08-2990 Naseem Anant Vithlani v. ATTORNEY GENERAL OF THE UNITED STATES On Petition for Review of an Order of the…

IMG-014 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 07-4623 & 08-2990
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NASEEM ANANT VITHLANI; TWINKLE ANANT VITHLANI,
a minor, by and through, her Guardian Ad Litem,
NASEEM ANANT VITHLANI, her Mother,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A77-713-130 & A77-713-132)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 12, 2009
Before: FUENTES, ROTH and VAN ANTWERPEN, Circuit Judges
(Opinion filed : January 12, 2010 )
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OPINION
___________
PER CURIAM
Petitioners, Naseem and Twinkle Vithlani, seek review of two orders of the Board

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of Immigration Appeals (“BIA”), one denying their motion to reopen and the other
denying their motion for reconsideration. For the reasons that follow, we will deny their
petition for review.
Naseem Vithlani, a native and citizen of India, entered the United States in
November 1998 on an H1-B visa. Her husband Anant and daughter Twinkle followed on
H4 visas in February 1999. In 1999, Naseem filed an affirmative application for asylum,
withholding of removal and relief under the Convention Against Torture (“CAT”), listing
her husband and daughter as derivative beneficiaries. (A.R. 603.) In it, she alleged that
she and her husband had been persecuted by members of her husband’s family based on
their interfaith marriage. (A.R. 606.) On September 4, 2001, they were served with
Notices to Appear, alleging that they had remained in the United States without
authorization beyond the time period permitted by their visas, which charges they
conceded. (A.R. 624.)
On August 8, 2002, the IJ denied their requests for relief, concluding that they had
failed to establish that they suffered past persecution or had a well-founded fear of future
persecution. (A.R. 398-404.) On January 16, 2004, the BIA issued an opinion agreeing
with the IJ and dismissing their appeal. (A.R. 156-57.) Petitioners did not file a petition
for review in this Court at that time. They allege that, following the issuance of the BIA’s
decision, their attorney, Ana Juneau, told them that there was nothing else they could do
with respect to their case and that their options were either to go back to India or to

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remain in the United States illegally. They claim that they first learned that they could
have filed a petition for review in this Court on December 30, 2006, after Anant was
taken into custody by Immigration and Customs Enforcement agents based on a warrant
for his deportation stemming from the BIA’s final order of removal.
Naseem then retained the services of a second attorney, Rahul Manchanda, who
assigned an associate at his firm, Shahla Khan, to represent the Vithlanis. On January 22,
2007, they filed a motion to reopen with the BIA, alleging that prior counsel, Ms. Juneau,
had been ineffective in her representation of them throughout the removal proceedings
and in failing to inform them of their right to appeal. (A.R. 287-307.) They claimed that
they first learned of their counsel’s ineffectiveness on or about December 30, 2006, and
that their motion to reopen was filed within 90 days of that discovery. On March 26,
2007, the BIA denied the motion based on petitioners’ failure to comply with the
requirements for alleging ineffective assistance of counsel as set out in Matter of Assad,
23 I. & N. Dec. 553 (BIA 2003), and Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
(A.R. 175-76.) The BIA further concluded that petitioners had not exercised due
diligence in pursing their claims, as they failed to explain the delay between the alleged
ineffective assistance of counsel from 2002 to 2004 and the filing of their motion in 2007.
(Id.) Petitioners did not seek review of that decision.
Through present counsel, petitioners filed a second motion to reopen on September
10, 2007, alleging that attorneys Manchanda and Khan provided ineffective assistance in

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While the letter was dated February 25, 2005, all parties agree that it was written in1
2007. (A.R. 55, n.2.)
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filing their first motion to reopen. (A.R. 93-145.) They claimed that they first learned of
this ineffectiveness on or about August 1, 2007, more than four months after the BIA
denied their first motion to reopen. The BIA denied the second motion on November 13,
2007 as time- and number-barred and concluded that petitioners were not entitled to
equitable tolling. (A.R. 54-55.) The BIA held that petitioners had failed to explain the
steps, if any, that they took to investigate and assert their claims during that time and,
additionally, that they had failed to show how the conduct of the attorneys who
represented them in connection with their first motion to reopen prejudiced their case, as
there was nothing those attorneys could have done to alter the fact that petitioners failed
to exercise due diligence in pursuing their claims for relief and investigating any potential
recourse against their first attorney. (A.R. 55.) As the BIA noted, petitioners were
present at the 2002 hearing when the IJ rendered his decision, noting all of the
inadequacies in their case. In their 2007 letter to Attorney Juneau, petitioners detailed1
six allegations of misconduct which occurred during the removal proceedings. (A.R.
249-250.) Based on this sequence of events, the BIA concluded: “The respondents have
simply failed to explain why they were completely unaware of any problems with their
2002 removal proceedings until December 30, 2006, more than four years after their
removal hearing and nearly three years after their appeal was dismissed. They have failed

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to show that they took any steps to address these issues or otherwise investigate and assert
their claims.” (A.R. 55.)
Petitioners then filed their first petition for review on December 10, 2007, which
was docketed at C.A. No. 07-4623. Petitioners concurrently filed a motion for
reconsideration pursuant to 8 C.F.R. § 1003.2(b), which the BIA denied on June 13, 2008.
(A.R. 7.) On June 27, 2008, petitioners filed the petition for review docketed at C.A. No.
08-2990. These petitions for review were consolidated and we have jurisdiction over
both of them pursuant to 8 U.S.C. § 1252.
Petitioners challenge the BIA’s denial of their second motion to reopen and the
denial of their motion for reconsideration of the denial of their second motion to reopen.
The second motion to reopen was premised on the ineffectiveness of the attorneys who
perfected the first motion to reopen. We review the BIA’s denial of a motion to reopen or
for reconsideration for an abuse of discretion, under which standard we will uphold the
Board’s decision unless it was arbitrary, irrational or contrary to law. See Sevoian v.
Ashcroft, 290 F.3d 166, 170, 174 (3d Cir. 2002).
The BIA concluded that petitioners were not entitled to equitable tolling under
Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir. 2005). In Mahmood, this Court
confirmed that the time for filing a motion to reopen is subject to equitable tolling and
that ineffective assistance of counsel can provide the basis for such tolling. See id. at
251. However, this Court further held that Mahmood was not entitled to equitable tolling

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as he had not exercised the requisite diligence in pursuing his claims. See id. at 252. The
BIA here reached a similar conclusion. Assuming Attorney Juneau did provide
ineffective assistance, the BIA concluded that petitioners failed to diligently pursue any
relief in the period between the BIA’s entry of a final order of removal and Anant’s
deportation. Having reached this determination, the BIA concluded that even if their first
motion to reopen had been properly prepared by Attorneys Manchanda and Khan, they
could not have taken advantage of equitable tolling due to this lack of diligence and
therefore, they had not established prejudice attributable to the deficient preparation of
the second motion to reopen. See Fadiga v. Attorney General, 488 F.3d 142, 157 (3d Cir.
2007) (explaining that once the BIA determines that the Lozada requirements are met, it
proceeds to assess whether competent counsel would have acted differently and whether
the petitioner was prejudiced by counsel’s actions).
Petitioners contest the BIA’s diligence determination, arguing that it is the date of
discovery of the ineffective assistance, not the date of the ineffective assistance itself, that
“marks the beginning of the timeline for a finding that the alien has exercised due
diligence in pursuing her claim.” (Pet’r Reply Br., 3.) “[I]n order to equitably toll the
filing deadline for a motion to reopen based on ineffective assistance of counsel, an alien
must demonstrate that he or she has exercised due diligence during the entire period he or
she seeks to toll. 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

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motion to reopen was filed.” Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008). As
the BIA made clear, petitioners set forth six grounds on which they claimed Attorney
Juneau’s representation during the initial removal proceedings was deficient. While they
may not have been aware of the legal concept of “ineffective assistance of counsel” until
meeting with Attorneys Manchanda and Khan at the end of 2006, they were aware of all
of the facts underlying their claim for the preceding four years. The fact that they waited
until Anant was taken into custody in 2006 to seek a second opinion does not render them
unaware of the basis for their claim until that time. As the BIA’s decision was not
arbitrary, irrational or contrary to law, we conclude that it acted within its discretion in
denying petitioners’ second motion to reopen.
With respect to their motion for reconsideration, the BIA held that rather than
specifying any errors of fact or law in its previous decision as required by 8 C.F.R.
§ 1003.2(b), the motion essentially restated all of the arguments previously made. (A.R.
7.) We agree that, under these circumstances, the BIA properly denied the motion for
reconsideration. See Nocon v. I.N.S., 789 F.2d 1028, 1033 (3d Cir. 1986) (upholding
denial of motion for reconsideration as proper exercise of the BIA’s discretion where
petitioner failed to meet regulatory requirements).
Finally, for the first time in their opening brief, petitioners raise a claim alleging
that they should not have been placed into removal proceedings in 2001 while they were
still residing legally in the United States. As the Government argues, this issue is both

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waived and unexhausted. See 8 U.S.C. § 1252(d)(1); Abdulrahman v. Ashcroft, 330 F.3d
587, 594-95 (3d Cir. 2003). Accordingly, we will not address it any further.
Based on the foregoing, we will deny the consolidated petitions for review.

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