Iannetta v. INS

Opinion

USCA1 Opinion

March 1, 1995         [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

          No. 94-1962

                                   FELICE IANNETTA,

                                     Petitioner,

                                          v.

                       IMMIGRATION AND NATURALIZATION SERVICE,

                                     Respondent.

                                 ____________________

                         PETITION FOR REVIEW OF A FINAL ORDER
                         OF THE BOARD OF IMMIGRATION APPEALS

                                 ____________________

                                        Before

                               Torruella, Chief Judge,
                                          ___________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                               and Cyr, Circuit Judge.
                                        _____________

                                _____________________

               Steven  L. Catalano,  with whom  Thomas F.  Connors, was  on
               ___________________              __________________
          brief for petitioner.
               Terese   A.  Wallbaum,   Attorney,  Office   of  Immigration
               _____________________
          Litigation, Civil Division, U.S. Department of Justice, with whom
          Frank W. Hunger, Assistant  Attorney General, Civil Division, and
          _______________
          Charles  E. Pazar,  Attorney,  Office of  Immigration Litigation,
          _________________
          were on brief for respondent.

____________________

____________________



Per  Curiam.   Petitioner Felice  Iannetta ("Iannetta")
                    Per  Curiam.
                    ___________

          appeals the Board of Immigration Appeals' (the "Board") denial of

          his motion for  reconsideration of  his deportation  proceedings.

          For the following reasons, we affirm.

                                      BACKGROUND
                                      BACKGROUND

                    Iannetta, a native of  Italy, entered the United States

          in  March  1971  on  an  immigrant   visa.    Following  numerous

          convictions,  including  four counts  of  assault  with a  deadly

          weapon, the Immigration and Naturalization Service ("INS") issued

          an order to show cause why Iannetta should not be deported.  At a

          January  1992 deportation hearing,  Iannetta admitted the factual

          allegations and conceded his  deportability based on his numerous

          convictions.  He requested discretionary relief from deportation,

          however, under   212(c) of  the Immigration and Nationality Act.1

          After  the  hearing,  the  Immigration  Judge  ("IJ")  issued  an

          opinion, finding  Iannetta deportable  on the ground  charged and

          denying his request for relief under   212(c).

                    Iannetta  appealed  the  IJ's  decision  to the  Board,

          maintaining  that the  IJ  erred  in  balancing the  equities  of

          Iannetta's  case.   On  February  5,  1993, the  Board  summarily

          dismissed the appeal as "clearly untimely" because the  notice of

          appeal  was due on January 23, 1992,  but not filed at the Office

          of the Immigration Judge until  February 10, 1992.   Furthermore,

          the required fee was not paid until January 31, 1992.

                              
          ____________________

          1   Section  212(c)  of  the  Act  grants  the  Attorney  General
          discretion  to  admit  or  suspend  deportation  of  a  permanent
          resident who has resided in the  United States for at least seven
          year.  8 U.S.C.   1182(c) (1988). 



Iannetta filed  a motion  to reopen, claiming  that the

          motion had been timely filed and any error was on the part of the

          INS.   The Board  denied this motion,  however, on  May 21, 1993.

          The  Board stated  the requirements  for a  timely  appeal, which

          mandate  both timely  payment  of  a fee  to  an  INS office  and

          subsequent receipt of the appeal by the Office of the Immigration

          Judge within 10 calendar days after the decision.  The Board then

          found that the evidence supported its finding of untimely filing,

          and denied Iannetta's motion to reopen.

                    Represented by new  counsel, Iannetta again  challenged

          the Board's decision by  filing a motion to reconsider.   In this

          motion,  Iannetta alleged that the untimely  filing of his appeal

          constituted   ineffective  assistance  of  counsel.    The  Board

          rejected  this motion on July 20, 1994, finding that Iannetta had

          not  met  the  evidentiary requirements  for  a  motion  based on

          ineffective assistance  of counsel as those  requirements are set

          forth in Matter of Lozada,  19 I & N Dec. 637  (BIA 1988), aff'd,
                   ________________                                  _____

          857 F.2d 10 (1st Cir. 1988).

                    Iannetta  now appeals  the  Board's rejection  of  this

          final motion to reconsider,  on three grounds.  First,  he argues

          that he was denied  effective assistance of counsel, in  that his

          former counsel's  failure to  timely file his  appeal effectively

          "robbed"  Iannetta of the opportunity to have his appeal heard by

          the Board.   Second, Iannetta  contends that the  Board committed

          reversible error in denying his request for reconsideration based

          upon  his  ineffective assistance  of  counsel  claim.   Finally,

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Iannetta  argues that  the Board  erred in  relying on  Matter of
                                                                  _________

          Lozada, 19 I  & N Dec.  637 (BIA 1988),  aff'd, 857 F.2d  10 (1st
          ______                                   _____

          Cir. 1988), in denying his motion for reconsideration.

                                       ANALYSIS
                                       ANALYSIS

                    A.  Ineffective Assistance of Counsel
                    A.  Ineffective Assistance of Counsel
                        _________________________________

                    We  have  held that  because  deportation hearings  are

          civil, rather than criminal,  aliens have no constitutional right

          to  counsel  under  the  Sixth Amendment  in  these  proceedings.

          Lozada,  857  F.2d  at 13  (citations  omitted).    An alien  is,
          ______

          however,  entitled to a fair hearing under the due process clause

          of the Fifth Amendment, and ineffective assistance of counsel may

          under certain circumstances give rise to a due process violation.

          Id.   The standard for such violations  is high, however; we have
          __

          held  that ineffective  assistance  of counsel  in a  deportation

          proceeding  is a denial of due process only if the proceeding was

          so  fundamentally  unfair  that  the  alien  was  prevented  from

          reasonably presenting  his case.  Id.  (quoting Ram rez-Durazo v.
                                            __            ______________

          INS,  794 F.2d  491,  499-500 (9th  Cir.  1986) (other  citations
          ___

          omitted).

                    Iannetta argues on appeal that his right to due process

          was violated by his  former counsel's failure to timely  file his

          appeal  of  the IJ's  deportation  decision,  as it  "effectively

          robbed" Iannetta of the  opportunity to have his appeal  heard on

          the merits.  Iannetta relies heavily on  Casta eda-Su rez v. INS,
                                                   ________________    ___

          993 F.2d 142 (7th Cir. 1993), in which the untimely filing of a  

          212(c)  relief   from  deportation  application   was  found   to

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constitute  ineffective  assistance   of  counsel.     Casta eda,
                                                                 _________

          however,  is  inapposite and  therefore  unpersuasive  here.   In

          Casta eda,  the  actions of  the petitioner's  counsel completely
          _________

          deprived  the  alien  of   any  opportunity  whatsoever  to  seek

          discretionary  relief under   212(c), either before the IJ or the

          Board.    Casta eda,  993  F.2d  at  144-45.    This  holding  is
                    _________

          consistent  with  precedent in  this circuit  to the  effect that

          ineffective assistance  of counsel  may constitute a  due process

          violation if "the alien  was prevented from reasonably presenting

          his case."  Lozada, 857 F.2d at 13-14.
                      ______

                    In the  instant case, on  the other hand,  Iannetta was

          given  a full  and fair  opportunity  to present  his case  for  

          212(c)  discretionary relief before the IJ.  He therefore had one

          fair  hearing, and his counsel's  actions were not  a complete or

          even partial deprivation of  Iannetta's reasonable opportunity to

          request   212(c) relief, as was the case in Casta eda.
                                                      _________

                    Furthermore,  Iannetta had  no constitutional  right of

          review of  the IJ's decision beyond what was provided, and one of

          the  reasonable  procedural conditions  of  such  review was  the

          timely filing of an appeal.  Iannetta attempts to argue here that

          an alien should be  allowed to avoid the adverse  consequences of

          noncompliance  with this  condition by  simply failing  to timely

          file  and then claiming  ineffective assistance  of counsel.   We

          agree  with the  INS  that  such  a  loophole  would  effectively

          eviscerate the timeliness requirement and render the law void.

                    Nor are we willing to accept Iannetta's contention that

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the failure of his counsel to file a timely appeal is, by itself,

          ineffective  assistance of counsel rising  to the level  of a due

          process  violation.    We  have  warned  that  absent  "egregious

          circumstances,"     litigants  are   generally  bound   by  their

          attorneys'  conduct,  and it  is  not  necessarily egregious  for

          counsel's  actions  to  be  the  basis  for  denying  the  client

          discretionary relief.   LeBlanc v.  INS, 715 F.2d  685, 694  (1st
                                  _______     ___

          Cir. 1983) (citations  omitted).  Indeed, Iannetta has  failed to

          argue  with any specificity how  his counsel's failure  to file a

          timely  appeal was  so egregious  as to  violate due  process; he

          merely sets forth  what arguments he would  make to the Board  if

          his appeal were heard on its merits -- specifically, that the  IJ

          incorrectly balanced the equities  of his case.2  This  is simply

          insufficient to  establish  a violation  of due  process, and  we

          therefore  reject Iannetta's  ineffective  assistance of  counsel

          claim.

                    B.  The Board's Denial of his Motion to Reconsider
                    B.  The Board's Denial of his Motion to Reconsider
                        ______________________________________________
                              
          ____________________

          2   We note  that, had the  Board heard Iannetta's  appeal on the
          merits, it is  extremely unlikely that  he would have  prevailed.
          He admitted  to twenty  convictions for  a  variety of  offenses,
          including  assault  with a  deadly  weapon,  passing bad  checks,
          banking law violations, and driving with a suspended license.  In
          his hearing before  the IJ, he did  not demonstrate any  signs of
          remorse  or   acknowledgment   of  culpability.     Rather,   his
          explanations   amounted  to   little  more   than  a   denial  of
          culpability.   He attempted  to minimize  the seriousness  of his
          assault convictions by explaining  that they were "only" domestic
          disputes, and not attacks on strangers.  In light of this record,
          it seems rather clear that the IJ's balancing of the equities and
          rejection of  Iannetta's   212(c) relief  claim was well-founded,
          reasonable,  and  squarely  within  the  bounds   of  discretion.
          Therefore, even if he was denied effective assistance of counsel,
          it is extremely dubious that he would be able to show that he was
          actually prejudiced.

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The Board's  authority to  grant  or deny  a motion  to

          reopen  or reconsider  deportation proceedings  is discretionary.

          INS v. Jong Ha Wang, 450  U.S. 139, 144 n.5 (1981).  Accordingly,
          ___    ____________

          we  review the Board's decisions  regarding such motions under an

          abuse of  discretion standard,  reversing if the  Board's actions

          were arbitrary or capricious.  INS v. Doherty, __ U.S. __, 112 S.
                                         ___    _______

          Ct. 719,  724-25 (1992); Gebremichael v. INS, 10 F.3d 28, 34 n.17
                                   ____________    ___

          (1st Cir. 1993); LeBlanc, 715 F.2d at 692-93.
                           _______

                    Although  Iannetta  argues  vehemently that  the  Board

          abused its  discretion in denying his motions  to reconsider, his

          argument seems to rest  primarily on the fact that the  Board did

          not  reach the  merits of  his appeal,  but merely  dismissed the

          motion  on the ground that his appeal  was not timely filed.  Our

          reading of the Board's May 21, 1993 decision, however, reveals no

          abuse of discretion.  On the contrary, the Board clearly and with

          particularity set forth  its standard for  reviewing a motion  to

          reconsider, carefully expounded the evidence before it, and found

          that Iannetta had failed to meet his evidentiary burden.  Nothing

          in  the  Board's  decision  suggests  undue  haste,  caprice,  or

          unfairness;  the decision  is well-reasoned  and the  result well

          within  the Board's discretion.  We therefore find that the Board

          did not  abuse its  discretion in  denying Iannetta's motions  to

          reconsider.

                    C.  The Board's Reliance on Matter of Lozada
                    C.  The Board's Reliance on Matter of Lozada
                        ________________________________________

                    Finally, Iannetta contends  that the Board  erroneously

          relied on Matter  of Lozada  in its decision  to deny  Iannetta's
                    _________________

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motion for  reconsideration.  This argument  essentially rests on

          his attempt  to distinguish  Lozada, stating  that it  involved a
                                       ______

          motion  for reopen, rather than a motion for reconsideration.  We

          find this distinction meaningless in this context, and Iannetta's

          argument completely meritless.  As  we stated above, the  Board's

          denial of  Iannetta's motion  to reconsider was  well-grounded in

          both the applicable  facts and the  law.  Even  if the Board  had

          relied on  the  wrong  legal  standard,  the  record  shows  that

          Iannetta's motion was  untimely filed.  Therefore,  the Board was

          justified in denying his motion.  As we have further stated, even

          if the  Board had reconsidered  Iannetta's case, it  is extremely

          unlikely given  his twenty convictions  that he would  prevail on

          appeal.  In  short, even  assuming arguendo that  there was  some
                                             ________

          error in the Board's reliance on Lozada, we simply do not see any
                                           ______

          prejudice or  harm resulting  from it.    Accordingly, we  reject

          Iannetta's arguments.

                                      CONCLUSION
                                      CONCLUSION

                    For  the  foregoing   reasons,  we  dismiss  Iannetta's
                                                        ___________________

          petition for review, and affirm the Board's denial of  Iannetta's
          _________________________________________________________________

          motions and its entry of Iannetta's order of deportation.
          ________________________________________________________

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