Devon Harding v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2983
DEVON HARDING,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of a Final Order of the
Board of Immigration Appeals
BIA No. A70-841-310
(U.S. Immigration Judge: Honorable Daniel A. Meisner)
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 10, 2007
Before: SCIRICA, Chief Judge, RENDELL and FUENTES, Circuit Judges.
(Filed October 26, 2007)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Devon Harding petitions for review of the Board of Immigration Appeals’ final
order of removal dated May 10, 2006. He asks us to vacate and reverse the Board’s
order. We will deny Harding’s petition and affirm the Board’s order.

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I.
Harding, a native and citizen of Jamaica, entered the United States in June 1991.
In March 1995, following his marriage to a U.S. citizen, Harding’s status was
conditionally adjusted from non-immigrant visitor for pleasure to permanent resident.
Harding was divorced in 2001 and his permanent resident status was subsequently
terminated in June 2002. The Immigration and Naturalization Service served Harding
with a Notice to Appear charging that he was subject to removal under § 237(a)(1)(D)(i)
of the INA, 8 U.S.C. §1227(a)(1)(D)(i).
Harding appeared before an Immigration Judge (IJ) on September 19, 2002, and
was advised that he had until October 17, 2002 to file a cancellation application for relief.
When Harding next appeared before the IJ, on March 10, 2003, it became evident that
Harding’s prior counsel had failed to timely file a cancellation application for relief, and
had done so only ten days before the March hearing. At the March 10 hearing, Harding
withdrew his application for relief and the IJ granted him 120 days to voluntarily depart
the country by July 8, 2003. Harding did not leave the United States as ordered and an
alternative order of removal was imposed.
More than two years later, on October 11, 2005, Harding, represented by new
counsel, filed a motion to reopen with the IJ. Harding contends his prior counsel
provided ineffective assistance by not explaining the voluntary departure procedure.
Harding said he sought new counsel after hearing accounts of other immigration cases

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that seemed similar to his. On November 28, 2005 the IJ denied Harding’s motion to
reopen, for failure to file within the ninety day deadline that would be necessary to qualify
for equitable tolling. The IJ found Harding failed to demonstrate he was defrauded by
prior counsel and failed to demonstrate he used due diligence in his attempts to
investigate and bring his ineffective assistance claim before the court. Harding timely
appealed the IJ’s decision to the Board on December 21, 2005. On May 10, 2006, the
Board affirmed without opinion. This appeal followed.
II.
We review a final order of the Board denying a motion to reopen for abuse of
discretion. INS v. Doherty, 502 U.S. 314, 323-24 (1992). This standard is “highly
deferential” and the Board’s decision will not be disturbed unless it is determined to be
“arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.
2004) (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994)). The Board’s findings of
fact may not be disturbed if supported by substantial evidence. Dia v. Ashcroft, 353 F.3d.
228, 247 (3d Cir. 2003) (en banc). Finally, with regard for questions of law, we review
the Board's legal conclusions de novo. Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir.
2004).
III.
A.
Harding contends he was the victim of ineffective assistance of counsel because

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his prior attorney failed to timely file his cancellation application, advised him to
withdraw that application and take voluntary departure, and then failed to explain what
voluntary departure entailed. The government contends the Board acted within its
discretion in denying as untimely Harding’s motion to reopen.
A motion to reopen must be filed within ninety days after the date on which a final
administrative decision is rendered. 8 U.S.C. § 1229a(c)(7)(C)(i). Here the petitioner did
not file his motion to reopen until more than two years after the final decision in his case,
far exceeding the statutory deadline. In Borges, which involved a 180 day time limitation
to file a motion to reopen under 8 U.S.C. § 1229a(b)(5)(C)(I), we held that time limit may
be subject to equitable tolling where fraud is alleged. Borges v. Gonzales, 402 F.3d 398,
406 (3d Cir 2005). Subsequently, we extended equitable tolling to the ninety day time
limitation in 8 U.S.C. § 1229a(c)(7) on claims where fraud is alleged. Mahmood v.
Gonzales, 427 F.3d 248, 251 n.7 (3d Cir. 2005). But we have recognized that equitable
tolling is an extraordinary remedy which should be granted only sparingly and in
“exceptional circumstances.” Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005);
Borges, 402 F.3d at 407.
Harding’s ineffective assistance claims do not support his contention his former
lawyer made a “material factual misrepresentation” or did so “with knowledge or belief of
its falsity.” Valansi v. Ashcroft, 278 F.3d 203, 209 (3d Cir. 2002). Harding contends that
his lawyer actively misled him. Yet, he contends only his former counsel failed to

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We acknowledged, but did not adopt, a commentator’s proposed distinction between1
misfeasant ineffective assistance of counsel and nonfeasant ineffective assistance of
counsel. Bejar v. Ashcroft, 324 F.3d 127, 131 n. 1 (3d Cir. 2003).
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properly inform him of the details and consequences regarding his voluntary departure
agreement. Harding offers nothing to support his claim that his prior attorney actively
misled him, or that his prior counsel told him his application for relief had been timely
submitted. Nor does he specify what misrepresentations his former counsel made, if any,
when advising him to withdraw his application for relief and to apply for voluntary
departure.
We agree with the government that Harding has not established ineffective
assistance of counsel. Harding has not shown that he merits equitable tolling based on1
alleged ineffective assistance of counsel.
B.
Furthermore, Harding failed to exercise the requisite due diligence during a period
of over two years. Even when allegations of ineffective counsel would, if proven, justify
equitable tolling, such relief is barred if the petitioner exhibited a lack of due diligence in
asserting the claim. Mahmood, 427 F.3d at 252–253. A petitioner must demonstrate he
or she “exercised reasonable diligence in investigating and bringing the claim. . . . Mere
excusable neglect is not sufficient.” Robinson v. Johnson, 313 F.3d 128, 142 (3d Cir.
2002) (quoting Miller v. New Jersey Department of Corrections, 145 F.3d 616, 618 –19).
Equitable tolling in immigration appeals may apply where fraud or concealment of the

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existence of a claim prevents the petitioner from timely filing a motion. Iavorski v. INS,
232 F.3d 124, 134 (2d Cir. 2000). But due diligence is not simply satisfied by merely
contacting counsel. See id. at 134–135 (finding the petitioner did not establish due
diligence where he made several unsuccessful attempts to contact counsel for information
regarding his appeal and then made no further investigatory attempt for more than two
years).
Harding contends he was first made aware his cancellation application was not
timely filed during his March 10, 2003 hearing. There is no evidence Harding took any
steps to redress this issue in the two preceding years until he retained new counsel.
Harding’s new counsel requested tapes of Mr. Harding’s hearings on April 6, 2005. But
before listening to the tapes, Harding’s new counsel informed him that his former attorney
had given him incorrect advice. Harding does not account for the intervening time after
his new counsel informed him of the possible fraud (sometime before April 6, 2005)
before he filed the motion to reopen (October 11, 2005). Accordingly, Harding still failed
to file the motion within ninety days of his new attorney alerting him of the alleged fraud.
See id. at 134 (“[E]quitable tolling of a statue of limitations is permitted until the fraud or
concealment is, or should have been, discovered by a reasonable person in the situation.”).
We agree with the IJ that Harding’s efforts do not constitute the requisite due
diligence for equitable tolling. The Board’s decision to affirm the IJ’s ruling was
reasonable and was not “arbitrary, irrational, or contrary to law.” Guo, 386 F.3d at 561.

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C.
Harding also contends his due process rights were violated because the IJ
erroneously interpreted the evidence of his claim. He does not contend he was denied
notice, a reasonable opportunity to present evidence, disclosure of fact finding or an
individualized determination based on the particular circumstances of his case. Rather, he
contends the IJ’s erroneous findings of fact deprived him of due process. We have held
that traditional abuse of discretion challenges recast as constitutional due process claims
are insufficient to give this Court jurisdiction under §1258(a)(2)(D). Jarbough v.
Attorney Gen. of the United States, 483 F.3d 184, 189–190 (3d Cir. 2007). Accordingly,
Harding has failed to state a colorable constitutional violation.
IV.
For these reasons, we will deny Harding’s petition and affirm the Board’s order.

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