Pеtitioner, Dolores Tapia-Martinez, seeks judicial review of a decision of the Board of Immigration Appeals (“BIA”), denying her second motion to reopen as numerically barred under 8 C.F.R. § 1-3.2(c)(2). Petitioner asserts that because her second motion to reopen is based on ineffective assistance of counsel, equitable tolling should apply. Petitioner also argues that review by a three-member panel pursuant to 8 C.F.R. § 1003. l(e)(6)(v) is warranted. We AFFIRM.
I. Background
The facts were laid out in a prior appeal:
Petitiоner is a native and citizen of Mexico. Pursuant to 8 U.S.C. § 1 182(a)(6)(A)(i), the INS commenced re *419 moval proceedings against petitioner by-filing a Notice to Appear in November 1999, alleging that petitioner was an alien living in the United States without being admitted or paroled. Petitioner appeared before an IJ on May 24, 2000, where she was informed that relief in the form of cancellation of removal might be available to her. At a hearing held before the IJ on August 9, 2000, petitioner, through her counsel, admitted the allegations in the Notice to Appear and conceded removability. Petitioner’s lawyer also requested cancellation of removal for petitioner under 8 U.S.C. § 1229b. The IJ directed that petitioner’s application for cancellation of removal “must be filed no later than September 25, 2000.” The IJ also scheduled a merits hearing for May 7, 2001, for adjudication of petitioner’s application fоr cancellation of removal.
The record indicates that petitioner never filed an application for cancellation of removal. On March 29, 2001, the INS filed a motion to pretermit petitioner’s application for cancellation of removal. On April 19, 2001, petitioner moved to allow substitution of new counsel Marisa Petrella for old counsel Valerie Yaeger and also moved to postpone the May 7 hearing. On April 23, 2001, рetitioner filed an emergency motion requesting leave to file a late application for cancellation of removal, alleging that Yaeger had provided ineffective assistance of counsel by not submitting a timely application.
At the hearing on May 7, 2001, the IJ granted the INS’s motion to pretermit, granted petitioner’s motion to substitute counsel, and denied petitioner’s motion for leave to file a late application. With regard tо the latter motion, the IJ noted that petitioner’s former counsel had been suspended from the practice of law, but the IJ pointed out that petitioner’s new counsel had failed to include any evidence or affidavits to support petitioner’s motion for leave to file a late application. The IJ indicated that petitioner’s counsel could file a motion to reopen petitioner’s case, supported by proper evidence, based specifically on an argument that petitioner’s previous counsel had been ineffective.
Petitioner then requested voluntary departure from the United States under 8 U.S.C. § 1229c, and she testified that she had the means to leave the United States and would do so if her request were granted. The IJ granted her voluntary departure, requiring her to leave on or before July 6, 2001. The IJ also notified petitioner that if she chose to appeal the IJ’s decision, her appeal “must be filed ... on or before June 6, 2001. If you do not file the appeal, it may be dismissed as untimely.”
Petitioner chose to appeal the IJ’s decision to the BIA but did not file a motion to reopen her case. On June 5, 2001, petitioner’s counsel mailed the notice of appeal to the BIA via U.S. Postal Service Express Mail but failed to ensure it was sent via next-day delivery. Petitioner’s appeal was not received by the BIA until June 7, 2001. Fоr this reason, the BIA dismissed the appeal as untimely on August 8, 2002. See 8 C.F.R. §§ 1003.38(b)-(c).
Petitioner’s counsel then moved the IJ to reopen and, in the alternative, to reconsider, petitioner’s case. The motion was dated August 30, 2002, but it was not filed with the Immigration Court until September 3, 2002. Petitioner’s counsel failed to pay the filing fees for the motions. The IJ denied the motions on September 10, 2002, noting that:
• the petitioner failed to include a fee receipt as required by 8 C.F.R. § 1003.23(b)(l)(ii);
*420 • the motion to reconsider was filed more than thirty days after the entry of the May 7, 2001, order, which was the order petitioner wanted the court to reconsider;
• the petitioner was no longer eligible for cancellation of removal, since she had remained in the United States beyond the date set for her voluntary departure, see 8 U.S.C. § 1229c(d); and
• petitioner did not support her motion to reopen with a copy of the application for the relief requested, see8 C.F.R. § 1003.23(b)(3).
On October 10, 2002, petitionеr timely appealed the IJ’s decision to the BIA. On November 28, 2003, the BIA affirmed the IJ’s decision without opinion, pursuant to 8 C.F.R. § 1003.1(e)(4), thereby rendering the IJ’s September 10, 2002, decision the final agency determination for purposes of judicial review. Petitioner then petitioned this court for review of the IJ’s September 10, 2002, decision.
Tapia-Martinez v. Gonzales,
This Court denied the petition for review on July 28, 2005, see id. at 886, holding that the BIA did not abuse its discretion in denying Petitioner’s motion to reopen, or to reconsider, for the numerous reasons set out by the Immigration Judgе (“IJ”). Id. at 884. First, we noted that she failed to include the fee receipt as required by 8 C.F.R. §§ 1003.23(b)(l)(ii) & 1003.31(b). Id. Second, although the IJ cited the wrong regulation, the IJ correctly held that petitioner’s motion to reconsider was untimely. The motion was due within thirty days of the IJ’s order becoming final. § 1003.23(b)(1). Id. at 884-85. Because Petitioner’s counsel failed to file a timely appeal, the IJ’s order became final on June 6, 2001, see id. § 1003.39, giving petitioner thirty days from that date to file a motion to reconsider. Id. at 885. Third, we held that Petitioner failed to support her motion to reopen with a copy of the application for relief requested, as required by § 1003.23(b)(3). Id.
Lastly, we noted that Petitioner sought to reopen her case because of the ineffective assistance of her prior counsel. Id. We stated that
regardless of the merits of her ineffective assistance claim, petitioner did not comply with the voluntary departure order of May 7, 2001. Under 8 U.S.C. § 1229c(d), an alien who is permitted to dеpart voluntarily but fails to do so within the specified time period is ineligible for certain relief, including cancellation of removal, for ten years. Petitioner was specifically advised of these potential consequences at the May 7, 2001, hearing. Because she did not abide by the terms of the voluntary departure, she became ineligible for cancellation of removal, and thus even if the IJ had been inclined to allow the petitioner to filе an application for cancellation of removal, the application would have been denied.
Id.
On or about July 13, 2005, while awaiting a decision regarding judicial review of the BIA’s decision, Petitioner asked the Department of Homeland Security to join in a second motion to reopen, 1 this time following the IJ’s advice and premising the motion on ineffective assistance of counsel. The request to join the second motion to reopen was denied. 2 On August 19, 2005, *421 Petitioner then independently filed a second motion to reopen. The BIA denied the second motion to reopen by order dated October 6, 2005, deciding that it exceeded the numerical limitations for motions to reopen, under 8 C.F.R. § 1003.2(c)(2).
On May 11, 2006, a panel of this Court granted Petitioner’s motion for stay of removal pending judicial review of the BIA’s decision denying her second motion to reopen. The BIA’s denial of Petitioner’s second motion tо reopen is now before us.
II. Analysis
A. Motion to Reopen
The denial of a motion to reopen is reviewed for abuse of discretion.
Had-dad v. Gonzales,
The Board did not abuse its discretion in denying Petitioner’s second motion to reopen as numerically barred. Section 240 of the Immigration and Nationality Act (INA), which governs removal proceedings, provides that an alien who is ordered removed may file only one motion to reopen. 8 U.S.C. § 1229a(c)(7)(A) (2006). Furthermore, 8 C.F.R. § 1003.2(c)(2) provides that “[ejxcept as provided in paragraph (c)(3) of this section, an alien may file only one motion to reopen removal proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 dаys after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2) (2007). Section 1003.2(c)(3) provides four exceptions to the time and numeric bar for motions to reopen; none are applicable here. See 8 C.F.R. § 1003.2(e)(3). 3
*422
Petitioner filed her first motion to reopen on September 3, 2002,
4
and her second motion to reopen on the basis of ineffective assistance of counsel in 2005. The second is clearly subject to the numerical bar of 8 C.F.R. § 1003.2(c)(2). Because the BIA based its decision on this ground, the BIA was not obliged to address the substantive argument—ineffective assistance of counsel—in denying the motion to reopen.
See Daniels v. United States,
Petitioner nonetheless claims that, under the theory of equitable tolling, she should be permitted to file a second motion to reopen. “Strictly defined, equitable tolling is ‘[t]he doctrine that the statute of limitations will not bar a claim if the plaintiff, despite diligent efforts, did not discover the injury until after the limitations period had expired.’ ”
Luntungan v. Attorney Gen.,
The Second, Fourth, and Ninth Circuits have expressly applied equitable tolling to cases involving the numeric bar on motions to reopen.
See Zhao v. INS,
The Sixth Circuit has applied the doctrine of equitable tolling to otherwise time-barred motions to reopen.
6
See Harchenko v. INS,
This Court also need not resolve this question because Petitioner has not established due diligence in pursuing a complaint against either her former or current counsel.
See Scorteanu,
Petitioner argues in her brief that “[f]rom the time Petitioner discovered her former attorney’s ineffective assistance,” she has “exercised due diligence” and “has exhausted all available remedies.” This argument is problematic for two reasons. First, the record reflects that although Petitioner filed a grievance against her previous attorney, Yaeger, with the Michigan Bar authorities in April 2001, soon after she discovered Yaeger’s misconduct, she did not file a motion to reopen her case based on ineffective assistance of counsel at that time. Instead she filed an emergency motion for leave to file a late application for cancellation of removal, alleging that Yaeger had been ineffective for failing to submit a timely application.
Tapia-Martinez,
Petitioner’s argument also overlooks the fact that Petitioner did not exercise due diligence in alleging ineffective assistance against her current counsel, Petrella, having waited over three years after the BIA denied her aрpeal as untimely before filing any allegation of ineffective assistance of counsel. As early as May 7, 2001, Petitioner was alerted to, if not on actual notice of, Petrella’s first shortcoming when the IJ indicated on the record that Petrella failed to include any evidence in support of the leave to file a late application, and the IJ alerted Petrella as to the proper recourse. Further, she heard the IJ’s advice rеgarding a motion to reopen. By August 2002, she must have been aware that the BIA dismissed her appeal as untimely and that Petrella had not followed the IJ’s advice. The IJ’s September 10, 2002 ruling reflects the several bases for denying the motion to reopen, deriving from Pe-trella’s deficient performance. Thus, as early as September 10, 2002, Petitioner *424 should have been aware that the BIA had dismissed her initial appeal as untimely, and she had actual notice from the IJ’s оpinion that Petrella’s representation was suspect in other aspects as well. Petitioner does not allege that she was unaware of these developments or that Petrella hid this information from her. Yet she did not file a motion to reopen alleging ineffective assistance against Petrella until 2005. 7
In short, Petitioner failed to exercise due diligence because she did not file a motion alleging ineffective assistance by Yaeger until fifteеn months after she discovered Yaeger’s deficient performance, and she did not file a similar motion based on Petrella’s short comings until nearly three years after she discovered the ineffective assistance.
See, e.g., Scorteanu,
Finally, we note that Petitioner was and is statutorily ineligible for cancellation of removal, adjustment of status, and voluntary departure pursuant to 8 U.S.C. § 1229e(d). Section 1229c(d) states that: “if an alien is permitted to depart voluntarily under this section and voluntarily fails to depart the United States within the time period specified, the alien—... (B) shall be ineligible, for a period of 10 years, to receive any further relief under this section and sections 1229b, 1255, and 1259 of this title.” This Court recently remarked that “[i]t is important to note here that an alien’s failure to depart within a specified voluntary departure period has harsh legal consequences: it automatically subjects that alien to a ten-year ban on seeking reentry into the United States, as well as a civil penalty in the amount of $1,000 to $5,000,” and that “[tjhe ten year ban also extends to applications for cancellation of removal.”
Martinez-Espino v. Gonzales,
B. Review by a Three-Member Panel
Section 1003.1(e) of the Code of Federal Regulations states that “[u]nless a case meets the standards for assignment to a three-member panel under paragraph (e)(6) of this section, all cases shall be assigned to a single Board member for disposition.” 8 C.F.R. § 1003.1(e) (2006). However, a case may be assigned for three-person review if, in a particular case, there is a “need to review a clearly erroneous factual determination by an immigration judge.” 8 C.F.R. § 1003.1(e)(6)(v). 8 Even then, the regulation does not guarantee a three-member BIA panel as a matter of right. See 8 C.F.R. § 1003.1(e)(6) (“Panel decisions. Cases may only be assigned for review by a three-member panel if the case presents one of these circumstances .... ” (emphasis added)); see also MartinezEspino, 205 Fed.Appx. at *426 (noting that this Court’s precedent “strongly supports” the view that Fifth Amendment due process does not include a constitutional right to a three-member BIA panel).
In her brief, Petitioner states that “the facts merit a finding that Petitioner should be allowed to file a Petition for Cancellаtion of Removal” and that “[o]nly the mishandling of her file by her attorneys, this one included, has led her to not being able to have her case considered.” She also asserts that “[h]er husband, who arguably had the same case, was in fact [granted] the relief of legal permanent residence in December 2001.” These are not allegations of factual error by the IJ, but arguments for equitable relief. Thus, the Board properly exercised its single-member review provision.
III. Conclusion
For the foregoing reasons, the judgment of the BIA is AFFIRMED.
Notes
. Joint motions to reopen are not subject to the numerical limitations that are normally applicable pursuant to 8 C.F.R. § 1003.2(c)(2) and (3).
. In a letter dated July 26, 2005, Kathleen L. *421 Alcorn, Chief Counsel, U.S. Department of Homeland Security in Detroit, stated in pertinent part:
The respondent entered the United States without inspection. She has been under a final order since May 7, 2001. The respondent has failed to depart the United States and is statutorily barred from relief. Moreover, her children were granted final orders of voluntary departure on December 7, 2000. She has not established hardship given her husband’s status as a lawful permanent resident. Finally, you request a joint motion to reopen but state your client has filed a grievance against you for your representation. Based on all these facts the Service is not inclined to join in a motion to reopen.
. 8 C.F.R. § 1003.2(3)(c) provides as follows: (3) In removal proceedings pursuant to section 240 of the Act, the time limitation set forth in paragraph (c)(2) of this section shall not apply to a motion to reopen filed pursuant to the provisions of § 1003.23(b)(4)(h). The time and numerical limitations set forth in paragraph (c)(2) of this section shall not apply to a motion to reopen proceedings:
(i) Filed pursuant to the provisions of § 1003.23(b)(4)(iii)(A)(l) or § 1003.23(b)(4)(iii)(A)(2);
(ii) To apply or reapply for asylum or withholding of deportation based on changed cirсumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing;
(iii) Agreed upon by all parties and jointly filed. Notwithstanding such agreement, the parties may contest the issues in a reopened proceeding; or
(iv) Filed by the Service in exclusion or deportation proceedings when the basis of the motion is fraud in the original proceeding or a crime that would support termination of asylum in accordance with § 1208.22(f) of this chapter.
. The IJ denied it on September 10, 2002, the BIA affirmed without opinion on November 28, 2003, and this Court denied review on July 28, 2005.
. As
Luntungan
observed, the term equitable tolling may not be entirely accurate because tolling, by definition, applies to time limits, not numerical limits.
Luntungan v. Attorney Gen.,
. Relatedly, the Supreme Court has stated that the equitable tolling dоctrine "is read into every federal statute of limitation.”
Holmberg v. Armbrecht,
. Petitioner filed a complaint against Petrella with the Michigan Attorney Grievance Commission on or about June 13, 2005.
Respondent points out that Petitioner did not present every possible complaint against Petrella. Neither the motion to reopen (written by Petrella) nor Petitioner’s affidavit accompanying her bar сomplaint mentioned the fact that Petrella ignored the IJ's virtual invitation to file a properly documented motion to reopen alleging ineffective assistance. Petitioner's affidavit also failed to highlight the fact that her initial appeal to the BIA was untimely because Petrella sent it via second-day delivery, such that it could not possibly have been timely. Petitioner's affidavit further fails to mention that her untimely appeal caused Petitioner to fail to comply with thе earlier order of voluntary departure, rendering her ineligible for cancellation of removal, which also formed a basis for the IJ’s denial of the motion to reopen.
In short, as Respondent states, Petitioner's failure to raise these complaints against Pe-trella further undermines her assertion of due diligence in pursuing an ineffective assistance claim against current counsel.
. Section 1003.1(e) contains six exceptions. Petitioner does not claim that any other exceptions apply.