Aguibou Toure v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3691
AGUIBOU TOURE,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
On a Petition For Review of an Order
of the Board of Immigration Appeals
Agency No. A98-365-226
Immigration Judge: Alberto J. Riefkohl
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 7, 2008
Before: MCKEE, SMITH AND CHAGARES, Circuit Judges
(Opinion filed: April 11, 2008)
OPINION
PER CURIAM
Aguibou Toure, a native and citizen of Guinea, was admitted to the United States
in May 2003 on a visitor’s visa. He is removable under Immigration & Nationality Act §
237(a)(1)(B), 8 U.S.C.§ 1227(a)(1)(B), as an overstay. Toure filed an application for

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asylum based on political persecution but he withdrew it, he says upon the advice of
counsel, Sujeet K. Mohanty, Esquire. He was granted voluntary departure on March 13,
2005. Toure married on May 6, 2005. Just prior to the expiration of the voluntary
departure period, he filed his first motion to reopen, through attorney Mohanty, seeking to
adjust his status on the basis of this marriage to a U.S. citizen. The Department of
Homeland Security opposed the motion on the basis of a lack of evidence that the
marriage was bona fide. The Immigration Judge denied the motion to reopen on April 29,
2006, explaining that Toure had been advised, through his counsel, to supplement his
motion with documentation concerning the bona fides of his marriage, and he had failed
to do so.
Toure obtained new counsel, Ronald S. Salomon, Esquire, who then filed a second
motion to reopen, in which Toure contended that Mr. Mohanty’s substandard work in
preparing and filing the first motion to reopen had cost him the opportunity to adjust his
status or win asylum-related relief. He contended that Mr. Mohanty never told him that
additional documentation in support of the first motion to reopen was required. On June
12, 2006, the Immigration Judge denied this motion. He concluded that it was
numerically barred, see 8 C.F.R. § 1003.23(b)(1), and that there was no basis for
equitable “tolling” of the numerical bar because Toure had not shown that he had been
defrauded by counsel. See Borges v. Gonzales, 402 F.3d 398, 406-07 (3d Cir. 2005)
(where attorney engaged in fraudulent activity causing essential action in alien’s case to
be undertaken ineffectively, out of time, or not at all, equitable tolling is available).

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1 To comply with Lozada, a motion to reopen based on ineffective assistance of
counsel must meet three requirements: (1) the motion must be supported by an affidavit
of the alien attesting to the relevant facts; (2) former counsel must have been informed of
the allegations and allowed the opportunity to respond; and (3) the motion must reflect
whether a complaint has been filed with appropriate disciplinary authorities, and if not,
why not. See Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005).
3
Toure appealed to the Board of Immigration Appeals and filed a motion to remand.
On October 26, 2006, the Board dismissed the appeal and denied the motion. Noting that
a valid claim of ineffective assistance of counsel may provide a basis for allowing an
otherwise numerically barred second motion to reopen, the Board found that Toure had
not been prejudiced by Mr. Mohanty’s alleged substandard representation. Applying
Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), and In re: B-B-, 22 I. & N. Dec. 309
(BIA 2003) (under Lozada alien must show that conduct of former counsel was so
egregious that it rendered his hearing unfair), the Board credited a submission by Mr.
Mohanty, A.R. 90-91, in which he stated that he had tried repeatedly to contact Toure for
the required documentation. The Board also noted that the Lozada requirement of filing a
misconduct complaint with the state bar had not been met.1 The Board further noted that
the required documentation, in support of either asylum or adjustment of status, still had
not been provided. Toure did not file a timely petition for review of this decision (and
thus we are unable to review it, Stone v. Immigration & Naturalization Serv., 514 U.S.
386, 405-06 (1995) (holding that, in context of motion to reopen, Congress envisioned
separate timely petitions for review of separate final orders)).
On March 26, 2007, Toure filed a third motion to reopen, through new counsel,

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Theodore Vialet, Esquire, in Immigration Court, again asserting ineffective assistance of
Mr. Mohanty. This time the Lozada attorney misconduct complaint requirement had been
met. The Immigration Judge denied the third motion as clearly subject to the numerical
and time bars, and again held that equitable tolling was unwarranted because evidence of
attorney fraud was lacking. Toure appealed, but, on August 17, 2007, the Board
dismissed the appeal, finding no basis for revisiting its earlier decision that Toure was not
prejudiced by counsel’s actions, see Fadiga v. U.S. Attorney General, 488 F.3d 142 (3d
Cir. 2007), and thus there was no basis for equitable tolling.
Toure has timely petitioned for review of the Board’s August 17, 2007 decision.
He contends that he was prejudiced by Mr. Mohanty’s conduct with respect to both his
asylum and adjustment of status applications. We have jurisdiction to review the denial
of Toure’s's third motion to reopen under 8 U.S.C. § 1252(a). Ordinarily, the denial of a
motion to reopen is reviewed for abuse of discretion, Immigration & Naturalization Serv.
v. Doherty, 502 U.S. 314, 323 (1992), but this case turns on a question of law and thus
our review is de novo, Kamara v. U.S. Attorney General, 420 F.3d 202, 211 (3d Cir.
2005).
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 C.F.R. § 1003.2(c)(2); 8 C.F.R. §
1003.23(b)(1). An alien also is limited to only one motion to reopen removal
proceedings, whether before the Board or the immigration judge. Id. Although the

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2 Strictly speaking, equitable “tolling” is the doctrine that the statute of limitations will
not bar a claim as untimely if the plaintiff, despite diligent efforts, did not discover the
injury until after the limitations period expired. Id. (citing Black's Law Dictionary 579
(8 th ed. 2004) (internal quotations and brackets removed).
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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. 2005), we
have not issued a precedential opinion deciding that numerical limits on motions to
reopen may be “equitably tolled” by a claim for ineffective assistance of counsel, see
Luntungan v. U.S. Attorney General, 449 F.3d 551, 557 (3d Cir. 2006).2 Even assuming
that the one motion limit may be equitably tolled, we hold that equitable tolling does not
apply here.
Toure alleged that his first counsel, Mr. Mohanty, who filed the first motion to
reopen, was ineffective. Under the doctrine of equitable tolling, Toure might be entitled
to file a second motion, but, in effect, he has already received this form of relief. Toure’s
second counsel, Mr. Salomon, filed a second motion to reopen, which the Board rejected
upon a finding that Toure had not been prejudiced by Mr. Mohanty’s representation. The
Board also found that the Lozada requirement of filing a misconduct complaint with the
state bar had not been met. Only when Toure filed his third motion did the Board deny it
as numerically barred.
To demonstrate that the Board erred in denying his third motion to reopen as
numerically barred, Toure must show that equitable considerations should permit him to
file the third motion. Luntungan, 449 F.3d at 557. “This showing would have to be

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based on unfairness surrounding the second motion to reopen.” Id. If the second motion
gave Toure a fair chance to be heard, there is no equitable reason to permit a third motion,
id. at 557-58. Toure does not allege that the attorney who filed the second motion, Mr.
Salomon, defrauded him or otherwise provided ineffective assistance, see Fadiga, 488
F.3d at 155-57, and we thus conclude that the second motion gave Toure a fair chance to
be heard. We held in Luntungan that “[e]quity requires nothing more.” Id. at 558.
We will deny the petition for review.

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