Ricardo Silvio Dos Santos Oliveira v. Alberto R. Gonzales, U.s. Attorney General

* Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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United States Court of Appeals
Fifth Circuit
F I L E D
April 12, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 04-60079
_____________________
RICARDO SILVIO DOS SANTOS OLIVEIRA
Petitioner
v.
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL
Respondent
___________________
Petition for Review of an Order
of the Board of Immigration Appeals
A77 542 899
___________________
Before KING, Chief Judge, and BENAVIDES and STEWART, Circuit
Judges.
PER CURIAM:*
Petitioner Ricardo Silvio Dos Santos Oliveira seeks review
of the decision of the Board of Immigration Appeals (“BIA”)
denying his motion to reopen removal proceedings.
I. Background
Oliveira is a native and citizen of Brazil who entered the
U.S. in December of 1988. In 1999, Oliveira consulted one Joarez
Reis, who, according to Oliveira, represented himself as an

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attorney and agreed to provide Oliveira with legal services aimed
at securing legal status in the U.S. for Oliveira. Over the
course of Reis’s representation of Oliveira, Reis submitted
several documents on Oliveira’s behalf without Oliveira’s
knowledge or consent.
These documents included a pro-se motion for change of venue
from Boston to Dallas and a change of address form which
incorrectly listed Oliveira as residing in Dallas. Reis later
submitted another motion for change of venue requesting that the
proceedings be transferred back to Massachusetts, but the motion
was denied. Because Reis had been submitting these motions and
forms without Oliveira’s knowledge, Oliveira was unaware that he
was scheduled to appear for a removal hearing in Dallas in March
of 2000, and the immigration judge ordered him removed in
absentia. Oliveira was not informed of the order. Reis then
submitted a motion to reopen in April, which was denied. Reis
appealed that decision in November of 2000. While that appeal
was pending, Alan R. Finer, an attorney located in Vineyard
Haven, Massachusetts, became Oliveira’s counsel of record. A few
months later, in November of 2001, the BIA affirmed the
immigration judge’s decision. Notice of the decision was sent to
Finer’s office address.
In the fall of 2003, Oliveira discovered that Reis was not
an attorney and that Reis had defrauded many Brazilian immigrants
in falsely representing himself as an immigration attorney.

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Oliveira hired new counsel, Stephen Lagana, to file a motion to
reopen Oliveira’s immigration proceedings with the BIA based on
ineffective assistance of counsel. The motion alleged that Reis
had falsely represented himself as an attorney, that Reis had
filed documents on behalf of Oliveira without his consent, and
that Oliveira had not received the notice to appear in Dallas in
March of 2000.
The BIA denied the motion to reopen because Oliveira had
failed to file the motion within 180 days of the BIA’s November
decision dismissing Oliveira’s appeal. Equitable tolling was not
warranted because by the time Oliveira’s appeal had been
dismissed, he was represented by Finer, of whom Oliveira had made
no complaint. Oliveira could therefore show no good cause for
failure to file the motion earlier.
II. Standard of Review
We review the BIA’s decisions regarding a motion to reopen
for abuse of discretion. Efe v. Ashcroft, 293 F.3d 899, 904 (5th
Cir. 2002).
It is our duty to allow [the] decision to be made by the
Attorney General’s delegate, even a decision that we deem
in error, so long as it is not capricious, racially
invidious, utterly without foundation in the evidence, or
otherwise so aberrational that it is arbitrary rather
than the result of any perceptible rational approach.
Id. at 904.
III. Discussion
An order of removal issued following proceedings conducted

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in absentia pursuant to 8 U.S.C. § 1229a(b)(5) may be rescinded
“only . . . upon a motion to reopen filed within 180 days after
the date of the order of removal if the alien demonstrates that
the failure to appear was because of exceptional circumstances .
. . .” 8 U.S.C. § 1229a(b)(5)(C)(i). Oliveira admits that his
motion to reopen was subject to the 180-day limit and that his
motion did not meet that time limit. However, he contends the
180-day limit should be equitably tolled because he did not
realize he had been defrauded by Reis, who had claimed to be an
attorney, until August 2003, almost two years after the BIA’s
final decision. This Circuit has not addressed whether equitable
tolling applies to the 180-day filing deadline provided in §
1229a(b)(5)(C)(i). Our sister circuits are not in agreement
regarding whether equitable tolling is applicable to motions to
reopen INS proceedings. Compare Lopez v. INS, 184 F.3d 1097,
1100 (9th Cir. 1999) (finding that the 180-day filing deadline
provided in 8 U.S.C. § 1252b(c)(3), later replaced by §
1229a(b)(5)(C)(i), is subject to equitable tolling) with Anin v.
Reno, 188 F.3d 1273, 1278 (11th Cir. 1999) (holding that the 180-
day statute of limitations provided in 8 U.S.C. § 1252(c)(3),
later replaced by § 1229a(b)(5)(c)(i) is jurisdictional and
mandatory) and Torres v. INS, 144 F.3d 472, 475 (7th Cir. 1998)
(“[T]he judge-made doctrines of estoppel and tolling are not
applied to deadlines for taking appeals, even if the appellant

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(or, as here, the petitioner) was without fault in failing to
appeal within the usually very short time (sometimes as short as
10 days) allowed for filing an appeal.”). However, we need not
decide that issue today because, even if equitable tolling were
applicable, it is not warranted here.
“Equitable tolling is appropriate when, despite all due
diligence, a plaintiff is unable to discover essential
information bearing on the existence of his claim.” Pacheco v.
Rice, 966 F.2d 904, 906-07 (5th Cir. 1992). Thus, equitable
tolling will be warranted only in “rare and exceptional
circumstances.” United States v. English, 400 F.3d 273, 275 (5th
Cir. 2005).
Here, Oliveira has not met his burden of showing rare and
exceptional circumstances that would allow for tolling of the
filing deadline. Oliveira has failed to explain how the actions
of Reis prevented him from filing his motion before the 180-day
deadline provided in § 1229a(b)(5)(C)(i). He has submitted
evidence supporting his allegation that Reis falsely represented
himself as an attorney and fraudulently withheld information from
Oliveira. However, that evidence does not explain Oliveira’s
failure to timely file his motion to reopen because by the time
the BIA affirmed the immigration judge’s decision not to reopen
the proceeding, Oliveira was represented by Finer, counsel of
record, not Reis. The record shows that Finer had access to

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information regarding Oliveira’s immigration proceedings such
that he could have discovered the change of venue motions and
other fraudulent actions taken by Reis. Oliveira has not alleged
that Finer failed to notify Oliveira of the BIA’s November 2002
decision or that Finer was otherwise incompetent or ineffective.
Thus, Oliveira cannot rely on Reis’s actions to explain his
failure to file his motion to reopen in a timely manner.
Furthermore, Oliveira’s actions do not evidence a diligent
pursuit of his rights. He was ordered to appear before an
immigration judge on January 25, 2000, and the record shows that
Oliveira received notice of this order. However, he does not
explain whether he appeared on that date or not. If Oliveira had
attempted to appear before the immigration judge on that date, he
would have discovered, at the very least, that his hearing was
canceled and, possibly, that it was rescheduled and transferred
to Dallas. This certainly would have suggested to Oliveira that
Reis was inappropriately withholding information. Oliveira also
does not explain why he did not seek information regarding his
case between January of 2000 and August 2003 (when he allegedly
discovered Reis’s fraud).
III. Conclusion
Accordingly, we find that the BIA did not abuse its
discretion, and we deny Oliveira’s petition for review.

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