Scorteanu v. INS

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 7, 2003
• Docket: 01-4271
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Scorteanu v. INS No. 01-4271 ELECTRONIC CITATION: 2003 FED App. 0277P (6th Cir.) File Name: 03a0277p.06 Michigan, for Petitioner. James A. Hunolt, Emily A. Radford, UNITED STATES DEPARTMENT OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION, Washington, UNITED STATES COURT OF APPEALS D.C., for Respondent. FOR THE SIXTH CIRCUIT _________________ _________________ OPINION CORNEL VIOREL SCORTEANU, X _________________ Petitioner, - KRUPANSKY, Circuit Judge. This appeal arises from a - - No. 01-4271 decision by the Board of Immigration Appeals (“BIA” or v. - “Board”) to dismiss a motion by petitioner, Cornel Viorel > Scorteanu (“Scorteanu”), to reopen deportation proceedings , pursuant to section 242B(c)(3) of the Immigration and IMMIGRATION AND - NATURALIZATION SERVICE, Nationality Act (“INA” or “Act”), 8 U.S.C. § 1252b(c)(3), - alleging ineffective assistance of counsel.1 For the reasons Respondent. - discussed below, the Board’s order of dismissal is affirmed. - N I. BACKGROUND On Appeal from the Board of Immigration Appeals. No. A72 171 730. Petitioner Scorteanu is a 31-year-old native and citizen of Romania, of Hungarian ethnicity, who entered the United Argued: May 6, 2003 States at Chicago, Illinois on June 20, 1994 as a B-2 visitor for pleasure. His visa authorized him to remain in the United Decided and Filed: August 7, 2003 States until December 19, 1994. On September 15, 1994, petitioner applied for asylum. The Chicago Asylum Office Before: KRUPANSKY, SILER, and GILMAN, Circuit referred his application to an Immigration Judge (“IJ”). Judges. Petitioner was served with an Order to Show Cause (“OSC”),

_________________ 1 The amendments made by the Illegal Immigration Reform and COUNSEL Immigrant Responsibility Act of 1996, Division C of Pub.L.No. 104-208, 110 Stat. 3009-546 (“IIRIRA”), are not applicable to the instant case. As ARGUED: Michael E. Piston, Troy, Michigan, for such, references herein are made to the Immigration and Nationality Act as it existed prior to the enactment of the IIRIRA. The IIRIRA repealed Petitioner. Hillel R. Smith, UNITED STATES the section under consideration in this case, but provided transitional rules D E P A R T M E N T O F JU S T IC E , OFFICE OF that apply to cases, such as the instant case, where the deportation IMMIGRATION LITIGATION, Washington, D.C., for proceedings commenced prior to April 1, 1996. The transitional rules Respondent. ON BRIEF: Michael E. Piston, Sufen Li, Troy, provided that the INA app lies as codified prior to the passage of the IIRIRA. See IIRIRA §§ 306 (c)(1), 309(a).

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dated September 6, 1995, charging deportability as an Scorteanu then turned to attorney Mosabi Hamed. overstay under Section 241 (A)(1)(c)(i) of the INA. During Previously, after his 1996 marriage to a United States citizen, the pendency of his merits hearing, petitioner married a petitioner had retained Hamed to handle his I-130 Immigrant United States citizen. Petition for Alien Relative. Throughout 1999, Scorteanu kept in contact with Hamed regarding his asylum petition even Petitioner retained Attorney Ronald A. Muresan though Hamed was not petitioner’s attorney of record for (“Muresan”) to represent him in his asylum case. On those proceedings. Hamed continued to advise Scorteanu that April 11, 1996, Scorteanu appeared with Muresan before an he had inquired into petitioner’s asylum case and assured him IJ for a Master Calendar hearing where petitioner renewed his that it was still pending.2 asylum application and the IJ scheduled an Individual Merits Hearing for November 19, 1996. On November 8, 1996, On January 18, 2000, Scorteanu retained new counsel. As Muresan informed petitioner by telephone that the a result of his new counsel’s inquiry with the Immigration immigration court had rescheduled the merits hearing and and Naturalization Service (“INS”), petitioner learned of the would send Muresan a written notice of a new date. Attorney in absentia Order of Deportation of March 26, 1997 in late Muresan received a letter, dated November 8, 1996, by March of 2000.3 Nevertheless, Scorteanu waited until certified mail from the immigration court, advising that February 12, 2001 to file a Motion to Reopen Deportation Scorteanu’s deportation hearing was rescheduled for Proceedings with the immigration court. For that proceeding March 26, 1997. Muresan never advised petitioner of the new Scorteanu submitted his own affidavit and an affidavit from hearing date, nor did he file the requested notice of former attorney Muresan detailing his ineffective assistance petitioner’s change of address with the immigration court. In of counsel. the months that followed, Scorteanu contacted Muresan several times regarding notice of a new hearing date and, each In denying Scorteanu’s Motion to Reopen, the IJ time, Muresan informed petitioner that he would notify determined in her March 15, 2001 Order that petitioner had petitioner when he received the new hearing date. exceeded the statutory time limit of 180 days for filing a motion to reopen based on exceptional circumstances Unbeknownst to Scorteanu, during this period, Muresan pursuant to INA § 242B(c)(3)(A). See Matter of A-A-, Int. was suspended and eventually disbarred from the practice of law. Muresan did not advise petitioner of this development 2 nor inform the immigration court of his suspension. As a In early 1996, Scorteanu had married Doina Zieminska and retained consequence of Muresan’s representation, petitioner did not attorney Mosabi Hamed to file an I-130 Immigrant Petition for Alien receive a copy of the hearing notice and neither Scorteanu nor Relative. At no time did Hamed enter an appearance on b ehalf of the petitioner in the instant deportation proceedings. While Scorteanu has Muresan attended the March 26, 1997 merits hearing where, averred that he informed Hamed of his pending asylum application and consequently, petitioner was ordered deported in absentia to that Hamed had agreed to inquire into the status of petitioner’s asylum Romania. During 1997 and 1998 Muresan fraudulently case, any statem ents ma de by Hamed with respect to the pendency of the advised Scorteanu that his asylum case was still pending deportation proceedings are irrelevant to the petitioner’s claims of before the immigration court. In early 1999, Scorteanu exceptional circumstances and lack of notice where Hamed was not learned from members of the Romanian community in petitioner’s counsel of record. Michigan that Muresan had been disbarred. 3 The BIA accepted this time fram e in its November 9, 2001 dismissal of petitioner’s ap peal. No. 01-4271 Scorteanu v. INS 5 6 Scorteanu v. INS No. 01-4271

Dec. 3357 (BIA 1998). The IJ further observed that attorney absentia order of deportation under limited circumstances. Muresan’s acknowledged receipt of notice for the March 26, See Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996). An 1997 deportation hearing met the statutory requirements of in absentia order of deportation may be rescinded upon a the act. See INA § 242B(a)(2). Finally, the court addressed, motion to reopen filed at any time if the alien demonstrates sua sponte, the effect of Muresan’s fraud, noting: “Even that he or she did not receive notice in accordance with the assuming arguendo that the petitioner had some basis to requirements in section 242B(a)(2) of the Act. 8 U.S.C. assert a claim for tolling of the 180 days, more than that § 1252B(c)(3)(B) (1994). Alternatively, an in absentia order period elapsed between actual notice of the entry of the may be rescinded upon a motion to reopen filed within 180 Court’s order and the filing of the instant motion.” days of the date of the deportation order “if the alien demonstrates that the failure to appear was because of Scorteanu petitioned for review of the IJ’s denial before the exceptional circumstances as defined in subsection (f)(2) of BIA on April 13, 2001. The BIA returned a dismissal of this section.” § 242B(c)(3)(A). Thus, in seeking recision of petitioner’s appeal on November 9, 2001. The Board noted an in absentia deportation order, the burden rests on the that petitioner’s motion was filed well beyond the 180 day movant to demonstrate either improper notice or exceptional statutory time limit pursuant to § 242B(c)(3)(A) of the Act. circumstances. See Giday v. INS, 113 F.3d 230, 233 (D.C. The Board also addressed the IJ’s sua sponte consideration of Cir. 1997). the possibility of equitable tolling of the 180 day time limit, observing that such equitable relief was unavailable when a Scorteanu has, first, averred that section 242B(c)(3)(B) of party, such as the petitioner, failed to exercise due diligence the Act permitted him to file a motion to reopen the on his own behalf, filing the recision motion almost a year in absentia order of deportation at any time because he failed after actual notice. Scorteanu then perfected this timely to receive notice of the hearing. Petitioner has specifically appeal. contended that the language of section 242B(c)(3)(B) requires notice of a scheduled deportation hearing to the alien while Jurisdiction over this petition is conferred upon this Court making notice to the alien’s attorney insufficient, because by section 106 of the Immigration and Nationality Act, section 242B(c)(3)(B) refers to notice “to the alien,” rather 8 U.S.C. § 1105a as it existed immediately prior to April 1, than to the alien or the alien’s counsel. A brief examination 1997, the effective date of the Illegal Immigration Reform of the applicable statutory language reveals the inadequacy of and Responsibility Act of 1996 (“IIRIRA”). petitioner’s contention. II. ANALY SIS Section 242B(c)(3)(B) of the Act directs that an in absentia, The Court reviews the denial of a motion to reopen order may be rescinded only-- deportation proceedings for abuse of discretion. See INS v. ... Doherty, 502 U.S. 314, 323 (1992); Ashki v. INS, 233 F.3d (B) upon a motion to reopen filed at any time if the alien 913, 921 (6th Cir. 2000); see also INS v. Abudu, 485 U.S. 94, demonstrates that the alien did not receive notice in 110 (1988). accordance with subsection (a)(2) or the alien demonstrates that the alien was in Federal or State Pursuant to section 242B(c)(3) of the Act, the IJ and the custody and did not appear through no fault of the alien. BIA are permitted as a matter of discretion to rescind an in No. 01-4271 Scorteanu v. INS 7 8 Scorteanu v. INS No. 01-4271

8 U.S.C. § 1252b(c)(3)(B) (1994). The referenced subsection Men Keng Chang v. Jiugni, 669 F.2d 275, 277-78 (5th Cir. 242B(a)(2) of the Act provides as follows: 1982) (explaining that service upon appellant’s counsel was effective to constitute notice to appellant). In deportation proceedings under section 242-- Additionally, Scorteanu’s contention that the Board abused (A) written notice shall be given in person to the alien its discretion by not directly addressing his interpretation of (or, if personal service is not practicable, written notice section 242B(c)(3)(B) is without merit. Relief under section shall be given by certified mail to the alien or to the 242B(c)(3)(B) was not available to the petitioner whose then alien's counsel of record, if any), in the order to show attorney of record had, admittedly, received proper notice. cause or otherwise, Moreover, the Board need not “list every possible positive ... and negative factor in its decision.” Rodriguez-Rivera v. INS, (B) in the case of any change or postponement in the 993 F.2d 169, 170-71 (8th Cir. 1993). As the Fifth Circuit time and place of such proceedings, written notice shall has observed, the Board “has no duty to write an exegesis on be given in person to the alien (or, if personal service is every contention. What is required is merely that it consider not practicable, written notice shall be given by certified the issues raised, and announce its decision in terms sufficient mail to the alien or to the alien's counsel of record, if to enable a reviewing court to perceive that it has heard and any) thought and not merely reacted.” Osuchukwu v. INS, 744 F.2d 1136, 1142-43 (5th Cir. 1984). See Torres v. INS, No. 8 U.S.C. § 1252b(a)(2)(A) & (B) (1994). 93-3617, 1994 WL 284540 (6th Cir. June 27, 1994) (unpublished disposition) (concluding that it was sufficient to Petitioner has admitted that attorney Muresan, his then prove that the Board fully considered the petitioner’s claims counsel of record, received proper certified notification of the when the Board explicitly recited that it had reviewed the March 26, 1997 hearing. Because § 242B(c)(3)(B) provides record and the IJ’s decision and adopted the reasoning of the for reopening of in absentia proceedings only as a “remedy IJ); Najib v. INS, No. 93-3139, 1994 WL 95935 (6th Cir. for improper service,” relief under this section is unavailable March 23, 1994) (unpublished disposition) (noting that the to Scorteanu. See Dobrota v. INS, 311 F.3d 1206, 1211 (9th Board adequately set forth its reasons for denying relief by Cir. 2002) (maintaining that § 242B makes clear that “[a]n examining the IJ’s application of the facts to the law, alien does not have to actually receive notice of a deportation addressing petitioner’s arguments on appeal and then reaching hearing in order for the requirements of due process to be its own conclusion). Upon review, the BIA’s opinion and the satisfied,” as the INS may satisfy notice requirements by record have provided this court with sufficient basis upon mailing notice of the hearing to petitioner’s attorney’s address which to review the BIA’s decision. of record); Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000) (concluding that notice was adequate where served Petitioner has, further, asserted that exceptional only upon petitioners’ attorney); Arrieta v. INS, 117 F.3d 429, circumstances warrant reopening the deportation proceedings 431 (9th Cir. 1997) (finding that notice sent by certified mail in light of his claim not to have received notice due to to last known address rendered service presumptively ineffective assistance of counsel. Scorteanu has specifically effective); Wijeratne v. INS, 961 F.2d 1344, 1347 (7th Cir. averred that a motion to reopen an in absentia deportation 1992) (concluding that an IJ may send notice of hearing to proceeding may be pursued at any time where ineffective alien’s representative to effectively constitute notice to alien); assistance of counsel is shown and, as such, the BIA’s No. 01-4271 Scorteanu v. INS 9 10 Scorteanu v. INS No. 01-4271

dismissal was a violation of due process. Petitioner’s claim 8 U.S.C. § 1252b(c)(3)(A) (1994). Section 242B(f)(2), has little merit. provides: This Circuit has recognized that Fifth Amendment The term ‘exceptional circumstances’ refers to guarantees of due process extend to aliens in deportation exceptional circumstances (such as serious illness of the proceedings, entitling them to a full and fair hearing. alien or death of an immediate relative of the alien, but Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001). not including less compelling circumstances) beyond the The alien must prove that ineffective assistance of counsel control of the alien. resulted in prejudice or denial of fundamental fairness in order to prove a denial of due process. Dokic v. INS, No. 92- 8 U.S.C. § 1252(f)(2) (1994). See also In re Assaad, 23 I. & 3592, 1993 WL 265166, *3 (6th Cir. July 15,1993) N. Dec. 553, 558 (BIA Feb. 12, 2003); Matter of Grijalva- (unpublished) (citing Aguilera-Enriquez v. INS, 516 F.2d 565, Barrera, 21 I & N Dec. 472, 474 (BIA 1996) (finding 569 (6th Cir. 1975)). Due process requires notice that is rescission of an in absentia deportation order under “reasonably calculated, under the circumstances, to apprise § 242B(c)(3)(A), when petitioner filed to reopen within 180 interested parties of the pendency of the action and afford days of the deportation order due to exceptional them an opportunity to present their objections.” Al- circumstances). Rawahneh v. INS, No. 00-4447, 2002 WL 1021866 (6th Cir. May 17, 2002) (unpublished opinion) (finding no due process Both the immigration court and the Board noted that the violation where aliens failed to have their mail forwarded to 180 day time period prescribed in § 242B(c)(3)(A) could be new address and thus failed to receive notice of OSC subject to equitable tolling due to Muresan’s ineffective hearing). assistance of counsel and, thus, suspended from running until Scorteanu had received actual notice. See Iturribarria v. INS, Unlike the petitioner in Al-Rawahneh, Scorteanu had 321 F.3d 889, 897-98 (9th Cir. 2003) (holding that equitable provided a forwarding address to his attorney, but relied upon tolling is available where petitioner’s attorney engaged in him to notify the INS of that new address and to notify fraudulent or deceptive acts); see also Rodriguez-Lariz v. INS, Scorteanu of his March 26, 1997 hearing date. Muresan’s 282 F.3d 1218, 1224 (9th Cir. 2002) (recognizing equitable subsequent misfeasance and fraud amounted to the type of tolling of deadlines and numerical limits on motions to reopen “exceptional circumstances” contemplated by or reconsider during periods when a petitioner is prevented §§ 242B(c)(3)(A) & (f)(2) of the Act, as material incidents from filing because of deception, fraud, or error, as long as beyond Scorteanu’s control. Section 242B(c)(3)(A) of the the petitioner acts with due diligence in discovering the Act, directs that an in absentia, deception, fraud, or error).

order may be rescinded ... Nevertheless, this court need not decide, in the instant case, whether the statute is subject to equitable tolling because, (A) upon a motion to reopen filed within 180 days after even if this court were to so concede, Scorteanu has failed to the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (f)(2)) No. 01-4271 Scorteanu v. INS 11 12 Scorteanu v. INS No. 01-4271

prove entitlement to equitable relief.4 In Jobe v. INS, 238 respect to the actions to be taken,” as well as any F.3d 96, 100(1st Cir. 2001) (en banc), the First Circuit representations made by counsel to the alien; 2) proof that the reviewed the petition of an alien who had failed to make a movant has informed former counsel of the allegations in prima facie showing of entitlement to equitable tolling of writing, as well as any response received; and 3) a statement § 242B(c)(3)(A)’s time limit. Evidence of Jobe’s insufficient detailing “whether a complaint has been filed with diligence disposed the court to dismiss the petition without appropriate disciplinary authorities regarding such deciding whether the equitable tolling doctrine would apply representation, and if not, why not.” Id.; see also Saakian v. to the statutory provision. Id. Similarly, in the instant case, INS, 252 F.3d 21, 25 (1st Cir. 2001); Lopez v. INS, 184 F.3d this court need not address whether Muresan’s ineffective 1097, 1100 (9th Cir. 1999); Huicochea-Gomez v. INS, 237 assistance of counsel warranted equitable tolling because, F.3d at 699. even after having received actual notice and having retained different counsel, Scorteanu exceeded the statutory time limit Scorteanu needed only to notify former attorney Muresan by waiting until February 12, 2001 to file his motion to of the charge of ineffective assistance of counsel. For his reopen. part, Muresan was not required to submit an affidavit in support of Scorteanu’s charge. In short, Scorteanu has failed Petitioner has averred that this lapse of time did not reflect to prove, as he must, that the lapse of time between March an absence of due diligence, but rather resulted from the 2000 and February of the following year was fostered by an difficulty in locating former counsel Muresan and obtaining exceptional circumstance beyond his control. Consequently, his affidavit pursuant to the requirements of Matter of this court affirms the BIA’s dismissal of Scorteanu’s petition Lozada, 19 I.&N. Dec. 637, 639, 1988 WL 235454 (BIA to reopen proceedings. 1988), aff'd, 857 F.2d 10 (1st Cir.1988). However, Scorteanu’s contention is not persuasive as it represents a misapplication of the procedural requirements detailed in Lozada. There, the BIA stated that when an alien has averred ineffective assistance of counsel, the motion should be supported by 1) an affidavit setting forth “in detail the agreement that was entered into with former counsel with

4 The issue of equitable tolling due to exceptional circumstances has split the circuits. Comp are A nin v. Reno, 188 F.3d 127 3, 12 78 (11th Cir. 1999) (holding that § 242B(c)(3)(A) sets forth a “mandatory and jurisdictional” time bar) with Lopez v. INS, 184 F.3d 10 97, 1100 (9th Cir. 1999) (holding that § 242B(c)(3 )(A)’s time bar is not jurisdictional and thus subject to eq uitable tolling). See also Damon W . Taaffe, Comm ent: Tolling the Deadline for Appealing in Absentia Deportation Orders Due to Ineffective Assistance of Counsel, 68 U .C H I. L. R EV . 1065 (2001) (proposing a distinction between attorney misfeasance and nonfeasance, and allowing misfeasant (or actively misleading) ineffective assistance to constitute an “exceptional circum stance” sufficient to warrant equitably tolling the 180 day appeal dead line).