Oladejo v. Attorney General of United States
Oladejo v. Attorney General of United States
Opinion of the Court
OPINION OF THE COURT
Faith Oladejo petitions for review of an order of the Board of Immigration Appeals (BIA), which denied his third motion to reopen his removal proceedings. We will grant the petition for review.
Oladejo filed a motion to reopen in March 2005, claiming neither he nor counsel had received the BIA’s 2003 decision. On May 10, 2005, the BIA denied the motion as untimely, discounting the allegation that the decision had not been received. Oladejo, proceeding pro se, filed a second motion to reopen in February 2007, alleging that the time period for filing a motion to reopen should be equitably tolled because of the ineffectiveness of counsel.
On March 21, 2008, Oladejo filed a petition for review and motion for stay of removal in the United States Court of Appeals for the Fifth Circuit. That Court transferred the case to the United States Court of Appeals for the Second Circuit, which eventually transferred the case here.
The decision to deny a motion to reopen is within the Board’s discretion. See 8 C.F.R. § 1003.2(a); Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001). The deadline for filing a motion to reopen may be equitably tolled by an ineffective assistance of counsel claim. See Borges v. Gonzales, 402 F.3d 398, 407 (3d Cir. 2005). Oladejo relied on his first attorney’s advice to continue pursuing adjustment of status through his wife, who was a permanent resident. Oladejo’s church also filed a petition for Special Immigrant-Religious Worker on his behalf.
We hold that the Board erred in finding that Oladejo “fail[ed] to attribute the delay in pursuing reopening to ineffective assistance.” A.R. 2. Indeed, it was because his attorney failed to explain the process to him that he continued to pursue adjustment of status in vain, rather than moving again to reopen. We will therefore grant the petition for review and remand to the BIA for further proceedings. The Clerk is directed to issue the mandate forthwith.
. We note that Oladejo complied with the procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), in establishing his claim that counsel was ineffective.
. The BIA denied a motion for reconsideration of the March decision on May 2, 2008. That order is not at issue here.
. The church’s petition was approved on January 20, 2004.
. In his emergency motion to stay removal, which we granted on Feb. 19, 2010, Oladejo stated for the first time that his wife had since become an American citizen, and had filed an 1-130 Petition on his behalf.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.