Singh v. Ashcroft ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60268
Summary Calendar
AVTAR SINGH,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A77-387-108
February 24, 2003
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Avtar Singh has filed a petition for review of an order by the
Board of Immigration Appeals (BIA) denying his motion to reopen his
deportation proceeding, in which an in abstentia order of removal
was issued. Singh argues that he did not receive notice of the
removal hearing. He also contends that his illness at the time of
the hearing presented exceptional circumstances that justified his
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
failure to appear. Singh further asserts that the BIA failed to
give proper consideration to the fact that he was a victim of fraud
by an imposter posing as an attorney and that his failure to appear
was the result of ineffective assistance of counsel.
The BIA did not abuse its discretion in denying the motion to
reopen because the record reflects that the Immigration and
Naturalization Service (INS) properly sent the notice to Singh’s
counsel of record, Lionel Perez, who forwarded it to the address
provided by Singh. The INS therefore satisfied its duty to provide
Singh with notice of the hearing.1 The record additionally
demonstrates that Singh moved and failed to provide the INS or his
counsel with his new address as required by the law.2 Thus, Singh
had a reasonably opportunity to be present during the removal
hearing, and his failure to attend was without reasonable cause.3
Singh’s argument that his illness presented exceptional
circumstances justifying his absence is without merit.
“Exceptional circumstances” refers to circumstances “beyond the
1
See 8 U.S.C. § 1229(a)(1).
2
See 8 U.S.C. § 1305. Although Singh asserts that he moved
to California in October 1998, the record indicates that Singh did
not file a change of address form until June 1999, months after the
date of the hearing in question, January 13, 1999, and well after
notice of the hearing was sent to his counsel of record, Perez, on
August 5, 1998.
3
See United States v. Estrada-Trochez, 66 F.3d 733, 736 (5th
Cir. 1995).
2
control of the alien.”4 If, as Singh contends, he had no knowledge
of the hearing date, his illness was irrelevant because he would
not have appeared even if in good health. Assuming that Singh was
aware of the date of the hearing, he was required to make a
reasonable effort to avoid the entrance of an in abstentia order.5
When he became ill, Singh could have contacted the INS or his
counsel to seek a continuance of the hearing. Singh has not
demonstrated that there were exceptional circumstances justifying
rescission of the in abstentia order of deportation.6
Insofar as Singh asserts that his failure to appear was the
result of Jaswinder Singh’s ineffective assistance, the BIA
correctly determined that the imposter’s lack of representation was
not relevant because Singh had competent counsel appearing on his
behalf during the removal proceedings.7
4
See 8 U.S.C. § 1229a(e)(1).
5
See Magdaleno de Morales v. INS, 116 F.3d 145, 148-49 (5th
Cir. 1997).
6
See id.7
As the Immigration Judge reasoned, although “[a]
respondent’s failure to attend a hearing due to fraudulent
representation by a person claiming to be an attorney could be
deemed exceptional circumstances,” such was not the case here,
because Singh “was in fact represented by [Lionel Perez], known in
the area for his expertise in immigration law. If [Singh] failed
to stay in contact with him, then it was a self-made detriment.”
3
Singh has not shown that the BIA abused its discretion in
denying his motion to reopen the proceedings. The petition for
review is DENIED.
4