Rita Onyekonwu v. Attorney General United States

R
                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 20-1441
                                     ______________

                                  RITA ONYEKONWU,
                                           Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA

                                     ______________

                          On Petition for Review of an Order of
                           the Board of Immigration Appeals
                              (Agency No. A077-027-423)
                         Immigration Judge: Arya S. Ranasinghe
                                    ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 December 15, 2020
                                  ______________

       Before: GREENAWAY, JR., SHWARTZ, and FUENTES, Circuit Judges.

                                 (Filed: January 11, 2021)

                                     ______________

                                        OPINION
                                     ______________

SHWARTZ, Circuit Judge.



       
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
       Rita Onyekonwu petitions for review of an order from the Board of Immigration

Appeals (“BIA”), which affirmed the Immigration Judge’s (“IJ”) order denying

Onyekonwu’s third motion to reopen and rescind her 2003 in absentia removal order.

Because the BIA did not abuse its discretion, we will dismiss in part and deny in part the

petition.

                                             I

       Onyekonwu is a citizen of Nigeria who has lived in the United States since 1979.

In 1997, Onyekonwu married a United States citizen and filed to adjust her status to legal

permanent resident. However, Onyekonwu’s spouse subsequently withdrew his support

for her petition and stated that they married fraudulently for immigration purposes.

Thereafter, Onyekonwu was placed in removal proceedings, and she retained pro bono

counsel, Joyce Phipps, to represent her. Onyekonwu filed applications for asylum,

withholding of removal, and protection under the Convention Against Torture (“CAT”),

alleging a fear of persecution in Nigeria under Sharia law because she had a child out of

wedlock. However, both Onyekonwu and Phipps failed to appear for a July 2, 2003

hearing before an IJ, and Onyekonwu was ordered removed in absentia.

       In 2010, Onyekonwu, still represented by Phipps, filed her first motion to reopen,

claiming that she was unable to attend the July 2003 hearing due to her and her son’s

medical conditions. The IJ denied the motion because it did not include a sworn

statement from Onyekonwu explaining why she failed to appear for her hearing.

       In 2018, Onyekonwu retained new counsel, Alina Kaganovsky, who filed a second

motion to reopen—this time contending that Onyekonwu was eligible for asylum based

                                            2
on changed country conditions in Nigeria. Specifically, Onyekonwu asserted that

violence towards Christians was escalating in Nigeria, and that she feared persecution as

a devout Christian and minister. The IJ denied this motion because it was numerically

barred and untimely, lacked a sworn statement from Onyekonwu, and failed to establish

changed country conditions. Onyekonwu did not appeal, and she now contends that

Kaganovsky never told her that she could.

       In 2019, Onyekonwu retained her present counsel, and she filed her third motion

to reopen, arguing that rescission of the removal order was appropriate because her

previous attorneys had provided ineffective assistance of counsel.1 Specifically,

Onyekonwu alleged that (1) Phipps was ineffective for misinforming Onyekonwu of the

date of the hearing, as allegedly corroborated by a “recently discovered” copy of a

telephone message that she left for Phipps in 2003, A.R. 66; and (2) Kaganovsky was

ineffective for failing to attach a sworn statement from Onyekonwu, for failing to include

a cancellation of removal application, and for failing to inform her that she had a right to

appeal the IJ’s decision. The IJ denied Onyekonwu’s motion to reopen, and the BIA

affirmed, holding that (1) the IJ correctly found that Onyekonwu’s motion was time-

barred, (2) ineffective assistance of counsel was not a basis for equitable tolling because

Onyekonwu did not act with due diligence during the entire period for which she sought



       1
        It is immaterial that the Government did not oppose Onyekonwu’s motion to
reopen because the IJ and the BIA still have a statutory duty to evaluate the motion, see 8
U.S.C. § 1229a(b)(5)(C)(i), (c)(7); 8 C.F.R. § 1003.23(b)(3), and it was ultimately
Onyekonwu’s burden to show that she was entitled to have her case reopened, see
Mahmood v. Gonzales, 

427 F.3d 248

, 252 (3d Cir. 2005).
                                              3
tolling, (3) Onyekonwu did not fulfill the requirements for pursuing an ineffective

assistance of counsel claim, and (4) there were no exceptional circumstances to justify

sua sponte reopening. Onyekonwu petitions for review.

                                             II2

       Under 8 U.S.C. § 1229a(b)(5)(A), a noncitizen who receives written notice of her

removal hearing but fails to appear shall be ordered removed in absentia. This order may

be rescinded, however, “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.”

Id. § 1229a(b)(5)(C)(i). Here,

Onyekonwu’s third motion to

reopen and rescind comes nearly sixteen years after her in absentia removal order—well

beyond the 180-day deadline.3

       However, the 180-day deadline is subject to equitable tolling, Borges v. Gonzales,

402 F.3d 398

, 406 (3d Cir. 2005), and one such basis for tolling is ineffective assistance

of counsel, Mahmood v. Gonzales, 

427 F.3d 248

, 251 (3d Cir. 2005). To toll the

deadline for ineffective assistance of counsel, a petitioner’s allegations must be



       2
          The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b), 1003.2(c). We have
jurisdiction under 8 U.S.C. § 1252(a). We review the BIA’s decision to deny a motion to
reopen for abuse of discretion. Liu v. Att’y Gen., 

555 F.3d 145

, 148 (3d Cir. 2009). We
review the BIA’s factual determinations under the substantial evidence standard, such
that “the BIA’s finding must be upheld unless the evidence not only supports a contrary
conclusion, but compels it.” Abdille v. Ashcroft, 

242 F.3d 477

, 483-84 (3d Cir. 2001).
        3
          As this is Onyekonwu’s third motion to reopen, it is also numerically barred.
See 8 U.S.C. § 1229a(c)(7)(A) (“An alien may file one motion to reopen proceedings
under this section . . . .”). This limit on the number of such motions that may be filed is
subject to certain exceptions, such as a showing of changed country conditions. See In re
J-G-, 26 I. & N. Dec. 161, 168 (B.I.A. 2013).
                                             4
“substantiated and accompanied by a showing of due diligence” by the petitioner.

Alzaarir v. Att’y Gen., 

639 F.3d 86

, 90 (3d Cir. 2011) (per curiam). Additionally, a

petitioner must comply with the following three procedural requirements, known as the

Lozada requirements:

       [T]he allegedly aggrieved person must (1) provide an affidavit attesting to
       the relevant facts, (2) inform former counsel of the allegations and allow
       him an opportunity to respond, and (3) “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 disciplinary authorities regarding such representation, and if
       not, why not.”

Rranci v. Att’y Gen., 

540 F.3d 165

, 172 (3d Cir. 2008) (quoting In re Lozada, 19 I. & N.

Dec. 637, 639 (B.I.A. 1988)).

       Onyekonwu has not shown diligence and did not satisfy two of the Lozada

requirements. First, Onyekonwu has failed to “come forward with evidence that [s]he

acted with [due] diligence,” 

Mahmood, 427 F.3d at 252

, “over the entire period for which

tolling is desired,” 

Alzaarir, 639 F.3d at 90

. As noted, about sixteen years have passed

since the in absentia removal order was issued against her. Yet, Onyekonwu does not

explain what efforts she took to diligently pursue her case concerning Phipps’ conduct

from 2003, when the removal order was entered, through 2010, when she filed her first

motion to reopen, or between 2010 and 2019, the time between the ruling on her first

motion to reopen and the filing of her second motion to reopen. Onyekonwu contends

that she only recently discovered a document confirming a message she left for Phipps in

2003 blaming counsel for her missing the hearing. This assertion conflicts with the

reason she provided in her 2010 motion for not appearing, namely health issues she and

                                              5
her son faced. Furthermore, this purportedly new evidence works against Onyekonwu

because it demonstrates that she has been aware of Phipps’ alleged ineffective assistance

since 2003 but did not raise this issue for sixteen years. In other words, the document

itself may have been “recently discovered,” A.R. 66, but Onyekonwu knew in 2003 that

she held her counsel responsible for her missing the hearing date. Thus, because

Onyekonwu has not explained why she did not pursue these claims concerning Phipps

during these long gaps, and, as nothing new has occurred to excuse her prior inaction on

her ineffective assistance claim, the BIA did not abuse its discretion in concluding that

Onyekonwu did not exercise the diligence necessary to justify equitable tolling.

       Second, with respect to her claims about both Phipps and Kaganovsky,

Onyekonwu failed to satisfy the second and third Lozada requirements. Onyekonwu has

(1) not informed her previous attorneys of their alleged ineffective assistance and thus

has not given them a chance to respond to the allegations; and (2) has not filed a

complaint with the relevant authorities regarding her attorneys’ conduct nor adequately

explained her reasons for this omission. See Lozada, 19 I. & N. Dec. at 639.

Onyekonwu contends that she should be excused from complying with these

requirements. We do not apply a “strict, formulaic interpretation of Lozada,” and thus

we forgive noncompliance if a petitioner can “provide a reasonable explanation for” her

failure to comply. Xu Yong Lu v. Ashcroft, 

259 F.3d 127

, 133 (3d Cir. 2001).4


       4
        Onyekonwu also contends that she need not follow the Lozada requirements
because the “face of the record shows a clear and obvious case of ineffective assistance
of counsel.” Castillo-Perez v. I.N.S., 

212 F.3d 518

, 526 (9th Cir. 2000). Even assuming
that were the rule in this Circuit, it is not clear from the face of the record that
                                             6
       Here, Onyekonwu has not sufficiently explained why she failed to notify her

attorneys for their claimed ineffectiveness, nor has she provided a reasonable explanation

for not notifying the disciplinary authorities. She states that she is “currently unable to

[file an ethics complaint] because [she does] not have the money, time, or health to be in

a position to file such a complaint, especially because [she faces] imminent removal.”

J.A. 16, 19. As noted, however, the first instance of alleged ineffective assistance

occurred in 2003, giving Onyekonwu well over a decade to file a complaint against

Phipps. Nor has Onyekonwu explained what fees she would need to pay to notify these

attorneys or the disciplinary authorities of the alleged deficiencies. Thus, Onyekonwu’s

explanation for not filing a complaint is not “reasonable” under 

Lu. 259 F.3d at 133

.5

       Onyekonwu also notes that “Phipps worked on [her] case for free,” so she was

“conflicted about getting [Phipps] in trouble despite the mistakes she made [in the] case.”




Onyekonwu’s attorneys provided ineffective assistance because there is no evidence from
which we can automatically conclude that their conduct fell below the standards for
competent representation. See

id. (“While the requirements

of Lozada are generally
reasonable, they need not be rigidly enforced where their purpose is fully served by other
means. Lozada is intended to ensure both that an adequate factual basis exists in the
record for an ineffectiveness complaint and that the complaint is a legitimate and
substantial one.” (internal citation omitted)). For example, Onyekonwu provides
conflicting reasons why she did not appear at the July 2003 hearing. In addition, there
could be sound reasons why Kaganovsky did not file an appeal of the IJ’s ruling, such as
a view that there had been no changed country conditions that would support reopening
given the available evidence. Under these circumstances, Onyekonwu’s decision not to
notify her previous counsel of her claims that they provided ineffective assistance
deprived the IJ, the BIA, and this Court of a basis to evaluate those claims.
       5
         Although the BIA should have “detail[ed] its reasons for rejecting
[Onyekonwu’s] explanation,” 

Lu, 259 F.3d at 134

n.4, we cannot say the BIA abused its
discretion, particularly because Onyekonwu provided no evidence of any effort to comply
with the second Lozada requirement.
                                              7
J.A. 16. While a kind sentiment, “[a]n attorney’s obligation to [her] client is not

diminished by the pro bono nature of [her] representation; hence, we cannot sanction

[Onyekonwu’s] failure to lodge a complaint simply because [Phipps] was not paid.” 

Lu, 259 F.3d at 135

. Thus, the BIA did not abuse its discretion in concluding that

Onyekonwu did not sufficiently comply with the Lozada requirements.6

                                                 III

       For the foregoing reasons, we will dismiss in part and deny in part Onyekonwu’s

petition for review.




       6
         Furthermore, the BIA applied the correct legal standards, and its conclusion that
Onyekonwu failed to satisfy the Lozada requirements is supported by substantial
evidence. Thus, contrary to Onyekonwu’s assertion, the BIA did not fail to
“meaningfully consider[] the evidence and arguments [she] presented.” Zhu v. Att’y
Gen., 

744 F.3d 268

, 272 (3d Cir. 2014).
        The BIA also declined to invoke its sua sponte authority to reopen. We lack
jurisdiction to review that decision. Calle-Vujiles v. Ashcroft, 

320 F.3d 472

, 474 (3d Cir.
2003).
                                             8

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