                                                                   NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                          No. 12-1024
                                          ___________

                          DESIDERIO SANTIAGO SAPON-CANIZ,
                                                      Petitioner

                                                v.

                    ATTORNEY GENERAL OF THE UNITED STATES,
                                                            Respondent
                       ____________________________________

                          On Petition for Review of an Order of the
                               Board of Immigration Appeals
                                (Agency No. A078-950-845)
                        Immigration Judge: Honorable Annie S. Garcy
                         ____________________________________

                      Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     October 17, 2012
                Before: SCIRICA, VANASKIE and COWEN, Circuit Judges.

                                    (Filed: October 19, 2012)
                                          ___________

                                  OPINION OF THE COURT
                                       ___________

PER CURIAM.

         Desiderio Santiago Sapon-Caniz, 1 a citizen of Guatemala, entered the United

States near Brownville, Texas, in September 2002. The Government served him in



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    As the parties do, we will refer to the petitioner as Sapon.
person with a notice to appear on October 1, 2002, charging him as removable for being

present in the United States without having been admitted or paroled.

       The procedural history is lengthy, but relevant to the claims Sapon makes, so we

will outline it in some detail. Sapon’s initial hearing was scheduled for October 15, 2002.

On October 8, 2002, attorney Stephen Ramirez filed a notice of appearance in Sapon’s

case and requested a continuance. The request was granted, the hearing date was reset to

October 29, 2002, and notice was sent to Ramirez at his law office. Shortly thereafter,

Sapon was released from custody and provided an address on Lexington Street in

Trenton, New Jersey. On November 1, 2002, the master hearing date was set for April 9,

2003, and notice was sent to Ramirez. On November 12, 2002, Sapon provided a new

address on Anderson Street in Trenton (where his brother lived).

       On April 4, 2003, Ramirez sought to withdraw as counsel. He stated that he had

been unable to contact Sapon. He explained that he had written Sapon at his last known

address on Anderson Street in Trenton to tell him of the hearing date and left telephone

messages for him to call Ramirez’s law office. His letter was not returned, so he assumed

that Sapon knew about the hearing date, but Sapon had not written him or returned any of

his phone calls. Months later, Ramirez was permitted to withdraw from the case.

       On April 9, 2003, the Immigration Court sent Ramirez, at his law office, and

Sapon, at both the Trenton addresses, a notice that his master hearing date had been

postponed until October 22, 2003. On April 28, 2003, attorney Shereen Chen, then

working for the firm then known as Ballard, Spahr, Andrews & Ingersoll, LLP, entered
                                            2
her appearance for Sapon and requested that the venue be changed to Newark, New

Jersey. In doing so, she stated that Sapon was living at the Anderson Street address in

Trenton. The venue was changed and the hearing date reset to October 7, 2003.

      On September 24, 2003, Chen’s legal secretary sent Sapon a letter by certified

mail to the Anderson Street address, informing him that he was scheduled to appear in

Immigration Court on October 7, 2003, and directing him to contact her immediately to

schedule an appointment to speak to Chen. The certified mail return receipt was signed

“Santiago Sapon.” On the day of the hearing, Chen appeared, but Sapon did not. Chen

moved to withdraw as counsel; the Immigration Judge (“IJ”) permitted her to do so. On

the Government’s motion, the IJ held the hearing with Sapon in absentia.

      On October 8, 2003, the IJ issued a written decision in which she found that Sapon

had been personally served with the notice to appear and had been provided with notice

of the hearing (as the notice had been mailed to Sapon’s counsel of record and counsel

had conceded proper service). The IJ sustained the charge of removability based on the

evidence presented by the Government at the hearing and further found that Sapon’s

failure to appear constituted abandonment of any application for relief. She ordered

Sapon removed.

      In January 2010, Sapon, through new counsel, Lymari Casta, moved to rescind the

in absentia removal order and to reopen the proceedings. He argued that he had been

ordered removed without having received a notice to appear or a notice of hearing. He

also contended that if the proceedings were reopened, he would be entitled to cancellation
                                            3
of removal. The IJ denied the motion on February 5, 2010, concluding that notice of the

hearing was properly served on his attorney and that Sapon failed to maintain contact

with her despite her efforts to stay in contact with him. The IJ found that Sapon had

evaded the notice of the hearing. The IJ also held that Sapon provided no evidence that

he was eligible for cancellation of removal.

       On February 17, 2010, Sapon, through attorney Lila Sljivar, a member of the bar

in Michigan, filed a “motion to reopen and reconsider sua sponte.” He again argued that

he had no notice of the 2003 hearing and stated that his motion and its attachments were

filed in order to show that he was eligible for cancellation of removal. The IJ denied the

motion, noting that Sapon presented no new argument or evidence that he did not receive

notice of the hearing through some fault of his attorney. To the extent that Sapon was

making an ineffective assistance of counsel claim, the IJ held that he had not met the

requirements of In re Lozada, 19 I. & N. Dec. 637 (BIA 1988), and had not explained his

failure to do so. The IJ also noted Sapon’s concession in his motion that his failure to

appear at the hearing “could have been because of his evasion of the immigration laws.”

The IJ considered Sapon’s evidence relating to cancellation of removal and concluded

that Sapon was not prima facie eligible for cancellation.

       Sapon, through Sljivar, filed an appeal with the Board of Immigration Appeals

(“BIA”). He again stated that he did not receive notice of his hearing and contended that

he had shown that he was eligible for cancellation, noting in particular his minor United

States citizen child whom, he asserted, would suffer malnutrition if she went to
                                               4
Guatemala with him. The BIA dismissed the appeal. The BIA explained that Sapon

suggested that his failure to appear at his hearing was caused by “exceptional

circumstances” because his counsel did not notify him of the hearing date, but he did not

file a request for rescission of his order within 180 days. The BIA held that Sapon had

not satisfied the Lozada requirements and that there was no reason to toll the 180-day

period. The BIA also agreed with the IJ’s decision not to reopen the proceedings sua

sponte.

       Sapon, still represented by Sljivar, then filed a motion to reopen sua sponte with

the BIA. He sought reopening based on his claims that he had never received the hearing

notice through no fault of his own and that he was entitled to cancellation of removal.

The BIA denied the motion on May 31, 2011. The BIA ruled that Sapon failed to

establish he sought reopening within 180 days based on his failure to appear due to

exceptional circumstances or that he did not receive notice of the hearing through no fault

of his own. The BIA also noted that neither it nor the IJ had previously found any

exceptional situation that would warrant reopening, and that the evidence Sapon

submitted did not change its conclusion.

       In July 2011, represented by new counsel, Sapon filed another motion to reopen.

He alleged that Chen (whom he called his “first attorney”) had provided ineffective

assistance of counsel because she never notified him of the hearing date (he further

asserted that he could not contact her because her telephone had been disconnected). He

also alleged that Sljivar (whom he described as his “second attorney”) was ineffective
                                             5
because she did not interview him in depth about why he came to the United States and

why he feared returning to Guatemala. He contended that her failure to conduct an in-

depth interview kept him unaware of the transfer of his case to New Jersey or the new

hearing date. He also took issue with the fact that his attorney had stated that he had

failed to appear at his hearing because he was evading immigration laws and did not keep

in touch with his attorney or his brother. Sapon also cited Sljivar’s failure to submit

evidence and documents in support of his motion to reopen. He stated that he had filed

an attorney grievance against Sljivar with the New Jersey Ethics Committee. He

contended that he had been unable to file a bar complaint against Chen because he is

unsure of her correct name and address. He characterized the ineffective assistance of

counsel as a due process violation. Sapon further explained that he sought reopening, on

the basis of the alleged ineffectiveness or the BIA’s power to reopen proceedings sua

sponte, in order to file an asylum application based on his experiences as a Quiché Indian

in Guatemala.

       On December 8, 2011, the BIA denied Sapon’s motion. The BIA held that Sapon

failed to meet the requirements of Lozada and In re Assaad, 23 I. & N. Dec. 553 (BIA

2003). The BIA noted that Sapon had submitted a grievance form naming Sljivar, but

concluded that there was no showing that the complaint had been mailed or filed or that

Sljivar has been provided with an opportunity to respond to the allegations. The BIA

found no evidence that Sapon had tried to comply with the Lozada requirements relating

to any other attorney and also pointed out that Chen was permitted to withdraw after she
                                             6
provided proof that Sapon had failed to maintain contact with her. Accordingly, the BIA

concluded that the allegations of ineffective assistance of counsel were without

foundation. The BIA also ruled that neither the new evidence (including the asylum

application and the grievance form) nor the evidence submitted previously showed an

exceptional situation warranting sua sponte reopening.

       Sapon appeals. We have jurisdiction over his petition pursuant to 8 U.S.C.

§ 1252(a)(1). 2 Our review of the BIA’s decision to deny a motion to reopen is under a

highly deferential abuse of discretion standard. See Guo v. Ashcroft, 386 F. 3d 556, 562

(3d Cir. 2004). The discretionary decision is not disturbed unless it is found to be

arbitrary, irrational, or contrary to law. See id.

       We will deny the petition for review because we cannot say the BIA’s decision

was arbitrary, irrational, or contrary to law. An in abstenia final order of removal may be

rescinded upon a motion to reopen filed within 180 days of the date of the order if the

alien demonstrates exceptional circumstances caused the failure to appear. 8 U.S.C.

§ 1229a(b)(5)(C)(i). The time limit for filing a motion to reopen is subject to equitable

tolling. See Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir. 2005). Ineffective assistance

of counsel can serve as a basis for equitable tolling if substantiated and accompanied by a

showing of due diligence. See Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir. 2005).



2
  We note, however, that our review is limited to the BIA’s latest decision in Sapon’s
case. See Stone v. INS, 514 U.S. 386, 405 (1995); Nocon v. INS, 789 F.2d 1028, 1033
(3d Cir. 1986).
                                             7
Due diligence must be exercised over the entire period for which tolling is desired. See

Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008). “This includes both the period of

time before the ineffective assistance of counsel was or should have been discovered and

the period from that point until the motion to reopen is filed.” Id.

       To rely on an ineffective assistance of counsel claim to toll a time limit, the BIA

requires an alien to comply with the procedural requirements of In re Lozada, a

requirement we have held to be reasonable. See Lu v. Ashcroft, 259 F.3d 127, 132 (3d

Cir. 2001). The BIA requires an affidavit detailing the relevant facts; a response from

counsel to the affidavit (or a statement of counsel’s failure or refusal to respond); and

documentation demonstrating that a disciplinary complaint against counsel was filed with

the appropriate authority. See id. 259 F.3d at 132-34. The failure to file a disciplinary

complaint “is not fatal if a petitioner provides a reasonable explanation for his or her

decision.” Id. at 134.

       As the BIA concluded, Sapon did not comply with the Lozada requirements. He

made no showing that he attempted to comply with them against any of his attorneys

except for Sljivar. From the evidence he presented, his attempt was deficient. He

provided no response from Sljivar (nor any statement of her failure to respond).

Although he provided a grievance form, there was no showing that the form had been

mailed or filed. Furthermore, the grievance form was directed to the New Jersey Ethics

Committee; Sljivar, when she entered her appearance for Sapon, identified herself as a

member of the bar in Michigan. Sapon also provided an excuse for not filing a complaint
                                              8
against Chen; he stated that he could not remember her full name. However, her full

name is in the record; it is likely also available from the large law firm that employed her

at the time she represented Sapon.

       We note that Sapon argues that he need not have complied with Lozada because

the ineffectiveness of his counsel is apparent from the record. However, the main basis

for his ineffectiveness claim against Chen (that she did not stay in contact with him to

notify him of the hearing date) is not supported by the record. Before being permitted to

withdraw, Chen provided evidence that Sapon did not stay in touch with her despite her

efforts to contact him. (Notably, Sapon’s first attorney was permitted to withdraw

because of a similar experience with Sapon.) Sapon also urges that Sljivar’s

ineffectiveness is obvious because she conceded that he had evaded the immigration laws

and had not kept in touch with his attorney or brother and because she did not better

support the motion to reopen and seek cancellation. However, Sljivar may have been

hard pressed to challenge the IJ’s finding and the evidence that Sapon had evaded the

immigration laws. Furthermore, her failure to support the motion and cancellation

request could have been because there was no evidence to support it. In short, this is not

a case in which the ineffectiveness is apparent from the record. Accordingly, the BIA’s

decision not to reopen the case because of Sapon’s failure to comply with the Lozada

requirements was not unreasonable. The failure also served as a bar to Sapon’s claim that

the ineffectiveness was a due process violation under the Fifth Amendment. See Fadiga

v. Attorney Gen. of the United States, 488 F.3d 142, 155 (3d Cir. 2007).
                                             9
       We have considered Sapon’s other arguments and conclude that they are without

merit. Briefly stated, although we have jurisdiction to review the BIA’s ruling on

whether Sapon presented an “exceptional situation” (or, stated otherwise, whether Sapon

has established a prima facie case for sua sponte relief), see Cruz v. Attorney Gen. of the

United States, 452 F.3d 240, 250 (3d Cir. 2006), unlike in Cruz, there is no evidence that

the BIA was ignoring a general policy it has established, see id. at 246 n.3 & 249-50. Cf.

Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003). Also, we reject Sapon’s

argument that the BIA failed to apply its own precedent, namely In re M-R-A-, 24 I. & N.

Dec. 665 (BIA 2008). Given the facts of this case, In re M-R-A- is inapplicable.

       For these reasons, we conclude that the BIA committed no error in denying

Sapon’s latest motion to reopen, and we will deny the petition for review.




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