Bejar v. Atty Gen USA ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
5-28-2003
Bejar v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket 02-1897
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PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1897
________________________________
GRACE BEJAR,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
____________________________
Submitted Under Third Circuit LAR 34.1(a)
January 21, 2003
Before: BECKER, Chief Judge, NYGAARD and AMBRO
Circuit Judges.
(Filed: March 19, 2003)
JOHN D. PEREZ, P.C.
838 Broad Street
Newark, New Jersey 07102
Attorney for Petitioner
ROBERT D. MCCALLUM, JR.
Assistant Attorney General Civil Division
FRANK W. FRASER
Senior Litigation Counsel
MICHELLE E. GORDEN
Senior Litigation Counsel
Office of Immigration Litigation
Civil Division
Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
____________________________
OPINION OF THE COURT
_____________________________
BECKER, Chief Judge.
Petitioner Grace Bejar, an Ecuadorian national, petitions for review of the order of
the Board of Immigration Appeals (“BIA”) dismissing her claim that the Immigration
and Naturalization Service (“INS”) unlawfully removed her from the United States.
Although she alleges ineffective assistance of counsel, lack of notice, and eligibility for
cancellation of removal, we conclude that we lack jurisdiction to review these claims
because Bejar failed to exhaust her administrative remedies by not appealing the in
absentia removal order of the Immigration Judge within the INA’s mandatory 180-day
window. See 8 C.F.R. § 3.23(b)(4)(ii) (2002). The only claim over which we retain
jurisdiction is her allegation that the INS illegally removed her from the United States
before the end of the 30-day period during which she could appeal the INS’s denial of
her motion to reopen, a step which effected an automatic waiver of her right to appeal the
IJ’s decision. We conclude that the INA does not provide for an automatic stay of
removal during this 30-day appeal period, and as Bejar failed to request such a stay, the
INS acted lawfully in removing her before the period lapsed.
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I. Facts and Procedural History
Bejar was admitted lawfully to the United States in 1979 as a permanent resident.
In 1991, she was convicted of receiving stolen property in violation of New Jersey
criminal law, and in 1992 she pled guilty to, and was convicted of, another count of
receiving stolen property under New Jersey law. For this second conviction, Bejar was
sentenced to 364 days in the Passaic County jail, five years probation, and fifty hours of
community service. Approximately four years later, she was arrested again for one count
of third-degree theft and received another 364-day jail term, of which she served three
months.
In 1998, Bejar left the country and traveled to the Dominican Republic for
approximately three weeks. When she returned to the United States, she sought
admission as a lawful returning permanent resident. Based on her criminal convictions,
however, the INS determined that she was not entitled to admission and placed her in
removal proceedings, where it charged her with inadmissibility under 8 U.S.C. §
212(a)(2)(A)(i)(I) as an alien convicted of a crime of moral turpitude. From July 1998
until March 1999, Bejar’s administrative case was continued six times, and she does not
dispute that in each instance she received notice of the rescheduled hearing at the 59th
Street address in New York City that she provided to the immigration court.
In March 1999, the immigration court terminated Bejar’s removal case,
concluding, based on her representations in her application for cancellation of removal,
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that she derived United States citizenship from her parents because they became
naturalized when she was 17 years old. This conclusion was based on her representation
that she was born on May 1, 1964; however, according to the sworn statement that she
completed upon returning to JFK Airport from the Dominican Republic, her true birthday
is May 1, 1963, and the evidence in the record strongly corroborates this prior date and
the resulting implication that she was in fact 18 rather than 17 when her parents became
U.S. citizens. Accordingly, on April 23, 1999, the INS moved to reopen Bejar’s
administrative case. The immigration court granted the agency’s motion, and the
administrative case was reopened on May 10, 1999.
The immigration court scheduled a hearing for Bejar on July 8, 1999, and it
forwarded notice of the hearing to Bejar’s counsel, who does not dispute that he received
it. On July 8, 1999, however, Bejar did not appear for her hearing, and the immigration
court ordered her removed in absentia. The court’s order notes that Bejar previously
admitted the factual allegations in the notice to appear, and that she had conceded
removability. Bejar did not appeal this removal order, and in June 2001 the INS served
upon her a Notice to Surrender, directing her to report for removal to Ecuador on August
14, 2001. She reported to the INS and was placed in custody.
On August 17, 2001, Bejar filed a motion to reopen her removal case. Through
counsel, she claimed that while her attorney received the notice of hearing in her case set
for July 8, 1999, he was unable to locate and communicate with her despite his efforts to
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do so by phone and letter. She explains that during the relevant time she was not living
at the address she had provided to the court, although she submits that her parents were
living at that address and that they reported receiving no communication from her
attorney. At all events, she claims that she received no notice of her hearing before it
occurred.
The immigration court denied Bejar’s motion to reopen on September 17, 2001; it
noted that her counsel was served with the notice of hearing, and that as a legal matter
notice to the attorney constituted notice to her. See 8 U.S.C. § 1229(a)(1); In re N-K &
V-S-, Int. Dec. 3312 (BIA 1997). As a factual matter, the judge observed that the
allegations in Bejar’s motion to reopen were not supported or corroborated by any
affidavit or declaration, and that as such, they were not entitled to any evidentiary weight.
(A.R. 52) (citing Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503 (BIA 1980)). The IJ
further noted that, so far as she had informed the court, Bejar was still residing at the
same address where she had lived in 1999 when her case was reopened. Under these
circumstances, the IJ concluded, her alleged failure to receive notice did not constitute a
ground to reopen her case.
Significantly, as the BIA had denied Bejar’s motion to reopen on September 17,
2001, she had until October 17, 2001 (one month) to appeal that denial. However, as
Bejar had requested no administrative stay, the INS enforced the final removal order and
returned Bejar to Ecuador on October 9, 2001, more than a week before her time to
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appeal lapsed. After she was deported, Bejar, through new counsel, filed an
administrative appeal of the court’s decision, contending that: (1) she did not receive
proper service of notice of her removal hearing; and (2) it was unlawful to remove her
during the time in which she could appeal the IJ’s denial of her motion to reopen. In a
decision dated January 31, 2002, the BIA concluded that Bejar’s departure from the
United States prior to taking an appeal from the IJ’s decision constituted a waiver of her
right to appeal, citing to 8 C.F.R. § 3.3(d). It further determined that her departure
resulted in the withdrawal of her motion to reopen removal proceedings, citing to 8
C.F.R. § 3.2(d). Accordingly, the BIA returned the record to the immigration court
without further action, concluding that “there [was] nothing . . . pending before [it].”
(A.R. 14.)
Bejar sought reconsideration of the BIA’s decision, again challenging the
lawfulness of the INS’s enforcement of the IJ’s final removal order. On March 21, 2002,
the BIA issued a decision dismissing Bejar’s appeal on the ground that it “fail[ed] to
meet essential statutory or regulatory requirements.” (A.R. 2) (citing 8 C.F.R. §
3.1(d)(2)(i)(G)). Bejar now appeals that decision. We have jurisdiction pursuant to
Section 242(a) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a) (2000), as
amended by the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L.
104-208, 110 Stat. 3009 (1996). We review for abuse of discretion the BIA’s decision
that it lacked jurisdiction to consider Bejar’s appeal because she had departed from the
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United States. Sewak v. INS, 900 F.2d 667 (3d Cir. 1990).
II. Discussion
A.
Bejar makes four arguments in her appeal. First, she claims that the IJ erred in
removing her in absentia because she failed to receive notice pursuant to Section 239 of
the Immigration and Nationality Act. Second, she argues that her due process rights
were violated when she allegedly received ineffective assistance of counsel during
proceedings before the immigration court, and that this violation warrants reopening her
proceedings. Third, she contends that she satisfies the statutory criteria for the relief of
cancellation of removal pursuant to Section 240A(a) of the Immigration and Nationality
Act. Finally, Bejar asserts that the INS violated 8 C.F.R. §§ 3.23(b)(1)(v) and 3.23
(b)(4)(iii)(C) by removing her before her time for filing an appeal had lapsed.
In assessing these claims, it is critical to note that we are reviewing only the BIA’s
March 21, 2002 denial of Bejar’s motion to reconsider its January 31, 2002 decision.
That January 31, 2002 decision raised but one question: whether Bejar’s removal was
lawful. Indeed, neither the IJ nor the BIA could have considered Bejar’s ineffective
assistance of counsel or cancellation of removal claims, for she was ordered removed in
absentia on July 8, 1999, yet she did not move to reopen her case until August 17, 2001,
a period of more than two years. The governing regulations state that a removal order
entered in absentia may be rescinded only upon a motion to reopen filed within 180 days
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after the date of removal, if the alien demonstrates that the failure to appear was because
of exceptional circumstances, or at any time if the alien demonstrates that she did not
receive notice in accordance with § 239. 8 C.F.R. § 3.23(b)(4)(ii) (2002). Bejar’s
motion to reopen was therefore untimely absent exceptional circumstances or failure of
notice. Neither is present.
Regarding exceptional circumstances, in In re Lei, 22 I. & N. Dec. 113, Int. Dec.
3356 (BIA 1998), the BIA held that alleged ineffective assistance of counsel is not an
exception to the 180-day regulatory time limit to file a motion to reopen an in absentia
case.1 Similarly, although Bejar alleges that she did not receive notice of her removal
hearing, the regulations make clear that when an alien is represented, service on the
alien’s attorney constitutes notice to the alien. 8 C.F.R. § 292.5 (2002) (“Whenever a
person is required by any of the provisions . . . to give or be given notice; [or] to serve or
be served with any paper[,] . . . such notice [or] service . . . shall be given by or to, served
by or upon, made by, or requested of the attorney, or representative of record.”). This
1
We note that one commentator has proposed drawing a distinction between attorney
misfeasance and nonfeasance, and allowing misfeasant (or actively misleading)
ineffective assistance to constitute an “exceptional circumstance” sufficient to warrant
equitably tolling the 180-day appeal deadline. See Damon W. Taaffe, Comment: Tolling
the Deadline for Appealing in Absentia Deportation Orders Due to Ineffective Assistance
of Counsel, 68 U. C HI. L. R EV. 1065 (2001). Even were we to adopt this approach,
however, Bejar’s case is one involving only nonfeasance, for her attorney did not
affirmatively mislead her about the need to file a motion or to appear in court. Therefore,
even under this commentator’s proposed expansion of equitable tolling in this area,
Bejar’s counsel did not render assistance sufficiently ineffective to justify tolling the 180-
day appeal deadline.
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Court is in accord. See Sewak v. INS, 900 F.2d 667, 673 (3d Cir. 1990) (“[I]f . . . [the
attorney] was retained by [the petitioner], or by someone authorized to act on [the
petitioner’s] behalf, [the petitioner’s] argument that he lacked notice of the hearing
would fail.”). These precedents make clear that we cannot entertain an appeal based on
Bejar’s allegation that she personally failed to receive notice, for it is undisputed that her
former attorney received timely notice of her removal hearing, and service upon her
attorney is considered to be legally sufficient.
B.
Because Bejar received constructive notice and no exceptional circumstance is
present, we lack jurisdiction to review the legal basis for the IJ’s removal order itself.
Section 1252 of the INA requires an alien to “exhaust[] all administrative remedies
available to [her] as of right” prior to seeking judicial review of a final administrative
removal order, 8 U.S.C. § 1252(d) (2000), and we have held that an alien’s failure timely
to appeal to the BIA the IJ’s denial of his motion to reopen constitutes a failure to
exhaust administrative remedies. See Bak v. INS, 682 F.2d 441, 442-43 (3d Cir. 1982)
(holding that the Court lacked jurisdiction over the petition for review because the aliens
did not appeal the IJ’s denial of their motion to reopen to the Board, resulting in failure
to exhaust their administrative remedies); Marrero v. INS, 990 F.2d 772, 777-78 (3d Cir.
1993) (dismissing the alien’s petition for review based on his failure to file a motion to
reopen his deportation case when he had been ordered deported in absentia).
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Our lack of jurisdiction extends to Bejar’s arguments that she received ineffective
assistance of counsel and that she satisfied the statutory criteria for the relief of
cancellation of removal pursuant to INA Section 240A(a). Therefore, the only issue
before us is whether Bejar’s removal was unlawful because she was removed prior to the
expiration of the thirty-day period during which she could challenge the IJ’s denial of her
motion to reopen — the immigration court denied Bejar’s motion to reopen on
September 17, 2001, and she was removed on October 9, 2001. The BIA concluded that
it lacked jurisdiction to consider this argument, for the regulations state that “[d]eparture
from the United States of a person who is the subject of deportation proceedings, prior to
the taking of an appeal from a decision in his or her case, shall constitute a waiver of his
or her right to appeal.” 8 C.F.R. § 3.3(e) (2002). This Court, however, retains
jurisdiction to consider whether Bejar’s removal was illegal, for after the enactment of
the Illegal Immigration Reform and Immigrant Responsibility Act, an alien’s removal
from the United States does not divest a federal court of appeals from considering the
claims raised in a petition for review. See Tapia-Garcia v. INS, 237 F.3d 1216, 1217
(10th Cir. 2001).
C.
We are satisfied that the INS acted lawfully when it removed Bejar before her
time to appeal had run. Under the governing regulations, Bejar’s removal was
automatically stayed only during the time period that the motion to reopen her removal
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case was pending. 8 C.F.R. § 3.23(b)(4)(ii) (2002). This period ended on September 17,
2001, the date on which the IJ denied as untimely her motion to reopen. Neither the INA
nor the regulations provides for an automatic stay of an alien’s removal during the 30-
day period for an alien to appeal any decision by the IJ denying a motion to reopen.
Because other comparable sections of the INA expressly provide for automatic stays
during the appeal period, we must assume that the lack of an automatic stay provision in
this context was intentional. Compare 8 C.F.R. § 3.6(b) (requiring the stay of an alien’s
removal during the 30-day appeal period from the denial of a motion to reopen filed in in
absentia deportation and exclusion cases under 8 C.F.R. § 3.23(b)(4)(iii)) with 8 C.F.R. §
3.23(b)(4)(ii) (providing for no such automatic stay in in absentia removal cases). To be
sure, an alien in an in absentia removal case may seek a stay of her removal pending the
disposition of her appeal, and it is within the BIA’s discretion to grant such a stay. See 8
C.F.R. § 3.6(b) (2002) (“The Board may, in its discretion, stay deportation while an
appeal is pending” from any order of the IJ denying a motion to reopen.). Here,
however, Bejar did not request a stay of her removal, so the INS’s decision to enforce the
IJ’s final removal order was lawful.
Because we conclude that the INS acted lawfully in removing Bejar before her
time to appeal had lapsed, we will deny the petition to review the BIA’s order dismissing
Bejar’s appeal.
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