Amegashie v. Gonzales , 188 F. App'x 226 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2195
EDEM KOMBLA AMEGASHIE,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A95-886-805)
Submitted: May 31, 2006 Decided: July 6, 2006
Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Mark J. Curley, CURLEY LAW OFFICE, Omaha, Nebraska, for Petitioner.
Rod J. Rosenstein, United States Attorney, Larry D. Adams, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Edem Kombla Amegashie (Amegashie), a native and citizen
of Togo, petitions for review of a Board of Immigration Appeals
(Board) order denying his motion to reopen his removal proceedings
as both time and numerically barred.* We deny the petition for
review.
We review the denial of a motion to reopen for abuse of
discretion. INS v. Doherty, 502 U.S. 314, 323-24 (1992). The
denial of a motion to reopen must be reviewed with extreme
deference, since immigration statutes do not contemplate reopening
and the applicable regulations disfavor motions to reopen. M.A. v.
INS, 899 F.2d 304, 308 (4th Cir. 1990) (en banc). The motion
“shall state the new facts that will be proven at a hearing to be
held if the motion is granted and shall be supported by affidavits
or other evidentiary material.” 8 C.F.R. § 1003.23(b)(3) (2005).
“A motion to reopen will not be granted unless the Immigration
Judge is satisfied that evidence sought to be offered is material
*
We review only the denial of Amegashie’s second motion to
reopen. We lack jurisdiction to review the Board’s prior orders
because Amegashie failed to file a timely petition for review as to
those orders. Amegashie had thirty days from the date of each of
these orders to timely file a petition for review. See 8 U.S.C.
§ 1252(b)(1) (2000). This time period is “jurisdictional in nature
and must be construed with strict fidelity to [its] terms.”
Stone v. INS, 514 U.S. 386, 405 (1995) (alteration added). The
filing of a motion to reopen or reconsider with the Board does not
toll the thirty-day period for seeking review of an underlying
order. Id. at 394.
- 2 -
and was not available and could not have been discovered or
presented at the former hearing.” Id.Amegashie’s second motion to reopen was filed outside the
ninety-day time limitation and as a general rule, “a party may file
only . . . one motion to reopen proceedings.” 8 C.F.R.
§ 1003.23(b)(1) (2005). The Board affirmed the decision of the
immigration judge on July 13, 2004. Amegashie’s first motion to
reopen was denied on January 27, 2005. Amegashie filed his second
motion on September 28, 2005, and thus the immigration judge
correctly found it untimely and beyond the one motion limitation of
§ 1003.23(b)(1).
Amegashie argues he should benefit from equitable tolling
based on ineffective assistance of his former counsel. Several
federal appellate courts have held that the ninety-day time period
for filing a motion to reopen is subject to equitable tolling.
See, e.g., Hernandez- Moran v. Gonzales, 408 F.3d 496, 499-500 (8th
Cir. 2005); Riley v. INS, 310 F.3d 1253, 1257-58 (10th Cir. 2002);
Socop-Gonzalez v. INS, 272 F.3d 1176, 1190-93 (9th Cir. 2001);
Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000). But see Anin v.
Reno, 188 F.3d 1273, 1278 (11th Cir. 1999) (holding that former
statute setting forth time limit for motions to reopen set forth a
“mandatory and jurisdictional” time bar). Even if equitable
tolling applied, however, we conclude Amegashie failed to show he
received ineffective assistance of counsel.
- 3 -
This court has held that “equity must be reserved for
those rare instances where--due to circumstances external to the
party’s own conduct--it would be unconscionable to enforce the
limitation period against the party and gross injustice would
result.” Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000).
The heart of the immigration judge’s negative credibility finding
was based on Amegashie’s failure to provide specific details about
the political persecution directed at him, his demeanor during the
merits hearing, and the fact that Amegashie did not apply for
asylum until one year after he entered the United States. We find
the evidence that Amegashie claims was not properly presented at
the merits hearing would not have altered this result. Moreover,
any alleged errors committed by previous counsel were known to
Amegashie prior to his appeal of the decision of the immigration
judge. Thus, we find that Amegashie is unable to demonstrate the
type of exceptional circumstances under which equitable tolling
applies.
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
- 4 -