Justia U.S. 3rd Circuit Court of Appeals Opinion Summaries

Petitioner, a Palestinian citizen, overstayed his visitor's visa, and was denied asylum in September 2003. In May 2004 he married a U.S. citizen and moved his residence. In December 2004 the Board of Immigration Appeals (BIA) gave him 30 days to leave voluntarily. The petitioner learned of the decision in February 2005, and, in March attended an interview about his marriage, obtained a visa, and submitted a motion to reopen to the BIA. The BIA rejected the motion and held that he was barred from adjusting his status. In June the petitioner received an order to report for removal and hired a new attorney. In May 2007 Immigrations and Customs officials arrested the petitioner, who was released under supervision. The BIA rejected a second motion to reopen, filed in August 2009, as time-barred. The Third Circuit affirmed, rejecting a claim of equitable tolling. The petitioner claimed ineffective assistance by his first attorney, but his second attorney, against whom he did not make such a claim, did not file a motion to reopen. There was no evidence to support an allegation that the attorney was relying on a promise by the Department of Homeland Security to file a joint motion.

In 2007 the Board of Immigration Appeals denied a petition for asylum and to withhold removal brought by an Albanian citizen who had entered the United States illegally. In 2009 the BIA declined to reopen the case to consider a claim for asylum based on health care concerns. The Third Circuit remanded for clarification. The BIA acted within its discretion in finding the motion untimely. There is no time limit on a motion to reopen if conditions in the home country have changed, but there was insufficient proof of such a change in this case. The BIA retained discretion to reopen the case sua sponte. While noting that the BIA's discretion on a sua sponte motion is "essentially complete," the court stated that it may point out a possible misperception of the law. Economic disadvantage is not a "serious harm" that would justify reopening the case, but unavailability of needed health care could qualify in some circumstances.