Jose Borges v. ALBERTO GONZALES, Attorney General of the United States

Attorney General Alberto Gonzales has been substituted for*
former Attorney General John Ashcroft, the original respondent in this
case, pursuant to Fed. R. App. P. 43(c).
1
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1835
JOSE BORGES,
Petitioner
v.
ALBERTO GONZALES, Attorney General*
of the United States,
Respondent
PETITION FOR REVIEW FROM THE ORDER AND
JUDGMENT OF THE BOARD OF IMMIGRATION
APPEALS
Agency No. A73 591 940
Argued: February 8, 2005
Before: BARRY, FUENTES, and BECKER, Circuit Judges
(Opinion Filed: March 30, 2005)

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2
Paul O’Dwyer, Esq. (Argued)
Suite 902
134 West 26th Street
New York, NY 10001
Counsel for Petitioner
Hillel R. Smith, Esq. (Argued)
Anthony W. Norwood, Esq.
Linda S. Wernery, Esq.
William C. Peachey, Esq.
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, DC 20044
Counsel for Respondent
OPINION OF THE COURT
BARRY, Circuit Judge
A motion to reopen a removal order issued in absentia
must be filed within 180 days of the order. The primary issue
before us, an issue of first impression, is whether the 180-day
time limitation is mandatory and jurisdictional, or whether it is
analogous to a statute of limitations and therefore can be
equitably tolled. If it is the latter, we must decide whether fraud
constitutes a basis for equitable tolling.
We hold that the 180-day time limitation can be equitably
tolled, and can be tolled for fraud. As such, we will remand this
case to the Board of Immigration Appeals (“BIA”) for it to

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The INS is now known as the Bureau of Citizenship and1
Immigration Services, and operates within the Department of
Homeland Security (“DHS”). 6 U.S.C. § 271 (2002); see also
Ambartsoumian v. Ashcroft, 388 F.3d 85, app. at 95 n.6 (3d Cir.
2004).
33
determine whether fraud was, in fact, perpetrated on petitioner
by his legal representatives and, if so, whether the time
limitation was sufficiently tolled so as to render the motion to
reopen timely.
I.
Jose Borges entered the United States on February 12,
1996 with a B-2 tourist visa. The then-Immigration and
Naturalization Service (“INS”) commenced removal1
proceedings in August of 1997, alleging that he was an illegal
overstay. Borges hired an immigration services company, Entra
America (“Entra”), in January of 1998 to provide him with
representation. What he was provided with, he alleges, was
representation that amounted to fraud.
A. Entra and Alfred Placeres, Esq.
Adela Ivan was the owner of Entra. She told Borges that
she was a paralegal, but that Borges would be represented by one
of Entra’s immigration attorneys, Alfred Placeres, Esq. She also
told him that Placeres would file a motion seeking a change of
venue from New Jersey, where the removal proceedings were
pending, to New York, where Borges lived, and that Placeres
would represent Borges on an adjustment of status petition based
on his then-pending marriage to Jolie LaMarca, a United States
citizen.
On January 20, 1998, a change of venue motion which,
Placeres tells us, “we” prepared, A200, was filed by Placeres.
One week later, on January 27, Borges appeared at the
Immigration Court in Newark, New Jersey. No attorney
accompanied him. The Immigration Judge (“IJ”) denied the

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Under 8 C.F.R. § 245.2(a)(1) (1965) (amended 2002),2
“[a]fter an alien . . . is in deportation or removal proceedings, his
or her application for adjustment of status . . . shall be made and
considered only in those proceedings.”
44
change of venue motion and told Borges that if he did not return
on February 3, 1998, he would be deported. Borges contacted
Ivan, and she allegedly told him, supposedly at Placeres’s
behest: (1) that Placeres would not appear in court; (2) that if
Borges went to court without an attorney, he would be deported;
and (3) that because Borges had a pending application for
adjustment of status, he could not be deported. Borges did not
attend the proceedings on February 3, 1998, and the IJ ordered
him removed from the United States in absentia.
In the meantime, on January 29, 1998, Borges married
Ms. LaMarca. One month later, an Immediate Relative Petition
(Form I-130) and an Adjustment of Status Petition (Form I-485)
were filed – again, by Placeres. The documents were not only
erroneously filed with the INS in New York, and not with the
Immigration Court in New Jersey, but erroneously indicated that2
Borges had never been the subject of removal proceedings.
Unaware of the Immigration Court’s orders, the INS in New
York issued Borges an employment authorization based on the
pending petitions, and an adjustment of status interview, which
was scheduled for February 26, 2000. Given those facts, Borges
assumed that the in absentia order had been vacated.
B. First Motion to Reopen
In April of 1998, Borges received a letter from the INS
telling him to report to the Hemisphere Center in Newark for
deportation to Venezuela. Borges went to the Entra office and
showed the letter to Ivan, who told him that Placeres had “taken
care of” the in absentia order of removal by filing the adjustment
of status petition, and reassured him that Placeres would file a
motion to reopen and formally vacate the in absentia order.
On April 25, 1998, a timely “Motion to Reopen and

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This indicates that Borges had a petition for adjustment of3
status pending under section 245 of the Immigration and
Naturalization Act. See 8 U.S.C. § 1255 (1952) (amended 2003).
55
Reconsider” was filed with the Immigration Court. It sought to
vacate the in absentia order solely on the ground that the motion
for a change of venue had been wrongly denied; it never
mentioned the pending adjustment of status petition or gave any
reason for Borges’s failure to appear on February 3. The IJ
denied the motion and served a copy of the decision on Placeres.
Borges, who was not served, believed the motion had been
granted.
During the period of his representation, it does not appear
that Placeres ever spoke to Borges, much less met with him.
C. Jamal Jbara, Esq.
Borges and his wife attended the adjustment of status
interview in New York on February 2 or 3, 2000. They were
represented by Jamal Jbara, Esq., another attorney working out
of Entra. Jbara told Borges not to mention that an order of
removal had issued. Borges, who believed the order had been
vacated anyway, complied with that instruction. The I-130 and
I-485 Petitions were granted, and Borges was approved for
permanent residence.
In April 2000, Borges planned to travel to Venezuela to
visit his mother, who was ill. He contacted Jbara to make sure
that he would be able to re-enter the United States because he
had not yet received his green card. Jbara told Borges,
apparently for the first time, that the order of removal had not
been vacated.
On May 10, 2000, Borges and Jbara again met with the
INS officer who had conducted the adjustment of status
interview. The officer voided the permanent residence stamp he
had earlier placed on Borges’s passport, replaced it with a stamp
that said “pending Sec. 245,” and said he was transferring the3

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This Office represented the INS in proceedings before the4
Immigration Court.
Typically, an alien can only submit one motion to reopen.5
See 8 U.S.C. § 1229a(c)(6) (1952)(amended 2000). When an order
of removal is issued in absentia, however, the regulations are more
lenient and it appears that multiple motions to reopen may be filed
by the alien. See Saakian v. INS, 252 F.3d 21, 25 (1st Cir. 2001);
8 C.F.R. § 1003.23(b)(4)(iii)(D) (1987) (amended 2003). Because
there is nothing in the record that explains why the IJ and the BIA
permitted this second motion to reopen, we presume it is because
of this context-driven leniency.
66
case to New Jersey. The INS never commenced formal
proceedings to rescind the approval of adjustment of status.
Also on or about May 10, 2000, Jbara agreed to file a
motion with the Immigration Court to reopen the removal
proceedings. He did not do so. Rather, he simply submitted a
proposed joint motion to reopen to the Office of the District
Counsel. From May of 2000 until the summer of 2002, when he4
retained a new attorney, Borges regularly called Jbara to
ascertain the status of the motion to reopen, and Jbara
consistently led him to believe that the motion was still under
consideration by the IJ.
D. Second Motion to Reopen5
On January 27, 2003, Borges, represented by present
counsel, Paul O’Dwyer, Esq., filed another motion to reopen
with the Immigration Court. The motion alleged that Ivan, not
Placeres, had performed all of the legal work during the critical
months that Placeres was supposedly representing Borges, and
that Borges had been defrauded by Placeres and Ivan into
believing that a licensed and experienced attorney was
representing him. According to Borges, those fraudulent
representations led him to believe that he had nothing to worry
about and kept him from discovering how serious his situation
was and that, in fact, he remained under an in absentia order of
removal. Indeed, he continued, the order of removal would not

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Lozada requires that:6
A motion based upon a claim of ineffective
assistance of counsel should be supported by an
affidavit of the allegedly aggrieved respondent
attesting to the relevant facts. . . . [T]hat affidavit
should include a statement that sets forth in detail the
agreement that was entered into with former counsel
with respect to the actions to be taken on appeal and
what counsel did or did not represent to the
respondent in this regard. Furthermore, . . . former
counsel must be informed of the allegations and
allowed the opportunity to respond. Any subsequent
response from counsel, or report of counsel’s failure
or refusal to respond, should be submitted with the
motion. Finally, if it is asserted that prior counsel’s
handling of the case involved a violation of ethical
or legal responsibilities, the motion should reflect
whether a complaint has been filed with appropriate
d i s c i p lin a r y a u th o r itie s r e g a r d i n g s u c h
representation, and if not, why not.
Matter of Lozada, 19 I. & N. Dec. 637, 638 (BIA 1988).
77
have been entered had it not been misrepresented to him that if
he went to court, he would be deported. He argued that the 180-
day period within which to file a motion to reopen the in
absentia removal order should, therefore, be tolled until
September of 2002, when he learned of the fraud. He also
argued that the ineffective assistance of Placeres – and Ivan –
constituted an exceptional circumstance excusing his failure to
appear at his February 1998 removal hearing.
On March 10, 2003, the Immigration Court denied
Borges’s motion to reopen because it was untimely and because
he had not complied with the three-step procedure under Matter
of Lozada, 19 I. & N. Dec. 637 (BIA 1988) for raising a claim6
of ineffective assistance of counsel. In April of 2003, Borges
filed a timely motion to reconsider, arguing that he had in fact

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The IJ was advised that Borges had executed an affidavit7
reciting the agreement he had with his former counsel, had filed a
complaint alleging the same facts to the Disciplinary Committee of
the New York State Supreme Court, Appellate Division, First
Department, and had served the complaint on former counsel. On
February 21, 2003, O’Dwyer advised the IJ that an investigation
had been instituted by the Disciplinary Committee, and provided
the docket numbers the Appellate Division had assigned.
Borges later filed a petition for a Writ of Habeas Corpus in8
the Southern District of New York, which was denied. He has also
filed a civil lawsuit against Placeres, Jbara, Ivan, and Entra. We
have no information regarding the status of that action.
88
complied with the Lozada requirements. The IJ denied the7
motion, finding it, too, untimely and finding that there was no
reason to disturb the finding of noncompliance with Lozada.
Borges appealed both decisions to the BIA.
On February 18, 2004, Borges was apprehended by
officials from the DHS and was taken to a detention center in
Jamaica, New York. On March 1, 2004, the BIA dismissed his
appeal. The BIA determined, as relevant here, that an
ineffective assistance of counsel claim does not qualify as an
exception to the 180-day requirement for filing a motion to
reopen, an argument Borges had not made, and determined that
Borges had failed in some unspecified way to comply, as an
initial matter, with Lozada and that this “fundamental defect”
could not be remedied by his “subsequent” compliance. The
BIA did not address Borges’s argument that the 180-day
requirement should be equitably tolled because of fraud. Finally,
the BIA concluded, based on the competing affidavits of Borges
and Placeres, that Placeres’s denial that he told Ivan to tell
Borges not to appear at the February 3 removal hearing had the
“ring of truth” and, thus, that Borges had not established the
prejudice component of his ineffective assistance of counsel
claim. A1-2. Borges timely appealed to this Court, and on April
22, 2004, we issued a stay of removal pending appeal.8

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If the alien demonstrates that he did not receive notice of9
the removal proceeding, the motion to reopen may be “filed at any
time.” 8 U.S.C. § 1229a(b)(5)(C)(ii). There is no contention by
Borges that he was not provided with notice of the February 3
proceeding.
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II.
We have jurisdiction under 8 U.S.C. § 1252(a) (1952)
(amended 1996). We review the denial of a motion to reopen
under an abuse of discretion standard. Shardar v. Ashcroft, 382
F.3d 318, 324 (3d Cir. 2004). The denial of a motion to
reconsider is also reviewed for abuse of discretion. See INS v.
Abudu, 485 U.S. 94, 109-10 (1988). We will disturb the BIA’s
denial of a motion to reopen or to reconsider only if it was
“arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386
F.3d 556, 562 (3d Cir. 2004) (internal citation omitted). In
ruling on questions of law, we review the BIA’s legal
conclusions de novo. Smriko v. Ashcroft, 387 F.3d 279, 282
(3d Cir. 2004). We review factual determinations under a
“substantial evidence” standard, which requires us to treat
findings of fact as “conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B); see also Ambartsoumian v. Ashcroft, 388 F.3d
85, 89 (3d Cir. 2004).
III.
If an alien or his counsel of record has been provided with
written notice of a removal proceeding, and the alien does not
attend, he “shall be ordered removed in absentia if the [DHS]
establishes by clear, unequivocal, and convincing evidence that
the written notice was so provided and that the alien is
removable[.]” 8 U.S.C. § 1229a(b)(5)(A) (1952) (amended
2000). The removal order may be rescinded only if the alien (1)
files a motion to reopen within 180 days of the issuance of the
removal order, and (2) demonstrates that his failure to appear
was due to “exceptional circumstances.” Id. at (b)(5)(C)(i); see
also Bejar v. Ashcroft, 324 F.3d 127, 131 (3d Cir. 2003). There9

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10 10
is no indication in the statute that the 180-day time limitation is
jurisdictional. The statute does explain that “exceptional
circumstances” are those “circumstances (such as serious illness
of the alien or serious illness or death of the spouse, child, or
parent of the alien, but not including less compelling
circumstances) beyond the control of the alien.” 8 U.S.C. §
1229a(e)(1).
A. Equitable Tolling
Borges concedes, as he must, that his 2003 motion to
reopen was well outside of the 180-day window for seeking
rescission of his February 3, 1998 in absentia order of removal,
and he has never argued to the contrary. Respondent, however,
has continually misconstrued what Borges has consistently
argued is the basis for equitably tolling this 180-day period.
Borges has always argued, and argues now, that the 180-
day period should be equitably tolled because Ivan and Placeres
defrauded him by leading him to believe that Placeres was doing
all of his legal work, by making fraudulent representations about
the status of his case, and by telling him, among other things,
that if he went to the Immigration Court for his February 3
hearing, he would be deported. Were it not for this fraud, he
argues, he would have appeared at his removal proceedings and
an in absentia order of removal would not have issued; indeed,
given that he was eligible for adjustment of status, he had no
reason not to appear. Borges also argues that he did not discover
the fraud until September, 2002 and so, if the 180-day period
were equitably tolled, the motion to reopen that was filed on
January 27, 2003 would be timely.
Borges has never argued, and does not now argue, that
ineffective assistance of counsel can or should constitute an
“exception” to the 180-day time limit, but only that, if and when
the 180-day period is equitably tolled, ineffective assistance can
constitute the requisite extraordinary circumstance excusing a
failure to appear. The BIA, however, dismissed his motion to
reopen in part because it misunderstood this argument.
Respondent suffers from a similar misunderstanding, as

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11 11
evidenced by his repeated citation to our decision in Bejar,
which held that “alleged ineffective assistance of counsel is not
an exception to the 180-day regulatory time limit.” Bejar, 324
F.3d at 131 (citing In re Lei, 22 I. & N. Dec. 113 (BIA 1998)).
Correcting the mischaracterization of Borges’s argument
only gets us so far, for we must still decide whether the 180-day
period for reopening an in absentia order of removal is subject to
equitable tolling. The determinative factor is whether that time
period is jurisdictional or whether it is analogous to a statute of
limitations. If it is the former, it cannot be equitably tolled; if it
is the latter, it can be.
Several of our sister courts of appeals have weighed in on
the issue now before us. The Ninth Circuit has decided two
cases very similar, on their facts, to this one. In Lopez v. INS,
the Court granted the petition for review, finding that “the statute
of limitations to reopen an order of deportation is equitably
tolled where the alien’s late petition is the result of the deceptive
actions by a notary posing as an attorney” for the “apparent law
office” Lopez had retained. 184 F.3d 1097, 1098-1100 (9th Cir.
1999). The notary’s actions, including telling Lopez that he
need not attend his deportation hearing, resulted in an in
absentia order of removal being entered. See id. at 1100-01.
One year later, the Court granted similar relief to an alien who
was “defrauded by an individual purporting to provide legal
representation” who “took Varela’s money” but did not file a
motion to reopen or an application for adjustment of status until
it was too late to do so. Varela v. INS, 204 F.3d 1237, 1240 (9th
Cir. 2000). More recently, the Court held that “[w]here the
ineffective performance was that of an actual attorney and the
attorney engaged in fraudulent activity causing an essential
action in her client’s case to be undertaken ineffectively, out of
time, or not at all, equitable tolling is available.” Iturribarria v.
INS, 321 F.3d 889, 898 (9th Cir. 2003); see also Rodriguez-
Lariz v. INS, 282 F.3d 1218, 1224-25 (9th Cir. 2002).
In both Lopez and Varela, the Court concluded that the
relevant time period for reopening an order of removal was
analogous to a statute of limitations, and then relied on what

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Anin appears to have conflated these two requirements.10
See id. at 1278 (remarking that there is no “exception to the INA’s
180 day filing deadline for exceptional circumstances to reopen an
12 12
Lopez describes as the “old chancery rule” that “where a
plaintiff has been injured by fraud and remains in ignorance of it
without any fault or want of diligence or care on his part, the bar
of the statute does not begin to run until the fraud is
discovered[.]” Lopez, 184 F.3d at 1100 (internal citation
omitted). Based on the fact that “[t]his equitable doctrine is read
into every federal statute of limitation,” Holmberg v. Armbrecht,
327 U.S. 392, 397 (1946) (emphasis in original), tolling was
deemed appropriate under the circumstances of both cases.
See Lopez, 184 F.3d at 1100; Varela, 204 F.3d at 1240.
The First, Second, Fourth, and Sixth Circuits have more
generally considered applying, or have applied, equitable tolling
to motions to reopen. See, e.g., Jobe v. INS, 238 F.3d 96, 100-
01 (1st Cir. 2001) (considering, as an en banc court, the
equitable tolling argument but dismissing the petition for review
on the ground that, even if tolling were available, petitioner had
not exercised due diligence); Iavorski v. INS, 232 F.3d 124, 129-
135 (2d Cir. 2000) (concluding that there can be tolling because
there is “no evidence that Congress intended to enact a
jurisdictional bar to untimely motions to reopen,” but finding
that petitioner had not exercised due diligence); Akwada v.
Ashcroft, 2004 U.S. App. Lexis 23526, 14-16 (4th Cir. 2004)
(taking the same approach as taken by the Jobe Court);
Scorteanu v. INS, 339 F.3d 407, 413 (6th Cir. 2003) (same).
The Eleventh Circuit, on the other hand, in one of the
earlier cases in this area, held that the 180-day time period is
jurisdictional, and refused to find an “exception” to the 180-day
period based on ineffective assistance of counsel. Anin v. Reno,
188 F.3d 1273, 1278-79 (11th Cir. 1999). This is essentially
what we held in Bejar. Here, however, we are dealing with
tolling to permit reopening after 180 days based on allegations of
fraud, not an exception on the ground of ineffective assistance to
the 180-day time period excusing a failure to appear.10

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deportation order.”).
13 13
Therefore, Anin does not impact our analysis.
We hold that the 180-day time limitation is more
appropriately considered as analogous to a statute of limitations
and, thus, subject to equitable tolling. Cf. Island Insteel Sys.,
Inc. v. Waters, 296 F.3d 200, 216 (3d Cir. 2002) (internal
citations omitted) (explaining that statutes of limitations serve
the purpose of preventing litigation of stale claims, putting
defendants on notice, and preventing plaintiffs from “sleeping on
their rights.”). We find it instructive, as we have before, that
there is no reference to jurisdiction in the statute or in the
legislative history. See, e.g., Miller v. New Jersey Dep’t of
Corrections, 145 F.3d 616, 618 (3d Cir. 1998). Given this
silence, we see no “good reason to believe that Congress did not
want the equitable tolling doctrine to apply[.]” United States v.
Brockamp, 519 U.S. 347, 350 (1997) (emphasis in original).
Furthermore, we, too, have long accepted the “old chancery
rule” for tolling on the ground of fraud that Lopez recites, see,
e.g., Reuther v. Trs. of Trucking Employees, 575 F.2d 1074,
1078-79 (3d Cir. 1978), and follow the Ninth Circuit’s lead in
applying it in the context seen here.
Concluding, as we do, that tolling may be appropriate
where there is fraud is not the same, however, as concluding that
fraud has been shown. A finding of fraud is a factual
determination to be made by the BIA in the first instance. Cf.
Abdille v. Ashcroft, 242 F.3d 477, 489-90 (3d Cir. 2001).
Although “fraud” is not defined in the Act, the BIA has
acknowledged, and we have found, that the term “‘should be
used in the commonly accepted legal sense, that is, as consisting
of false representations of a material fact made with knowledge
of [their] falsity and with intent to deceive the other party. The
representation must be believed and acted upon by the party
deceived to his disadvantage.’” Valansi v. Ashcroft, 278 F.3d
203, 209 (3d Cir. 2002) (quoting Matter of GG, 7 I. & N. Dec.
161, 164 (BIA 1956). This determination will be for the BIA on
remand. We note, in this connection, that we have granted

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14 14
Borges’ motion to supplement the record with what he describes
as newly-discovered evidence of fraud – including altered
documents – which, on remand, the BIA should consider
together with the record itself.
Parenthetically, we reject, as a matter of law, respondent’s
argument that even if the 180-day time limitation can be
equitably tolled, and even if fraud is shown, Borges is ineligible
for relief because he did not exercise due diligence.
See Robinson v. Johnson, 313 F.3d 128, 142 (3d Cir. 2002)
(explaining that a petitioner must “exercise reasonable diligence
in investigating and bringing the claim.”) (quoting Miller, 145
F.3d at 618-19). The record permits no conclusion other than
that Borges diligently attempted, over the course of five years, to
have his immigration status resolved. For every one of the “red
flags” that respondent argues Borges ignored or unreasonably
overlooked, there was a corresponding red herring offered up by
Ivan and Placeres, and later by Jbara and even the INS, to
prevent Borges from discovering the mishandling of his case any
earlier than he did. For example, although Borges had been
ordered removed, immediately thereafter he was granted
employment authorization and an interview with the INS on his
adjustment of status petition. Then, when Borges received the
order to report for deportation, Ivan reassured him that Placeres
had “taken care of” everything by filing that petition. And when
he was told that he could not re-enter the country if he left to
visit his sick mother, Jbara reassured him that the situation
would be resolved through the filing of a motion to reopen,
which he consistently led Borges to believe was pending,
although it was not.
In sum, on remand, the BIA is to determine whether fraud
was perpetrated on Borges by Placeres and/or Ivan, causing the
in absentia order of removal to issue. If so, the 180-day period
for filing a motion to reopen should be equitably tolled.
B. “Exceptional Circumstances” and Ineffective
Assistance of Counsel
Borges has not argued that he did not receive notice of his

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As noted earlier,“exceptional circumstances” include11
“circumstances (such as serious illness of the alien or serious
illness or death of the spouse, child, or parent of the alien, but not
including less compelling circumstances) beyond the control of the
alien.” 8 U.S.C. § 1229a(e)(1).
15 15
removal hearing. Assuming, therefore, that by virtue of tolling
his motion to reopen is deemed timely filed, he must also
demonstrate that his failure to appear is excused by “exceptional
circumstances” before the removal order can be rescinded.
This is where Borges raises his ineffective assistance of counsel
argument, claiming that ineffectiveness constituted the
“exceptional circumstance” that caused him to miss the February
3, 1998 hearing at which he was ordered removed in absentia.11
Respondent concedes that ineffective assistance of counsel may
support a motion to reopen based on exceptional circumstances.
Resp. Br. at 27.
Respondent is correct in so conceding. “[T]he Fifth
Amendment entitles aliens to due process of law in deportation
proceedings,” Reno v. Flores, 507 U.S. 292, 306 (1993), a right
that must be strictly protected because deportation “visits a great
hardship on the individual and deprives him of the right to stay
and live and work in this land of freedom.” Bridges v. Wixon,
326 U.S. 135, 154 (1945). Furthermore, aliens have a statutory
right to counsel, see 8 U.S.C. § 1362 (1952) (amended 1996),
and a constitutional right to counsel based on the Fifth
Amendment’s guarantee of due process of law. Ponce-Leiva v.
Ashcroft, 331 F.3d 369, 374 (3d Cir. 2003). Implicit in the right
to counsel is the requirement that the assistance rendered not be
ineffective. “Ineffective assistance of counsel exists where, as a
result of counsel’s actions (or lack thereof), ‘the proceeding was
so fundamentally unfair that the alien was prevented from
reasonably presenting his case.’” Saakian v. INS, 252 F.3d 21,
25 (1st Cir. 2001) (quoting Bernal-Vallejo v. INS, 195 F.3d 56,
63 (1st Cir. 1999)).
Largely in light of the above, the First, Sixth, and Ninth
Circuits have held ineffective assistance of counsel to be an

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In re Grijalva-Barrera, relied upon by the Saakian Court,12
is remarkably similar to the case before us. See 21 I. & N. Dec.
472 (BIA 1996). In Grijalva-Barrera, the alien’s attorney called
him and told him he did not have to attend a hearing before the
Immigration Court, leaving the alien to find out only later that he
had been deported in absentia. Id. at 473. The BIA held that the
deportation proceedings could be reopened on the ground of
ineffective assistance of counsel because the alien “would have
appeared [at the removal proceedings] but for the
misrepresentations by his former counsel.” Id. at 473-74.
Because we find it unnecessary under the facts of this case13
to reach the issue of ineffective assistance, we also find it
unnecessary to discuss the procedural requirements of Lozada. We
observe, however, that contrary to what was found by the INS and
the BIA, Borges had complied with the requirements and
respondent has conceded that fact.
16 16
“exceptional circumstance.” See, e.g., Asaba v. Ashcroft, 377
F.3d 9, 11 n.4 (1st Cir. 2004); Saakian, 252 F.3d at 24-27;
Denko v. INS, 351 F.3d 717, 723-25 (6th Cir. 2003); Reyes v.
Ashcroft, 348 F.3d 1126, 1129 (9th Cir. 2003). While we12
certainly see no reason not to join them, it is not necessary to do
so at this time; indeed, we wonder why the parties have gone to
such lengths to argue that ineffective assistance of counsel has,
or has not, been shown. After all, to have gotten to this point,
Borges would have had to demonstrate to the BIA that he was
defrauded and, thus, that by virtue of equitable tolling his motion
to reopen was timely filed. But if ineffective assistance of
counsel can be an extraordinary circumstance excusing a failure
to appear, and there is no suggestion that it cannot, a finding by
the BIA that fraud was visited on Borges in the manner alleged
here is surely an extraordinary circumstance in and of itself and,
by definition, “ineffective assistance.” And, of course, if Borges
was unable to demonstrate fraud, there would be no equitable
tolling and, therefore, no reason or, indeed, jurisdiction to
address ineffective assistance. Fraud, not ineffective13
assistance, is the crucial issue here.

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IV.
For the forgoing reasons, we will grant the petition for
review and remand to the BIA for a determination of whether
fraud was committed. As noted above, we have granted
Borges’s motion to supplement the record with newly discovered
evidence supporting his allegations of fraud. We instruct the
BIA to consider this evidence in making its findings of fact on
the issue of fraud. If the BIA finds fraud and finds that, by
virtue of equitable tolling, the motion to reopen was timely filed,
it is instructed to vacate the in absentia order of removal so that
Borges can apply for adjustment of status.
This panel of the Court will retain jurisdiction over any
future appeals relating to this matter. Cf. Chang v. United
States, 327 F.3d 911, 930 (9th Cir. 2003). The stay of removal
previously entered by us will be continued. Finally, Borges has
been detained since February 18, 2004. If an application for his
release pending the proceedings on remand is filed, we anticipate
that the BIA will look favorably on that application.

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