Ramnarain Joeglal; Randish Joeglal; Rishi Joeglal; Lelita Joeglal 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NOT PRECEDENTIAL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
No. 08-3525
RAMNARAIN JOEGLAL; RANDISH JOEGLAL;
RISHI JOEGLAL; LELITA JOEGLAL,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A73-050-262, A73-050-263, A73-050-264, & A73-050-265)
Immigration Judge: Honorable Daniel Meisner
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 7, 2009
Before: AMBRO, FISHER and JORDAN, Circuit Judges
Opinion filed: October 21, 2009
OPINION
PER CURIAM
On December 28, 2004, an Immigration Judge (“IJ”) denied the application for
asylum, withholding, and protection under the Convention Against Torture filed by
Ramnarain Joeglal, his wife, Lelita, and their children, Randish and Rishi, through their

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former attorney, Jonathan Saint-Preux. The petitioners, citizens of Suriname who came to
the United States in 1993, were granted voluntary departure. They did not appeal the IJ’s
decision. However, six months later, on June 29, 2005, motions to reopen were submitted
to the IJ. The IJ denied the motions in August and September 2005. An appeal to the
Board of Immigration Appeals (“BIA”) followed; the BIA summarily affirmed the IJ’s
decisions.
On June 5, 2008, the petitioners, through new counsel, Karamvir Dahiya, filed a
motion to reopen and a request for a stay of removal with the BIA. That same day, the
BIA granted a stay of removal to Ramnarain and his son, Randish. Dahiya filed a
supplement on July 10, 2008, but then the Joeglals, through another attorney, Darryl L.
Wynn, filed another motion to reopen.
In the motion to reopen filed through Dahiya, the petitioners alleged that their
former attorney, Saint-Preux, had provided ineffective assistance of counsel. They
claimed that Saint-Preux filed an asylum claim for them after the IJ advised him to look
into some sort of hardship relief, but he did not appear in court on the day of petitioners’
hearing. After the IJ and the petitioners waited for more than an hour, another attorney
from Saint-Preux’s office appeared on his behalf. She had no knowledge of the
petitioners’ claims. The IJ threatened that the petitioners would be deported unless they
withdrew their asylum claim and sought voluntary departure. Without consulting with the
petitioners, Saint-Preux’s substitute accepted voluntary departure on their behalf. The

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petitioners did not understand voluntary departure or its consequences. Meanwhile,
Saint-Preux continued to charge them for his services and filed a labor certification on
their behalf. Without their knowledge, according to Dahiya, Saint-Preux filed the 2005
motions to reopen and appeals with the BIA. Dahiya noted that Saint-Preux was serving
a term of imprisonment for fraud and had been or would be disbarred. In the motion to
reopen, the petitioners, through Dahiya, also argued that the IJ’s original order allowing
voluntary departure did not properly inform the petitioners about the consequence of
failing to depart so enforcing the order would violate their right to due process. They
sought a new hearing.
In the supplement Dahiya filed for petitioners, he elaborated that the IJ threatened
petitioners with jail if they did not accept voluntary departure. He modified the facts to
note that Ramnarain Joeglal, through Saint-Preux, filed the June 29, 2005 motion to
reopen. He repeated his claims of ineffective assistance of counsel and due process
violations. Addressing a requirement of Matter of Lozada, 19 I. & N. Dec. 637 (BIA
1988), Dahiya conceded that the petitioners had not filed a complaint against Saint-Preux,
but argued that there was no need to do so because Saint-Preux was already serving a
sentence for his crimes and was disbarred and not subject to the imposition of sanctions.
In light of Saint-Preux’s conduct, the petitioners asked to be excused from the time and
number limitations on motions to reopen. In the supplement, the petitioners revealed the
basis for their asylum claim. Conceding that their asylum application was

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“unprofessionally prepared and contains glaring omissions in the kind of factual
narratives what is customarily expected in a professionally prepared applications” [sic],
the petitioners noted that it contained “the germ of a claim for political persecution,”
namely “I was constantly threatened that if I did not work with the ruling party, I and my
family would be burned out of my house.” They also pointed to this statement: “Because
I refused to drive for them I was detained and questioned on numerous occasions until I
left the country.” They also argued that the IJ was not neutral or impartial, and acted
improperly in deciding the asylum claim was bogus before any argument was presented
and in threatening that petitioners choose jail or the withdrawal of the asylum claim.
In the motion to reopen filed through Wynn, petitioners similarly asked to reopen
the proceedings because of the ineffective assistance of Saint-Preux. They outlined their
allegations against Saint-Preux: he arrived close to four hours late to Ramnarain Joeglal’s
asylum interview, submitted documents late to the IJ, never appeared at the Joeglals’
hearing, sent a substitute who could not advise them and did not explain to them the
meaning or consequences of voluntary departure, and provided the Joeglals with an
incomplete application for temporary residence status for which they did not qualify.
Wynn stated that the petitioners complied with Matter of Lozada by sending Saint-Preux
a statement of his allegations of ineffective assistance of counsel and, after receiving no
response, by filing a grievance complaint with the District Ethics Committee Secretary in
Jersey City, New Jersey. The petitioners again asked that their case be reopened for a

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rehearing on their asylum claims.
On August 1, 2008, the BIA denied both motions as time- and number-barred and
vacated the stays of removal. The BIA noted that the petitioners each presented second
and third motions to reopen more than three and a half years after the final administrative
decision. The BIA acknowledged that ineffective assistance of counsel can provide a
basis for equitable tolling, but concluded that the petitioners had not been diligent in
presenting the ineffectiveness claim. The BIA noted that the petitioners knew or should
have known of Saint-Preux’s ineffectiveness on December 28, 2004, the date when he did
not appear for their merits hearing (his failure to appear being one reason the petitioners
deemed Saint-Preux ineffective).
The BIA considered the petitioners’ arguments that they exercised due diligence,
including contacting no fewer than eight attorneys and other legal service providers, plus
various elected officials. However, the BIA noted that Ramnarain Joeglal submitted an
affidavit with the Wynn motion to reopen in which Joeglal averred that he retained
Dahiya in May 2007. Accordingly, the BIA calculated that even if the time limit were
tolled until May 31, 2007 (the last date the Joeglals could have retained Dahiya consistent
with the affidavit), the petitioners still failed to timely file their motion to reopen within
90 days or on or before August 29, 2007.
The BIA also considered whether the petitioners were alleging ineffective
assistance against Dahiya (or any of the other legal providers they consulted), but rejected

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any such claim because they did not comply with the requirements of Matter of Lozada
(and did not even identify some of the other attorneys they consulted).
The BIA also assessed whether the petitioners were trying to reapply for asylum
but found that the petitioners did not submit any new application or evidence of changed
circumstances in Suriname. To the extent that petitioners sought to have the BIA reopen
their case sua sponte, the BIA was not persuaded that exceptional circumstances were
present. The BIA also noted that Ramnarain Joeglal seemed to wish to reopen the
proceedings to adjust his status based on a pending third-preference employment-based
visa petition. Considering the August 2008 Visa Bulletin published by the State
Department, the BIA stated that no visas were currently available in Ramnarain Joeglal’s
visa category. The BIA also noted that he had not included an application for an
adjustment of status.
The petitioners now present a petition for review. We have jurisdiction pursuant to
8 U.S.C. § 1252. We review an order denying a motion to reopen under a highly
deferential abuse of discretion standard. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.
2004); Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir. 1986). The BIA’s discretionary
decision will not be disturbed unless it is arbitrary, irrational or contrary to law. See Guo,
386 F.3d at 562. In this case, the petitioners are unable to show an abuse of discretion.
An alien faces number and time limitations on filing motions to reopen. Generally,
an alien may file only one motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A) (listing an

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exception not relevant here). Also, most motions to reopen must be filed no later than 90
days after the date of the final administrative decision. See 8 U.S.C. § 1229a(c)(7)(A); 8
C.F.R. § 1003.2(c)(2). The general time and number restrictions are subject to some
exceptions, including the suspension of the time limit in some cases of changed country
circumstances, where the evidence of changed circumstances “is material and was not
available and could not have been discovered or presented at the previous hearing.” See 8
U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii), Johnson v. Aschcroft, 286 F.3d
696, 704 (3d Cir. 2002). The time limit, and perhaps the numerical limit, are subject to
equitable tolling. See Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir. 2005); Luntungan
v. Attorney Gen. of the United States, 449 F.3d 551, 557 & n.15 (3d Cir. 2006).
The motions to reopen filed through Dahiya and Wynn were the second and third
such motions filed on the petitioners’ behalf. However, if it is assumed that Saint-Preux
was not authorized to file a motion to reopen and the motion through Wynn is ignored,
then perhaps the motion by Dahiya could survive the number limitations on motions to
reopen even without tolling.
However, even if the Dahiya-authored motion could be considered the petitioners’
first motion to reopen, the petitioners cannot show the diligence necessary to surmount
the time bar. Although they argue to the contrary, they did not maintain a steadfast
pursuit of their case. See Ghahremani v. Gonzales, 498 F.3d 993, 1000 (9th Cir. 2007).
It appears that the BIA did not abuse its discretion in concluding that the petitioners

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should have been on notice in 2004 that their attorney rendered ineffective assistance
when he did not appear at their hearing and sent an ill-prepared substitute. Furthermore,
as the BIA noted, even if the time limit were tolled until May 31, 2007, when Ramnarain
Joeglal retained Dahiya, the petitioners did not file their motion within 90 days. It was
not until June 5, 2008, when they were about to be removed, that the petitioners, through
Dahiya, filed their motion to reopen. (Although the petitioners imply that Dahiya, too,
may have been ineffective (see, e.g., Appellant’s Brief 25), they do not say so explicitly,
and they retained Dahiya at an earlier stage of the proceedings before us.) Even if they
did not discover Saint-Preux’s ineffectiveness until he went to jail in 2007, they still
waited a minimum of five months (and possibly much longer) before filing the motion to
reopen. However, their own allegations that they sought other counsel after Saint-Preux
undermines a claim of late discovery of his malfeasance. For these reasons, the BIA did
not err in concluding they did not exercise sufficient diligence in presenting their
ineffectiveness claim to merit equitable tolling. See Borges, 402 F.3d at 407.
In short, the BIA’s decision was not arbitrary, irrational or contrary to law.
Accordingly, we will deny the petition for review.

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