NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 09-4700 ___________
HARRY A. PANGEMANAN; MARIYANA SUNARTO, Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________
On Petition for Review of an Order of the Board of Immigration Appeals (Agency Nos. A096-265-808 and A096-265-809) Immigration Judge: Honorable Eugene Pugliese ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) January 11, 2011
Before: BARRY, HARDIMAN and STAPLETON, Circuit Judges
(Opinion filed: January 13, 2011) ___________
OPINION ___________
PER CURIAM
Harry Pangemanan and Mariyana Sunarto, a married couple who are citizens of
Indonesia, petition for review of the Board of Immigration Appeals’ (“BIA”) decision denying their motion to reopen. For the reasons that follow, we will deny the petition for
review.
I
The petitioners’ case has a rather long and complicated procedural history. In
2004, the petitioners received notices to appear, charging them as removable for
overstaying their authorized periods of admission. Before the Immigration Judge (“IJ”),
the petitioners -- represented by Joyce Antila Phipps -- conceded removability. A.R. 521.
Pangemanan sought cancellation of removal, Sunarto sought withholding of removal, and
both petitioners requested voluntary departure. A.R. 521-22. The IJ denied their requests
for cancellation and withholding, but granted voluntary departure. A.R. 518-19.
The petitioners appealed to the BIA, again represented by attorney Phipps. On
February 27, 2006, the BIA dismissed the appeal, agreeing with the IJ that the petitioners
failed to demonstrate entitlement to the relief requested. A.R. 337-39. The petitioners
then retained attorney John Perez, who filed in this Court a timely petition for review.
See Pangemanan v. Att’y Gen., 259 F. App’x 429, 431 (3d Cir. 2007). We dismissed the
petition in part and denied it in part. See id. at 432.
The following month, January 2008, the petitioners retained attorney David
Haghighi to file a motion to reopen their immigration proceedings before the BIA.
However, Houman Varzandeh, an attorney from Haghighi’s office, did not file the
motion to reopen until January 2009. A.R. 335. Although the petitioners, through new
2 counsel, sought to withdraw that motion on February 23, 2009, the BIA failed to
associate the motion to withdraw with the motion to reopen, and erroneously adjudicated
the motion to reopen. In its February 24, 2009, decision, the BIA held that the motion to
reopen was untimely, and that the petitioners’ argument that they satisfied the “changed
country conditions” exception to the 90-day time limit for filing a motion to reopen
lacked merit. A.R. 285.
Then, in March 2009, the petitioners -- through present counsel, Joan Pinnock --
filed with the BIA a new motion to reopen, asserting that attorneys Phipps and Haghighi
provided deficient performance.1 A.R. 124-214. On March 20, 2009, the BIA denied
their motion to reopen. A.R. 115-16. The Board held that the motion was time- and
number-barred, and reasoned that the petitioners failed to make out a colorable deficient
performance claim. With regard to attorney Phipps, the BIA concluded that the
petitioners had not demonstrated due diligence in discovering and seeking to cure the
alleged deficient performance; with regard to attorney Haghighi, the BIA concluded that,
because their first motion to reopen would have been untimely even if it had been filed
when the attorney was retained, the petitioners were not prejudiced by the delay in filing
the motion. Id.
The petitioners filed a motion to reconsider. A.R. 32-35. In a decision dated
1 The petitioners argued that Phipps improperly failed to discuss with them the consequences of voluntary departure, and that she failed to inform them of the BIA’s February 2006 decision. The petitioners argued that Haghighi improperly delayed 3 May 6, 2009, the BIA granted the motion to reconsider and concluded that, because the
petitioners’ January 2009 motion to reopen should have been deemed withdrawn, their
March 2009 motion to reopen was incorrectly held to be number-barred. A.R. 22.
Accordingly, the Board vacated its February 24, 2009, and March 20, 2009, decisions.
Id. However, the BIA again denied the motion to reopen, reasoning that, for the reasons
articulated in its March 20, 2009, decision, the petitioners’ motion to reopen was
untimely, and they failed to make out a colorable deficient performance claim under
Matter of Compean, Bangaly & J-E-C-, 24 I&N Dec. 710 (A.G. 2009) (“Compean I”).
In June 2009, the petitioners filed in this Court a petition for review of the Board’s
May 2009 decision. See Pangemanan v. Att’y Gen., C.A. No. 09-2641. We granted the
Government’s unopposed motion to remand proceedings to the BIA for reconsideration
in light of the Attorney General’s decision in Matter of Compean, Bangaly & J-E-C-, 25
I&N Dec. 1 (A.G. 2009) (“Compean II”), which vacated Compean I and ordered the
Agency to apply the pre-Compean standard for evaluating claims of ineffective assistance
of counsel as grounds for reopening immigration proceedings. C.A. No. 09-2641 (order
filed July 29, 2009).
On remand, the BIA granted reconsideration in light of Compean II. A.R. 4.
However, the Board again reasoned that the motion to reopen was untimely, and that the
petitioners failed to demonstrate due diligence with respect to their claims against
filing their motion to reopen for a year after he was first retained. 4 attorney Phipps or prejudice concerning their claims against attorney Haghighi. Id. at 4-
5. Accordingly, the Board denied the petitioners’ motion to reopen. Id. at 5. The
petitioners filed a timely petition for review of that decision.
II
We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252(a).
We review the BIA’s denial of the motion to reopen for abuse of discretion. See Fadiga
v. Att’y Gen., 488 F.3d 142, 153 (3d Cir. 2007). Under that standard, we will not reverse
the Board’s decision unless “it is arbitrary, irrational, or contrary to law.” Id. (quoting
Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002)).
A “motion to reopen shall be filed within 90 days of the date of entry of a final
administrative order of removal.” INA § 240(c)(7)(C)(i) [8 U.S.C. § 1229a(c)(7)(C)(i)].
However, ineffective assistance of counsel can serve as a basis for equitably tolling the
limitations period in immigration cases. See Mahmood v. Gonzales, 427 F.3d 248, 251
(3d Cir. 2005). To obtain equitable tolling of the limitations period based on ineffective
assistance, the petitioners had to show that competent counsel would have acted
differently and that, absent counsel’s errors, there was a reasonable likelihood that the
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 09-4700 ___________
HARRY A. PANGEMANAN; MARIYANA SUNARTO, Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________
On Petition for Review of an Order of the Board of Immigration Appeals (Agency Nos. A096-265-808 and A096-265-809) Immigration Judge: Honorable Eugene Pugliese ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) January 11, 2011
Before: BARRY, HARDIMAN and STAPLETON, Circuit Judges
(Opinion filed: January 13, 2011) ___________
OPINION ___________
PER CURIAM
Harry Pangemanan and Mariyana Sunarto, a married couple who are citizens of
Indonesia, petition for review of the Board of Immigration Appeals’ (“BIA”) decision denying their motion to reopen. For the reasons that follow, we will deny the petition for
review.
I
The petitioners’ case has a rather long and complicated procedural history. In
2004, the petitioners received notices to appear, charging them as removable for
overstaying their authorized periods of admission. Before the Immigration Judge (“IJ”),
the petitioners -- represented by Joyce Antila Phipps -- conceded removability. A.R. 521.
Pangemanan sought cancellation of removal, Sunarto sought withholding of removal, and
both petitioners requested voluntary departure. A.R. 521-22. The IJ denied their requests
for cancellation and withholding, but granted voluntary departure. A.R. 518-19.
The petitioners appealed to the BIA, again represented by attorney Phipps. On
February 27, 2006, the BIA dismissed the appeal, agreeing with the IJ that the petitioners
failed to demonstrate entitlement to the relief requested. A.R. 337-39. The petitioners
then retained attorney John Perez, who filed in this Court a timely petition for review.
See Pangemanan v. Att’y Gen., 259 F. App’x 429, 431 (3d Cir. 2007). We dismissed the
petition in part and denied it in part. See id. at 432.
The following month, January 2008, the petitioners retained attorney David
Haghighi to file a motion to reopen their immigration proceedings before the BIA.
However, Houman Varzandeh, an attorney from Haghighi’s office, did not file the
motion to reopen until January 2009. A.R. 335. Although the petitioners, through new
2 counsel, sought to withdraw that motion on February 23, 2009, the BIA failed to
associate the motion to withdraw with the motion to reopen, and erroneously adjudicated
the motion to reopen. In its February 24, 2009, decision, the BIA held that the motion to
reopen was untimely, and that the petitioners’ argument that they satisfied the “changed
country conditions” exception to the 90-day time limit for filing a motion to reopen
lacked merit. A.R. 285.
Then, in March 2009, the petitioners -- through present counsel, Joan Pinnock --
filed with the BIA a new motion to reopen, asserting that attorneys Phipps and Haghighi
provided deficient performance.1 A.R. 124-214. On March 20, 2009, the BIA denied
their motion to reopen. A.R. 115-16. The Board held that the motion was time- and
number-barred, and reasoned that the petitioners failed to make out a colorable deficient
performance claim. With regard to attorney Phipps, the BIA concluded that the
petitioners had not demonstrated due diligence in discovering and seeking to cure the
alleged deficient performance; with regard to attorney Haghighi, the BIA concluded that,
because their first motion to reopen would have been untimely even if it had been filed
when the attorney was retained, the petitioners were not prejudiced by the delay in filing
the motion. Id.
The petitioners filed a motion to reconsider. A.R. 32-35. In a decision dated
1 The petitioners argued that Phipps improperly failed to discuss with them the consequences of voluntary departure, and that she failed to inform them of the BIA’s February 2006 decision. The petitioners argued that Haghighi improperly delayed 3 May 6, 2009, the BIA granted the motion to reconsider and concluded that, because the
petitioners’ January 2009 motion to reopen should have been deemed withdrawn, their
March 2009 motion to reopen was incorrectly held to be number-barred. A.R. 22.
Accordingly, the Board vacated its February 24, 2009, and March 20, 2009, decisions.
Id. However, the BIA again denied the motion to reopen, reasoning that, for the reasons
articulated in its March 20, 2009, decision, the petitioners’ motion to reopen was
untimely, and they failed to make out a colorable deficient performance claim under
Matter of Compean, Bangaly & J-E-C-, 24 I&N Dec. 710 (A.G. 2009) (“Compean I”).
In June 2009, the petitioners filed in this Court a petition for review of the Board’s
May 2009 decision. See Pangemanan v. Att’y Gen., C.A. No. 09-2641. We granted the
Government’s unopposed motion to remand proceedings to the BIA for reconsideration
in light of the Attorney General’s decision in Matter of Compean, Bangaly & J-E-C-, 25
I&N Dec. 1 (A.G. 2009) (“Compean II”), which vacated Compean I and ordered the
Agency to apply the pre-Compean standard for evaluating claims of ineffective assistance
of counsel as grounds for reopening immigration proceedings. C.A. No. 09-2641 (order
filed July 29, 2009).
On remand, the BIA granted reconsideration in light of Compean II. A.R. 4.
However, the Board again reasoned that the motion to reopen was untimely, and that the
petitioners failed to demonstrate due diligence with respect to their claims against
filing their motion to reopen for a year after he was first retained. 4 attorney Phipps or prejudice concerning their claims against attorney Haghighi. Id. at 4-
5. Accordingly, the Board denied the petitioners’ motion to reopen. Id. at 5. The
petitioners filed a timely petition for review of that decision.
II
We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252(a).
We review the BIA’s denial of the motion to reopen for abuse of discretion. See Fadiga
v. Att’y Gen., 488 F.3d 142, 153 (3d Cir. 2007). Under that standard, we will not reverse
the Board’s decision unless “it is arbitrary, irrational, or contrary to law.” Id. (quoting
Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002)).
A “motion to reopen shall be filed within 90 days of the date of entry of a final
administrative order of removal.” INA § 240(c)(7)(C)(i) [8 U.S.C. § 1229a(c)(7)(C)(i)].
However, ineffective assistance of counsel can serve as a basis for equitably tolling the
limitations period in immigration cases. See Mahmood v. Gonzales, 427 F.3d 248, 251
(3d Cir. 2005). To obtain equitable tolling of the limitations period based on ineffective
assistance, the petitioners had to show that competent counsel would have acted
differently and that, absent counsel’s errors, there was a reasonable likelihood that the
outcome of their proceedings would have been different. See Fadiga, 488 F.3d at 157,
159-60. They also had to demonstrate that they acted diligently in pursuing their
ineffective assistance claim. See Mahmood, 427 F.3d at 252.
With regard to the petitioners’ ineffective assistance claim against Haghighi, the
5 BIA reasoned that the petitioners failed to show that they were prejudiced by the delay in
filing the motion to reopen because, even if Haghighi had filed the motion as soon as he
was retained, it would nevertheless have been untimely. The record shows that BIA
dismissed the petitioners’ appeal in February 2006, but they did not retain Haghighi until
almost two years later -- well beyond the 90-day limit for filing a motion to reopen.
Although the motion to reopen filed by Haghighi’s office invoked the “changed country
conditions” exception to the 90-day time limit, see INA § 240(c)(7)(C)(ii), the Board held
that the exception did not apply.2 We therefore perceive no abuse of discretion in the
Board’s determination that the petitioners did not demonstrate prejudice resulting from
Haghighi’s representation.
Likewise, the Board did not abuse its discretion in holding that the petitioners
failed to diligently pursue their ineffective assistance claim against attorney Phipps. The
petitioners arguably should have known about any deficiencies in Phipps’s representation
in March 2006, when they retained John Perez as new counsel and filed a petition for
review. Yet they raised no arguments calling Phipps’s performance into question until
March 2009, i.e., three years, three attorneys, and two motions to reopen after they had
worked with Phipps. The petitioners have not shown that the BIA’s decision was
“arbitrary, irrational, or contrary to law.”
2 The propriety of the Board’s conclusion that the first motion to reopen was untimely is not an issue presently before this Court. We note that the petitioners do not challenge in their brief that aspect of the Board’s analysis. 6 Accordingly, we will dismiss the petition for review.