motion to
reopen the proceedings to allow him to apply for adjustment of
status based on an I-130 visa petition that his wife had since
filed with the United States Citizenship and Immigration Services
(USCIS). The Board denied this motion both because it was untimely
and also based on its finding that Chedid had failed to make out a
prima facie case of the bona fides of his marriage. One year
later, Chedid filed a second motion to reopen, claiming that the
time and number limitations on filing his motion should be
equitably tolled and the proceedings reopened due to ineffective

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The INS's enforcement functions have since been transferred 1
to the Department of Homeland Security (DHS), pursuant to section
441 of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116
Stat. 2135 (Nov. 25, 2002).
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assistance of his prior counsel. It is the Board's denial of this
second motion to reopen that we now review. We deny the petition.
I.
A. Removal Proceedings and First Motion to Reopen
Because the merits of Chedid's withholding of removal and
CAT claims are not before us, we provide only a brief factual
summary of his claims. Chedid, a Lebanese citizen, entered the
United States on February 9, 2001, as a nonimmigrant visitor with
authorization to remain in the United States until May 8, 2001.
The former Immigration and Naturalization Service (INS) issued a 1
Notice to Appear (NTA) on January 6, 2003, charging petitioner with
being subject to removal for overstaying his visa. On May 12,
2003, Chedid appeared with counsel before the IJ and admitted the
factual allegations in the NTA and conceded that he was removable
as charged. However, he also sought withholding of removal and
protection pursuant to the regulations implementing the CAT based
on his fear of persecution or torture because of his political
opinion and religion. Chedid is a Maronite Christian. After a
hearing on September 15, 2004, at which Chedid testified, the IJ

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Because Chedid did not submit an application for asylum 2
within one year after the date of his arrival in the United States,
he was ineligible for such relief. See 8 U.S.C. § 1158(a)(2)(B).
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issued an oral decision denying his application for withholding of
removal and CAT protection.2
The IJ found that Chedid had failed to carry his burden
of establishing that he had been a victim of past persecution in
Lebanon on account of one of the statutory grounds, or that it was
more likely than not that he would be persecuted or tortured upon
his return to that country. However, the IJ granted Chedid’s
request for voluntary departure and entered an alternate order of
removal in case Chedid failed to comply with the grant of voluntary
departure by the deadline of November 15, 2004.
Chedid, through counsel, timely appealed the IJ’s
decision to the BIA. On February 21, 2006, the Board affirmed the
IJ’s decision and extended Chedid’s voluntary departure deadline to
sixty days from the date of its order, or April 22, 2006.
On May 19, 2006, Chedid filed a motion to reopen and
remand the proceedings to the IJ. His motion, based on his January
12, 2006 marriage to a United States Citizen, sought a remand to
allow him to apply for adjustment of status based on an I-130
immediate relative visa petition that his wife had filed on his
behalf on February 23, 2006. The board denied the motion to reopen
on June 15, 2006.

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Subject to certain exceptions, a petitioner may file only 3
one motion to reopen, and he must do so within ninety days of the
date of entry of the Board’s final decision. See 8 U.S.C. §
1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2).
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Because Chedid’s counsel, Antonio Sambrano Sorraco
(Sambrano), did not file an EOIR-27 form entering his appearance in
connection with Chedid’s motion to reopen, the Board considered
Chedid as proceeding pro se on his motion to reopen. The Board
found that Chedid did not qualify for reopening because the motion
was filed after the April 22 expiration of the sixty-day voluntary
departure period. The BIA also concluded that Chedid had failed to
submit sufficient evidence to make out a prima facie case of the
bona fides of his marriage, and therefore did not meet his burden
for reopening in any event. Chedid did not appeal the Board’s June
15, 2006 order to this Court.
B. Second Motion to Reopen
Over a year later, through new counsel, Chedid filed
another motion to reopen with the BIA. He argued that the time and
number limitations on motions to reopen prescribed in 8 C.F.R. §§
1003.2(c)(2) & (c)(3) should be equitably tolled and his 3
proceedings reopened due to the ineffective assistance of his prior
counsel. In support of this claim, he faulted Sambrano for filing
an "ill-composed" I-130 petition and for an untimely filing of
Chedid's first motion to reopen. In the affidavit attached to his
motion to reopen, Chedid claimed that, a week after the Board

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Although Attorney General Michael Mukasey had issued a 4
ruling modifying the Lozada requirements prior to leaving office,
see Matter of Compean, 24 I. & N. Dec. 710 (AG 2009), that decision
was subsequently revoked by Attorney General Holder. 25 I. & N.
Dec. 1 (AG 2009). Accordingly, the Lozada standard still governs
the petitioner's claim. Id.
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denied his appeal, he had spoken with Sambrano, who had assured him
that because he was now married to a U.S. citizen, he would be
granted adjustment of status on the basis of his I-130 petition and
he "had nothing to worry about with regard to the asylum case."
Then, after receiving the Board’s decision on his first motion to
reopen, Sambrano told him that he had to leave the country.
Chedid also argued in his second motion to reopen that he
had satisfied the requirements for making out a claim of
ineffective assistance of counsel as set forth in In re Lozada, 19
I. & N. Dec. 637, 639 (BIA 1988). Lozada requires an alien 4
seeking to reopen removal proceedings based on a claim of
ineffective assistance of counsel to include with the motion 1) an
affidavit explaining the petitioner’s agreement with counsel
regarding legal representation; 2) evidence that counsel has been
informed of the allegations of ineffective assistance and has had
an opportunity to respond; and 3) if it is asserted that counsel's
handling of the case involved a violation of ethical or legal
responsibilities, a complaint against the attorney filed with
disciplinary authorities or, in the alternative, an explanation for
why such a complaint has not been filed. Id. The bar complaint

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submitted with Chedid’s motion to reopen had been sent with a cover
letter stating that Chedid was "not seeking sanctions or
disciplinary action" against his prior counsel, but rather that he
was filing the complaint "in order to reopen his case before the
Immigration Court" and comply with the Lozada requirements. A
similar cover letter was sent to Sambrano along with a copy of the
complaint.
Finally, in the motion to reopen, Chedid claimed that he
had "new evidence" as to the bona fides of the new marriage that
would establish his prima facie eligibility for adjustment of
status. The new evidence was a set of materials submitted by
Chedid’s new counsel on November 13, 2006, as a supplement to his
wife’s I-130 petition, and included evidence of a joint bank
account that Chedid maintained with his citizen spouse, letters
from friends describing the spousal relationship, and a copy of the
couple’s September, 2006 electric bill.
C. The BIA's Decision
On April 3, 2008, the BIA denied Chedid’s second motion
to reopen on the grounds that it was untimely and exceeded the
numerical limitations for such motions set forth in 8 C.F.R. §
1003.2(c)(2). Although the Board acknowledged that equitable
tolling of the time limitations may be available in some cases
alleging ineffective assistance of counsel, it found that Chedid
had not acted with the "due diligence" required to invoke this

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doctrine. Specifically, the Board noted that approximately a year
had transpired between the Board’s denial of Chedid’s first motion
to reopen and the filing of his second. The Board rejected as an
insufficient excuse for the delay Chedid's assertion that he had
"searched for several months for an attorney willing to take this
case and file a new motion to reopen." Furthermore, the Board held
that Chedid had not substantially complied with the Lozada
requirements, finding the bar complaint and the notice to Sambrano
"troubling and not substantial, much less full, Lozada compliance."
The Board explained:
On the one hand, the respondent would have us
believe that Mr. Sambrano’s representation so
damaged his case as to render him ineligible
for an immigration benefit, adjustment of
status, that he otherwise would warrant. On
the other hand, the respondent, though current
counsel, made it quite clear to both Mr.
Sambrano and his state bar’s disciplinary
board of his desire that "no sanctions or
disciplinary action be taken against" Mr.
Sambrano, and that the complaint was being
filed merely "to fulfill" Lozada requirements.
As a result, the Board found the allegations of harm to "ring
hollow" and noted that "pro forma" compliance with the Lozada
requirements was insufficient to make out a case for ineffective
assistance of counsel.
II.
"We review the Board's denial of the motion to reopen for
abuse of discretion, setting aside a decision only where it rests
on an error of law or reflects arbitrary or capricious

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decisionmaking." Oliveira v. Holder, 568 F.3d 275, slip op. at 3
(1st Cir. 2009) (citation omitted). Generally, a petitioner is
entitled to file only one motion to reopen, which must be filed
within ninety days of the date of entry of the Board’s final
decision. 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2).
However, there are certain limited exceptions to the time and
numerical limitations on motions to reopen if, inter alia, the
motion (1) seeks rescission of an in absentia order of removal; (2)
seeks to apply for asylum or withholding of removal based on
changed country conditions; (3) is joined and agreed upon by all
parties; or (4) is filed by DHS. 8 C.F.R. § 1003.2(c)(3).
Chedid's case does not fall within any of 8 C.F.R. § 1003.2(c)(3)'s
explicit regulatory exceptions to the time and numerical
limitations on such motions. However, some courts have also
recognized the availability of equitable tolling claims to surmount
the time and numerical limitations on motions to reopen. See,
e.g., Iavorksi v. INS, 232 F.3d 124, 129 (2d Cir. 2000) (time and
numerical limitations); Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir.
1999) (time limitations).
In a recent decision, we once again reserved the question
of whether "the statutory provision limiting motions to reopen is
subject to equitable tolling." Da Silva Neves v. Holder, 568 F.3d
41, 42 (1st Cir. 2009); see also Beltre-Veloz v. Mukasey, 533 F.3d
7, 11 (1st Cir. 2008) (reserving the question); Guerrero-Santana v.

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Gonzalez, 499 F.3d 90, 93 (1st Cir. 2007) (same). We have also
said that, even if equitable tolling were available to avoid the
limitations on motions to reopen, the doctrine should be "sparingly
invoked," Jobe v. INS, 238 F.3d 96, 100 (1st Cir. 2001) (en banc)
(quotation marks omitted), and is "unavailable to a party who has
failed to exercise due diligence, as the BIA found here." Da Silva
Neves, 568 F.3d at 42 (citing Boakai v. Gonzales, 447 F.3d 1, 3
(1st Cir. 2006)). Thus, even assuming equitable tolling were
available, we could only reach the merits of Chedid's ineffective
assistance of counsel claim if the Board abused its discretion in
finding that he had not exercised the "due diligence" required by
our case law. It did not.
The Board's decision notes that "[n]early a year
transpired from the time of the Board's denial of the first motion
and the final motion." In fact, Chedid's second motion to reopen
was filed on July 13, 2007, more than a year after his first motion
to reopen was denied on June 15, 2006. As the Board pointed out,
the only excuse given for this delay was the claim in Chedid's
motion that he "searched for several months for an attorney willing
to take his case and file a new motion to reopen," a vague
explanation that the Board supportably concluded was insufficient
to establish the requisite diligence. See Boakai, 447 F.3d at 3
(finding insufficient evidence of due diligence where petitioner
acknowledged receipt of Board's earlier decision in March 2002,

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current counsel was appointed in October 2002, and motion to reopen
was not filed until April 2003, a year after the Board's final
order was rendered).
This determination was not arbitrary or capricious.
Chedid's affidavit provides no information whatsoever regarding the
actions he took during the one-year period immediately following
the Board's June 15, 2006 order, and neither his affidavit nor the
accompanying motion provided any detail regarding his efforts to
obtain new counsel. See Jobe, 238 F.3d at 101 n.8 (noting that
alien "bears the burden of making a prima facie showing of
entitlement to equitable tolling, and therefore of filling in any
gaps in the record regarding whether his is a case warranting
equitable relief"). Chedid's claims of ineffective assistance of
counsel with respect to his first motion to reopen "cannot justify
his failure to file the second motion to reopen within the
prescribed period" or, failing that, to explain the "conspicuous
. . . gap [that] exists between the denial of the petitioner's
first motion to reopen and the filing of his second motion to
reopen." Guerrero-Santana, 499 F.3d at 93.
Given Chedid's failure to demonstrate due diligence,
there is no reason for us to consider whether to invoke equitable
tolling based on Chedid's claim of ineffective assistance of
counsel, or the merits of that ineffective assistance claim. See,
e.g., id. at 93 ("The petitioner has failed to explain how his

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previous counsels' shortcomings caused this failure to comply with
the temporal deadline. The merits of his ineffective assistance of
counsel claim are, therefore, immaterial." (footnote omitted)).
Therefore, we need not review the Board's determination that Chedid
failed to substantially comply with the Lozada requirements. His
dilatory pursuit of the second motion to reopen defeats his claim
for relief.
Petition denied.

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