Ajose, Olajumoke A. v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-4243
OLAJUMOKE ABIOLA AJOSE,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
ARGUED JANUARY 26, 2005—DECIDED MAY 18, 2005
____________
Before EASTERBROOK, RIPPLE, and EVANS, Circuit Judges.
EASTERBROOK, Circuit Judge. A citizen of Nigeria,
Olajumoke Abiola Ajose entered the United States from
Mexico by stealth in 1999. After being caught, she claimed
asylum on the ground that she would be subject to religious
persecution if repatriated. The immigration judge disbe-
lieved her story, and the Board of Immigration Appeals
dismissed the appeal in February 2003 after her lawyer
neglected to file a brief. Eight months later Ajose filed a
motion to reopen, asserting a different ground of asylum:
that Ajose’s daughter, born in the United States in 2001,
2 No. 03-4243
could be subject to genital mutilation were Ajose returned
to Nigeria. The BIA denied that motion as untimely for two
reasons: first, motions to reopen normally must be filed
within 90 days of the Board’s initial decision, see 8 C.F.R.
§1003.2(c)(2), and this was more than five months late;
second, reopening after the 90 days depends on changed
circumstances in the alien’s native land, and Ajose did not
contend that conditions in Nigeria have deteriorated since
the hearing, creating a problem that did not exist earlier.
Nor did she address the significance of the fact that her
daughter, as a U.S. citizen, need not accompany her to
Nigeria. See Oforji v. Ashcroft, 354 F.3d 609 (7th Cir. 2003);
Olowo v. Ashcroft, 368 F.3d 692 (7th Cir. 2004). Ajose could
and should have raised at the hearing (held the year after
her daughter’s birth), and on direct appeal to the Board,
any hazards that removal would have posed.
Ajose’s petition for review presents only the denial of the
motion to reopen, for her lawyer allowed the time to obtain
judicial review of the initial decision to lapse. As the period
is jurisdictional no excuse is availing. See Stone v. INS, 514
U.S. 386 (1995). But the administrative time limit on a
motion to reopen, and the changed-circumstance require-
ment, are not jurisdictional, see Joshi v. Ashcroft, 389 F.3d
732, 734-35 (7th Cir. 2004), leading Ajose to contend that
the Board should have entertained her contentions. Yet she
does not attempt to demonstrate changed circumstances,
which under the Board’s rules can open a window for a
belated motion. Instead she contends that delay was
justified because her lawyer did not receive notice of the
Board’s original decision.
Whether the lawyer had actual knowledge of the decision
is hard to determine. The Board says that notice was sent
and not returned as undeliverable. Perhaps counsel re-
ceived but misfiled it. He blames the Postal Service for
failing to reroute the notice: his law firm dissolved in mid-
February 2003, and he formed a new partnership at a
No. 03-4243 3
different address later that month. Maybe the Postal Service
delivered the notice to counsel’s ex-partner, who neglected
to forward the mail. Instead of relying on the Postal Service
to determine where a legal document should go when the
address on the envelope is obsolete, counsel should notify
the Board, so that it can address the notice correctly.
Although the move was contemporaneous with the Board’s
decision, it would have been easy to tell the Board earlier,
while the change was in prospect. Similarly counsel could
have called the Board’s hotline to determine whether orders
concerning any of his clients had been entered during the
transition. (It was such an inquiry, made in September 2003
at his client’s behest, that alerted counsel to February’s de-
cision.) Even a notice in March or April 2003 likely would
have induced the Board to send a fresh copy of its order,
and thus afforded counsel time to meet the 90-day deadline
for a motion to reopen.
Lawyers’ errors in civil proceedings are imputed to their
clients. Pioneer Investment Services Co. v. Brunswick
Associates Limited Partnership, 507 U.S. 380, 396-97 (1993);
National Hockey League v. Metropolitan Hockey Club, Inc.,
427 U.S. 639 (1976); Link v. Wabash R.R., 370 U.S. 626,
633-34 (1962); Societé Internationale v. Rogers, 357 U.S.
197, 212 (1958). Whether or not any of the Board’s rules
requires counsel to file change-of-address notices (which it
does, see 8 C.F.R. §1003.38(e)), prudence demands that
step. Babatunde A. Irukera, who represented Ajose before
the Board and remains her lawyer to this day, tells us that
he does no more than the rules require, and because he
could not find a rule compelling lawyers to file change-of-
address forms he saw no reason to tell the Board about his
relocation. This implies that he is a menace to his clients;
it does not require the Board to excuse his nonfeasance and
extend indefinitely the time for filing motions. The Board
enjoys considerable leeway when dealing with motions to
reopen, see INS v. Doherty, 502 U.S. 314, 323 (1992), and
did not abuse that discretion in these proceedings.
4 No. 03-4243
Another equitable escape hatch to which Ajose alludes, 8
U.S.C. §1229b(b)(1)(D), is available only to aliens who have
been in the United States for 10 years. She is well short of
that mark.
The petition for review is denied.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-18-05