Stelian Marinov v. Eric Holder, Jr. , 687 F.3d 365 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3643
S TELIAN N. M ARINOV ,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an of Order of the
Board of Immigration Appeals.
No. A089 303 449
A RGUED A PRIL 13, 2012—D ECIDED A UGUST 1, 2012
Before B AUER, K ANNE, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Stelian Marinov, a native and
citizen of Bulgaria, petitions for review of an order of
the Board of Immigration Appeals upholding an Immigra-
tion Judge’s denial of his motion to reopen an in absentia
removal order. Marinov argues that the Board erred in
finding he received adequate notice of his removal
hearing and in concluding that he failed to satisfy the
2 No. 11-3643
standards set forth in Matter of Lozada, 19 I. & N. Dec. 637(BIA 1988), for claiming ineffective assistance of coun-
sel. Finding no error, we deny the petition for review.
I. Background
Marinov entered the United States in May 2005 as a
nonimmigrant exchange visitor, had his status changed
to that of a nonimmigrant visitor, and remained in the
United States beyond the date authorized. He applied
for asylum, and his application was referred to the im-
migration court. The Department of Homeland Security
(“DHS”) served Marinov with a Notice to Appear (“NTA”),
charging him with removability pursuant to 8 U.S.C.
§ 1227(a)(1)(B), as an alien admitted as a nonimmigrant
who remained in the United States longer than authorized.
An attorney entered an appearance on Marinov’s
behalf, admitted the allegations in the NTA, conceded
removability, and sought transfer of venue from the
immigration court in Cleveland, Ohio, to Chicago, Illinois.
The motion was granted. On December 18, 2009, the
immigration court served notice by mail to Marinov’s
attorney of record at the address provided on his entry
of appearance form, advising that a hearing in Marinov’s
case was set for August 3, 2010. The attorney attended
the hearing; Marinov did not. The Immigration Judge
(“IJ”) found that notice of the hearing was given
to Marinov, he had a reasonable opportunity to be
present but did not appear, and no reasonable cause
was given for his absence. The IJ therefore ordered
No. 11-3643 3
Marinov removed in absentia pursuant to 8 U.S.C.
§ 1229a(b)(5)(A).
On September 24, 2010, Marinov, represented by
new counsel, filed a motion to reopen removal pro-
ceedings based on a lack of notice and exceptional cir-
cumstances. He argued that he was not provided
with actual notice of the hearing because notice was not
mailed to his home address, although he conceded
notice was sent to his counsel. He also argued that he
failed to appear for his hearing because of the ineffective
assistance of his former counsel in failing to notify him
of the hearing date. Marinov claimed that it was not
until the day before the hearing that his former counsel
first notified him of the hearing date by leaving a voice
message. Marinov did not listen to the message until
the morning of the hearing. By that time, however, it was
too late for him to appear at the hearing. (He lived in
Wisconsin Dells, Wisconsin, approximately 200 miles
from Chicago.) Marinov also alleged that his former
counsel made several factual misrepresentations to the IJ
at the hearing. The motion to reopen included a copy
of Marinov’s attorney disciplinary complaint, stamped
received by the Illinois Attorney Registration and Disci-
plinary Commission (“ARDC”) on September 21, 2010.
The complaint detailed Marinov’s relationship with his
former counsel and alleged that counsel did not notify
him of the hearing until the day before and misrepre-
sented to the IJ the reasons for Marinov’s absence.
On October 1, 2010, the IJ denied Marinov’s motion
to reopen. She decided that he received proper notice of
4 No. 11-3643
the hearing because notice was mailed to his counsel of
record. The IJ recognized that ineffective assistance
of counsel may constitute exceptional circumstances
warranting a reopening, but found that Marinov failed
to comply with the standards of Matter of Lozada for
reopening based on ineffective assistance of counsel.
Specifically, she found that he had not provided evidence
that his former counsel was informed of the allegations
against him or afforded an opportunity to respond.
Marinov appealed to the Board, which agreed that
he received proper notice because it was undis-
puted that written notice was provided to his counsel
of record. The Board recognized Marinov’s claim that
former counsel failed to notify him of the hearing date
as an ineffective-assistance-of-counsel claim, which can
constitute exceptional circumstances for purposes of
rescinding an in absentia removal order. But it agreed
that Marinov had not satisfied all the Matter of Lozada
criteria, namely the requirement that counsel be notified
of the allegations and allowed an opportunity to respond
before the allegations of ineffective assistance are pre-
sented to the Board. It rejected the argument that the
ARDC complaint satisfied this requirement, concluding
that the bar complaint and notice to counsel were
two separate requirements. The Board also noted that
Marinov filed his motion to reopen only 3 days after
filing his ARDC complaint, which denied former
counsel any realistic opportunity to have received the
allegations and respond to them. And it concluded
based on the ARDC complaint procedures that it wasn’t
clear the attorney would be notified of the allegations
No. 11-3643 5
in the complaint. Thus, the Board dismissed the appeal
and Marinov sought judicial review.
II. Analysis
Marinov first argues that the Board erred in finding
that he received adequate notice of his August 3, 2010
hearing. His argument is based on the fact that he did not
receive personal service. He concedes his attorney re-
ceived notice but argues that counsel failed to reasonably
inform him of the hearing. Second, Marinov argues that
the Board erred in finding that he failed to satisfy the
Lozada requirements for raising ineffective assistance of
counsel. This argument is based on Marinov’s filing of
an ARDC complaint, which he claims includes a provi-
sion for notification to the attorney. Third, Marinov
argues that former counsel’s false statements and repre-
sentations to the IJ at the hearing constitute per se inef-
fective assistance of counsel and justify reopening the
proceedings even if Marinov did not comply with Lozada.
We have jurisdiction to review the Board’s decision
upholding the denial of a motion to reopen removal
proceedings. Kucana v. Holder, 130 S. Ct. 827, 831 (2010);
Lin Xing Jiang v. Holder, 639 F.3d 751, 754 (7th Cir. 2011).
We review the decision for an abuse of discretion, up-
holding it unless it was made without rational explana-
tion, inexplicably departed from established policies,
or rested on an impermissible basis. Lin Xing Jiang, 639
F.3d at 754.
“Any alien who, after written notice . . . has been pro-
vided to . . . [his] counsel of record, does not attend a
6 No. 11-3643
proceeding under this section, shall be ordered removed
in absentia” if it is established that written notice
was provided and the alien is removable. 8 U.S.C.
§ 1229a(b)(5)(A). Such an order may be rescinded if the
alien files a motion to reopen and establishes that he
did not receive proper notice or “that the failure to
appear was because of exceptional circumstances.” Id.
§ 1229a(b)(5)(C). Mailing notice of a removal proceeding
date to the alien’s attorney of record at the correct
address constitutes notice to the alien. 8 U.S.C.
§ 1229(a)(2)(A); Pervaiz v. Gonzales, 405 F.3d 488, 490
(7th Cir. 2005); 8 C.F.R. § 292.5(a). Marinov does not
dispute that notice was sent to his attorney of record at
the correct address. Therefore, the Board correctly
decided that Marinov received proper notice of the
August 3 hearing.
Ineffective assistance of counsel can constitute an
exceptional circumstance that excuses an alien’s failure
to appear and allows reopening of the removal pro-
ceedings and rescission of a removal order. In re Grijalva-
Barrera, 21 I. & N. Dec. 472, 473-74 (BIA 1996). However,
the alien must satisfy the criteria set forth in Matter of
Lozada for claiming ineffectiveness of counsel: “(1) submit
an affidavit establishing that she had an agreement
with counsel to represent her and detailing its terms;
(2) present evidence that she has given notice to her
counsel of the ineffectiveness claim and an opportunity
to respond to the allegations, and include any response
she has received; and (3) if the attorney violated his
ethical or legal obligations, show that she has filed a
complaint with the governing disciplinary authorities or
No. 11-3643 7
explain why she has not done so.” Lin Xing Jiang, 639 F.3d
at 755 (citing Matter of Lozada, 19 I. & N. Dec. at 639). “We
have sustained repeatedly the validity of these require-
ments.” Id. (citing cases). Satisfying them “is a necessary
condition to obtaining reopening on the basis of ineffec-
tive assistance of counsel.” Id.
The Board determined that although Marinov met two
of the requirements, he did not comply with the
notification-to-counsel requirement. Marinov asserts
that he followed the procedures of the Illinois ARDC for
attorney complaints and argues that this satisfied Lozada’s
notification requirement. He maintains that attorneys
are generally notified of complaints through the ARDC
process. Even if this is correct, there is no indication
that attorneys are always notified of a complaint, as
evidenced by the ARDC procedures: “If we decide to
investigate, our investigation generally includes sending
a copy of the information that you provided to the
lawyer being investigated. We will ask the lawyer to
respond. Typically, the lawyer will send us his response
about two to four weeks thereafter.” http://www.iardc.org/
htr_filingarequest.html (last visited July 27, 2012). And
as the Board observed, the notification requirement and
the disciplinary complaint requirement are two separate
and distinct requirements. See Patel v. Gonzales, 496
F.3d 829, 831-32 (7th Cir. 2007) (explaining the im-
portance of Lozada’s two-step notification requirement).
Moreover, Marinov filed his motion to reopen only
3 days after the ARDC had received his bar complaint.
He does not challenge the Board’s conclusion that his
8 No. 11-3643
timing denied former counsel any realistic opportunity
to receive and respond to the allegations of ineffective-
ness. The Board’s conclusion is reasonable, particularly
given that the ARDC recognizes that, typically, a lawyer
will respond to a complaint 2 to 4 weeks after the ARDC
sends a copy of the complaint to the lawyer. Even if
filing a bar complaint could in some circumstances
satisfy both of Lozada’s notice requirements, it did not do
so here when Marinov’s former counsel had an inade-
quate opportunity to respond to the allegations. See
Asaba v. Ashcroft, 377 F.3d 9, 12 (1st Cir. 2004) (con-
cluding that mailing notice to counsel 3 days before
filing motion to reopen “does not provide [counsel] an
‘adequate opportunity to respond’ ”).
Marinov argues that his ineffectiveness claim is not
meritless and there was no collusion with former
counsel, which are some of the goals to be advanced by
Lozada’s requirements. See 19 I & N. Dec. at 639. Nonethe-
less, we have upheld the Board’s exercise of discretion
where its decision is based on noncompliance with
Lozada. See, e.g., Ghaffar v. Mukasey, 551 F.3d 651, 656 (7th
Cir. 2008) (“Ghaffar did not comply with any of the
Lozada requirements. Consequently, the Board acted
well within its rights to deny his motion for remand.”);
Stroe v. I.N.S., 256 F.3d 498, 504 (7th Cir. 2001) (“[W]e
have difficulty understanding how an alien who fails
to comply with the Board’s criteria can succeed in chal-
lenging its decision.”).
Finally, Marinov argues that his former counsel’s mis-
representations at the removal proceeding were per se
No. 11-3643 9
ineffective assistance, and he implies that per se ineffec-
tive assistance should be excepted from Lozada’s require-
ments. Yet Marinov did not raise this argument with
the Board. He claims that he raised the matter of coun-
sel’s misrepresentations to the IJ at the hearing. But he
did not argue that the misrepresentations waived the
necessity of compliance with Lozada. Instead, he argued
that the IJ erred in finding that he failed to satisfy the
Lozada requirements. So the argument that claims of per se
ineffective assistance should be excepted from Lozada is
unexhausted and we cannot consider it. Alvarado-Fonseca
v. Holder, 631 F.3d 385, 389-91 (7th Cir. 2011).
In any event, we have not made an exception to
Lozada’s requirements for per se ineffectiveness. Cf. Stroe,
256 F.3d at 503-04 (noting that some cases have allowed
an alien who has not complied with Lozada to establish
ineffective assistance of counsel but the cases were
mainly from the Ninth Circuit, which has been hostile
to the Board). And Marinov offers no reason why
making such an exception would be consistent with
Lozada’s purposes. See, e.g., Lozada, 19 I. & N. Dec. at 639
(explaining that “[t]he high standard announced here
is necessary if we are to have a basis for assessing the
substantial number of claims of ineffective assistance
of counsel that come before the Board” and “the potential
for abuse is apparent where no mechanism exists for
allowing former counsel, whose integrity or competence
is being impugned, to present his version of events if he
so chooses, thereby discouraging baseless allegations”).
Furthermore, the decisions that excuse compliance
with Lozada involve ineffective assistance that is ap-
10 No. 11-3643
parent from the record. See, e.g., Rodriguez-Lariz v. I.N.S.,
282 F.3d 1218, 1227 (9th Cir. 2002) (petitioners relieved
from complying with Lozada where record established
that counsel failed to timely file applications for suspen-
sion of deportation). Without any response to Marinov’s
allegations by former counsel (such as an admission
that counsel misrepresented the facts), it cannot be
said that counsel’s representations at the hearing con-
stituted per se ineffectiveness.
III. Conclusion
The Board did not abuse its discretion in upholding
the IJ’s denial of Marinov’s motion to reopen. We D ENY
the petition for review.
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