Roman Moldavchuk v. Attorney General United States
17-1175
| 3rd Cir. | Dec 4, 2017Background
- Moldavchuk, a Ukrainian national, overstayed a 1997 visitor admission and was charged with removability in 2004; he conceded removability and sought multiple continuances to pursue employment- and family-based adjustment.
- The IJ denied a continuance in September 2009 and ordered removal, concluding his eligibility for adjustment was speculative; the BIA affirmed in April 2011 after Moldavchuk proceeded pro se on appeal.
- Between 2009 and 2012 Moldavchuk married, had a U.S. citizen child, retained counsel Orlow who filed (and later had withdrawn) an I-130 filed by a prior spouse, and later divorced; Orlow’s scope of representation was limited to USCIS matters.
- Moldavchuk later remarried a U.S. citizen (2016) and filed a motion to reopen the BIA’s 2011 decision in September 2016, alleging ineffective assistance by Orlow for not moving the BIA to remand and alternatively requesting sua sponte reopening for exceptional circumstances.
- The BIA denied the motion as untimely, ruled equitable tolling was not warranted because Moldavchuk lacked diligence and counsel was not shown to have been ineffective within the scope of representation, found no prejudice (no pending I-130; administrative closure or prosecutorial discretion unlikely to change outcome), and declined to sua sponte reopen.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness / equitable tolling of motion to reopen | Moldavchuk: BIA decision was final in 2011; equitable tolling should apply because of ineffective assistance by Orlow | Government: Motion filed in 2016 was outside 90-day rule; no tolling because requirements unmet | Motion untimely; equitable tolling denied for lack of due diligence and other defects |
| Ineffective assistance of counsel: scope of representation | Moldavchuk: Orlow should have moved the BIA to remand despite representing him before USCIS | Government: Orlow’s representation was limited to USCIS; he never entered appearance before IJ/BIA | No deficient performance—Orlow’s duties did not encompass BIA/IJ filings |
| Prejudice: would remand / filings have changed outcome (administrative closure or prosecutorial discretion) | Moldavchuk: remand could have led to administrative closure or discretionary relief; child could later sponsor him | Government: I-130 had been withdrawn; child was too young; administrative closure for decades unlikely; prosecutorial discretion is DHS prerogative | No prejudice shown; remand would not likely have altered outcome; administrative closure/prosecutorial discretion speculative |
| Reviewability of BIA refusal to sua sponte reopen | Moldavchuk: BIA abused discretion by refusing sua sponte reopening for exceptional circumstances | Government: BIA’s denial of sua sponte reopening is committed to discretion and largely unreviewable | Court lacks jurisdiction to review BIA’s discretionary refusal to sua sponte reopen; claim dismissed |
Key Cases Cited
- Filja v. Gonzales, 447 F.3d 241 (3d Cir.) (abuse-of-discretion standard for motions to reopen)
- Borges v. Gonzales, 402 F.3d 398 (3d Cir.) (substantial-evidence review of factual findings)
- Fadiga v. Attorney General, 488 F.3d 142 (3d Cir.) (standards for ineffective assistance of counsel in immigration context)
- Alzaarir v. Attorney General, 639 F.3d 86 (3d Cir.) (equitable tolling requires due diligence throughout the tolled period)
- Calle-Vujiles v. Ashcroft, 320 F.3d 472 (3d Cir.) (BIA’s sua sponte reopening decision committed to its discretion)
- Pllumi v. Attorney General, 642 F.3d 155 (3d Cir.) (limited review of sua sponte reopening where decision rests on a false legal premise)
- Gonzalez-Vega v. Lynch, 839 F.3d 738 (8th Cir.) (administrative closure unreasonable where closure period would be multi-decade and success of future petition is remote)