Gulabbhai Raghnathji Mistry v. ATTORNEY GENERAL OF THE UNITED STATES On Petition for Review of an Order of the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 25-2129
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GULABBHAI RAGHNATHJI MISTRY,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________
On Petition for Review of an Order of
the Board of Immigration Appeals
(Agency No. A074-988-585)
Immigration Judge: Annie S. Garcy
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
on March 19, 2026
Before: MATEY, FREEMAN, and CHUNG, Circuit Judges
(Opinion filed: April 22, 2026 )
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OPINION*
_______________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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FREEMAN, Circuit Judge.
Petitioner seeks review of the Board of Immigration Appeals’ (BIA) order
(1) dismissing his appeal of the Immigration Judge’s (IJ) denial of his motion to reopen
removal proceedings and (2) denying his motion to terminate the proceedings. We will
deny the petition.
I
Petitioner attests that he was born in India as Gulabbhai Raghnathji Mistry in
1947. In the 1970s, he twice applied for visas to the United States. Both applications
were rejected due to fraudulent information provided in the first application. He then
changed his name to Dashrath Panchal, applied again, and was approved. After receiving
a second visa under the name Dashrath Panchal, he entered the United States in 1989 and
remained after the visa expired.
In 1995, Petitioner applied to become a lawful permanent resident under the name
Gulabbhai Mistry. During the application process, he admitted in writing to the
Immigration and Naturalization Service (INS)1 that he changed his name to obtain a visa
because his previous applications were denied. The INS twice denied his applications,
determining that he could not prove he was Gulabbhai Mistry. It also deemed Petitioner
inadmissible because he made a willful misrepresentation of material fact to the INS.
1 The INS has since become a part of the Department of Homeland Security. Homeland
Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, § 441 (2002).

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3
In 2005, Petitioner was served with a Notice to Appear charging him as removable
under 8 U.S.C. § 1182(a)(6)(C)(i), which renders a noncitizen inadmissible if he sought
to procure a visa or admission into the United States “by fraud or willfully
misrepresenting a material fact.” An IJ held a hearing in 2007, and Petitioner appeared
with retained counsel. During that hearing, the parties and the IJ agreed that the charge
should be amended to 8 U.S.C. § 1227(a)(1)(A), which makes a noncitizen removable if
he was inadmissible at the time of entry.2 The government made that amendment.
As the factual basis for the charge, the government alleged that Petitioner was
inadmissible at the time of entry because he sought to procure a visa or admission into the
United States by fraud or willful misrepresentation of material fact. Through counsel,
Petitioner admitted all factual allegations and conceded the amended charge. The IJ then
ordered Petitioner removed to India.
Petitioner had 30 days to file a notice of appeal, 8 C.F.R. §§ 1003.1(d)(2)(i)(G),
1003.38(b) (effective July 1, 1996 to Feb. 10, 2022), but he waited nearly twelve years to
file one. In his 2019 notice of appeal, he argued that the appeal deadline should be
equitably tolled because his former counsel provided ineffective assistance. The BIA
summarily dismissed the appeal. It determined Petitioner was not prejudiced by his
former counsel’s performance and had not demonstrated due diligence, so equitable
tolling was unwarranted. Petitioner asked the BIA to reconsider its decision and to
2 8 U.S.C. § 1227(a)(1)(A) states: “Any alien who at the time of entry or adjustment of
status was within one or more of the classes of aliens inadmissible by the law existing at
such time is deportable.”

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4
reopen his appeal. The BIA denied the former motion and dismissed the latter because it
never assumed jurisdiction over the untimely appeal.
In 2020, Petitioner sought our review of the BIA’s decision, and we denied his
petition. We determined the BIA did not abuse its discretion in denying the motion to
reconsider, “particularly . . . where [Petitioner] has admitted the underlying facts of his
inadmissibility.” Mistry v. Att’y Gen., 828 F. App’x 114, 117 (3d Cir. 2020). We also
agreed with the BIA that there was no appeal to reopen, and we noted that Petitioner had
failed to heed the agency’s warning that any motion to reopen must be filed with the IJ.
Id.
After we denied his petition for review, Petitioner filed a motion to reopen with
the IJ. Again, the basis for that motion was ineffective assistance of prior counsel. The
IJ discerned no ineffective assistance and denied the untimely motion. Petitioner
appealed that denial to the BIA. In September 2023, he also filed a separate motion
asking the BIA to terminate (or, alternatively, reopen and terminate) his proceedings so
he could pursue adjustment of status based on a petition filed by his sibling.
The BIA dismissed the appeal and denied the motion to reopen. This petition for
review followed.
II3
A
3 The BIA had jurisdiction pursuant to 8 C.F.R. §§ 1003.1(b)(3) and 1003.2(a). We have
jurisdiction pursuant to 8 U.S.C. § 1252(a).

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We review an agency’s denial of a motion to reopen for abuse of discretion.
Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). Under that standard, we will
uphold the agency’s decision unless it is “arbitrary, irrational, or contrary to law.” Id.
(citation modified).
The BIA did not abuse its discretion when it affirmed the IJ’s denial of Petitioner’s
untimely motion to reopen. Petitioner filed his motion to reopen over thirteen years late,
so he sought equitable tolling based on prior counsel’s ineffective assistance. See
Alzaarir v. Att’y Gen., 639 F.3d 86, 90 (3d Cir. 2011).
To establish ineffective assistance of counsel, he had to show “(1) that he was
prevented from reasonably presenting his case and (2) that substantial prejudice resulted.”
Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007) (citation modified).4 The crux of
his argument is that he did not authorize his prior counsel to admit any fraud or willful
misrepresentation. But counsel’s performance caused no prejudice because Petitioner
himself “admitted the underlying facts of his inadmissibility” years earlier, directly to the
INS. Mistry, 828 F. App’x at 117. He admitted that he used the name Dashrath Panchal
to procure a visa into the United States because he knew he could not procure a visa
under the name Gulabbhai Mistry. So the ineffective assistance claim lacks merit, and
the BIA’s ruling was not an abuse of discretion.
4 We review ineffective assistance of counsel claims de novo when they form the basis
for a motion to reopen. See Fadiga, 488 F.3d at 153.

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B
Petitioner seeks review of the BIA’s order denying his motion to terminate his
proceedings. He suggests that we review the agency’s denial of a motion to terminate for
abuse of discretion, see Aguayo v. Garland, 78 F.4th 1210, 1217 (10th Cir. 2023), and the
government makes no counter-suggestion. We need not decide the precise standard of
review because Petitioner argues that the BIA made a legal error, and, even if he is
correct, any error was harmless.
Petitioner sought termination under Matter of Coronado Acevedo, 28 I. & N. Dec.
648 (A.G. 2022), and the BIA determined that it lacked authority to terminate the
proceedings without first reopening them.5 It recognized that Matter of Coronado
Acevedo says the BIA “may consider and, where appropriate, grant termination . . . of
removal proceedings in certain types of limited circumstances,” id. at 648, but it
concluded that this did not apply to Petitioner’s circumstances. Petitioner argues that this
was legal error. Even if it was, it was harmless.
Matter of Coronado Acevedo gives the BIA discretion to terminate proceedings in
certain circumstances, but it never mandates termination.6 See 28 I. & N. Dec. at 648
(providing that the BIA “may consider” termination “where appropriate”). And the BIA
made clear that it would not exercise discretion to terminate Petitioner’s proceedings.
5 Petitioner does not seek review of the BIA’s order denying his alternative request that it
first reopen his proceedings before terminating them.
6 8 C.F.R. § 1003.1(m)(1)(i) took effect in 2024 and enumerates circumstances under
which termination is mandatory. Petitioner does not argue that his case qualifies for
mandatory termination under that regulation.

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See AR 6 (noting that Petitioner “has not demonstrated a sufficient basis to warrant
reopening and termination of these proceedings”); id. (declining to exercise its authority
to sua sponte reopen because “[b]ecoming potentially eligible for adjustment of status
many years after a final order of removal has been entered does not constitute an
exceptional situation warranting sua sponte reopening of proceedings,” and noting that
the BIA generally will not exercise its discretion to sua sponte reopen “based on equities
that were acquired while a respondent remained illegally in the United States after being
ordered removed”). Accordingly, any potential error does not require a remand to the
BIA. See Li Hua Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d Cir. 2011) (concluding that
remand to the BIA is unnecessary “when it is highly probable that the error did not affect
the outcome of the case”).
* * *
For the foregoing reasons, we will deny the petition for review.

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