Andre Hippolyte v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 19, 2007
No. 06-13943 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A97-200-833
ANDRE HIPPOLYTE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 19, 2007)
Before TJOFLAT, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Andre Hippolyte (“Hippolyte”), a native and citizen of Haiti, through
counsel, seeks review of the decisions of the Board of Immigration Appeals
(“BIA”) denying his motion for an extension to file a brief out of time, motion to
reconsider, and claim for ineffective assistance of counsel regarding an earlier
denial of an application to adjust status under the Haitian Refugee Immigration
Fairness Act (“HRIFA”), Pub. L. No. 105-277, § 902, 112 Stat. 2681-538; see also
8 C.F.R. § 245.15.
On appeal, Hippolyte argues that (1) the BIA denied him due process of law
when it did not act upon his motion for an extension to file a brief out of time and
extend the period for filing his brief, (2) the briefing schedule was subject to
equitable tolling to prevent injustice, and (3) he was denied effective assistance of
counsel, which substantially and directly prejudiced his request for HRIFA relief.
In addition, Hippolyte argues that (4) the BIA erred as a matter of law in denying
his motion to reconsider because he was eligible for an adjustment of status under
HRIFA. We lack jurisdiction to consider Hippolyte’s first three arguments;
therefore, we dismiss his petition in part. After careful review of the briefs and the
record on appeal, we find with respect to Hippolyte’s fourth and final argument
that the BIA did not abuse its discretion when it denied his motion for
reconsideration. Consequently, we deny his petition in part.
BACKGROUND
Hippolyte’s former counsel, Troy Harris (“Harris”) failed to timely file
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required documentation, which resulted in the dismissal of Hippolyte’s HRIFA
application. Through his present counsel, William Pryor (“Pryor”), Hippolyte
appealed the decision of the Immigration Judge (“IJ”) that ordered his removal to
Haiti. The BIA received Hippolyte’s notice of appeal on April 6, 2005.
Hippolyte’s new attorney waited until October 13, 2005, when he received
the hearing transcript, to begin perfecting his Lozada 1 claim for ineffective
assistance of counsel. The briefing schedule set November 3, 2005 as the deadline
for Hippoyte to submit his brief to the BIA. On October 31, 2005, Pryor filed a
request with the BIA for a sixty-day extension of the briefing schedule.2 The
request stated only that counsel had waited for the transcript to determine if an
ineffective assistance of counsel claim was appropriate, had determined that such a
claim was appropriate, and needed additional time to comply with the BIA’s
procedural requirements. The BIA did not grant the request for an extension.
The BIA received Hippolyte’s appeal brief on December 2, 2005, twenty-
nine days after the due date. The BIA rejected the brief as untimely and instructed
Hippolyte’s counsel to re-submit the original brief along with a motion to accept
late filing. On December 27, 2005, the BIA received the motion to accept the late-
1
Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) (setting forth the procedural
requirements to establish a claim of ineffective assistance of counsel).
2
Interestingly, the briefing schedule itself stated that the BIA had a policy to allow only
one extension of up to twenty-one days.
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filed brief, in which Pryor stated that he could not have complied with the Lozada
requirements by November 3, 2005, based on the October 13, 2005 receipt of the
transcript. On January 12, 2006, the BIA denied the motion explaining that the
stated reasons for submitting an untimely brief were insufficient.
The BIA dismissed Hippolyte’s appeal on April 28, 2006. Hippolyte did not
seek judicial review of this decision. Instead, he filed a motion for reconsideration
on May 25, 2006, in which he reiterated the merits of his ineffective assistance of
counsel claim. He argued that the BIA’s “failure to address the ‘Lozada’ issues
merits reconsideration of this appeal’s denial.” On June 26, 2006, the BIA denied
the motion to reconsider. Hippolyte timely filed a petition for judicial review of
the BIA’s denial of reconsideration and moved for a stay of removal. On August
18, 2006, this Court denied the motion for stay.
DISCUSSION
Subject Matter Jurisdiction
We must “inquire into our own jurisdiction whenever it may be lacking.”
Alexis v. U.S. Att’y Gen., 431 F.3d 1291, 1293 (11th Cir. 2005). “Moreover, we
determine subject matter jurisdiction de novo.” Id.As a general matter, the Haitian Refugee Immigration Fairness Act of 1998
“enumerates various conditions under which an alien who is a national of Haiti
may apply to have his or her status adjusted to that of an alien lawfully admitted to
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this country for permanent residence.” Id. Because Hippolyte was married to
Karlyne Abel Hippolyte, who was granted permanent resident status under HRIFA,
Hippolyte sought an adjustment of status as her dependent. However, “[a]
determination by the Attorney General as to whether the status of any alien should
be adjusted under this section is final and shall not be subject to review by any
court.” HRIFA § 902(f); see also 8 C.F.R. § 245.15(v). Because decisions by an
IJ or the BIA denying relief under HRIFA are final and not subject to review by
any court, we do not have jurisdiction to review any claim by Hippolyte relating to
the denial of relief under HRIFA. See Alexis, 431 F.3d at 1293-1294.
To the extent that the BIA issues a ruling which we may review on appeal, a
petition for review must be filed within 30 days after the date of the final order. 8
U.S.C. § 1252(b)(1). A motion to reconsider does not toll this 30-day period. See
Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1350 (11th Cir. 2005) (per curiam)
(citing Stone v. INS, 514 U.S. 386, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995)).
Because Hippolyte’s petition for review was filed on July 20, 2006, his petition is
timely as to the BIA’s denial of his motion to reconsider on June 26. Nevertheless,
it is not timely as to the BIA’s April 28 order denying his request for adjustment of
status under HRIFA and dismissing his appeal.
In addition, even assuming that a right to judicial review of the BIA’s April
28 decision existed, “‘[a] court may review a final order of removal only if . . . the
5
alien has exhausted all administrative remedies available to the alien as of right.’”
Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir. 2003) (quoting 8 U.S.C.
§ 1252(d)(1)). The exhaustion requirement affords the BIA “the opportunity to
discover and correct [its] own error.” Id. at 1325 (alteration in original; internal
quotation marks omitted). “We have interpreted that requirement to be
jurisdictional, so we lack jurisdiction to consider claims that have not been raised
before the BIA.” Id. at 1323.
Constitutional challenges and some due process claims do not require
exhaustion because the BIA does not have the authority to adjudicate those claims.
Id. at 1325. However, where the BIA can provide a remedy to the constitutional
claim, “the exhaustion requirement applies with full force.” Id. (holding that an
alien should have exhausted his due process claim that the IJ’s and BIA’s
application of an immigration statute violated the Constitution, because “[i]t was
within the BIA’s authority to reconsider and change its decision”). “Due process is
satisfied only by a full and fair hearing.” Ibrahim v. INS, 821 F.2d 1547, 1550
(11th Cir. 1987). The INA provides that “the alien shall have a reasonable
opportunity . . . to present evidence on the alien’s own behalf . . . .” INA §
240(b)(4)(B), 8 U.S.C. § 1229a(b)(4)(B).
To the extent that Hippolyte is appealing the BIA’s denial of due process of
law by failing to respond to his motion for an extension to file a brief out of time
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and extend the period for filing his brief, he must have administratively exhausted
his remedies. Hippolyte’s due process challenge is procedural in nature as he is
complaining about the IJ’s handling of his motion and arguing that the BIA could
have provided a remedy. Thus, the exhaustion requirement applies to Hippolyte’s
due process claim. See Sundar, 328 F.3d at 1325. As the government correctly
notes, however, Hippolyte did not mention his due process claim in his motion for
reconsideration, and, therefore, he failed to exhaust his administrative remedies as
to his due process claim. Likewise, because Hippolyte failed to mention his claim
that the briefing schedule was entitled to equitable tolling in his motion for
reconsideration, he failed to exhaust the administrative remedies available to him
with regard to his equitable tolling claim as well. Moreover, as noted above,
because Hippolyte failed to timely file a petition for review from the BIA’s April
28 order, we lack jurisdiction as to these matters. See Jaggernauth, 432 F.3d at
1350.
Furthermore, because Hippolyte did not timely file a brief before the BIA,
he did not properly raise a Lozada claim for ineffective assistance of counsel, and
the BIA did not address that issue in denying his appeal. Therefore, Hippolyte did
not exhaust his administrative remedies with respect to a claim for ineffective
assistance of counsel, and, consequently, we lack jurisdiction to consider that issue
here. See Sundar, 328 F.3d at 1323. For these reasons, we dismiss his petition in
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this respect.
Nonetheless, we do have jurisdiction to consider whether the district court
abused its discretion in denying Hippolyte’s motion to reconsider because the
petition for review is timely as to that order. See 8 U.S.C. § 1252(b)(1).
Motion to Reconsider
The decision to grant or deny a motion for reconsideration is entirely within
the discretion of the BIA. 8 C.F.R. § 1003.2(a). Consequently, we review the
BIA’s denial of a motion to reconsider for abuse of discretion. Assa’ad v. U.S.
Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). The BIA abuses its discretion
when it reaches its decision “in an arbitrary or irrational manner.” Gomez-Gomez
v. INS, 681 F.2d 1347, 1349 (11th Cir. 1982).
“A motion to reconsider shall state the reasons for the motion by specifying
the errors of fact or law in the prior Board decision and shall be supported by
pertinent authority.” 8 C.F.R. § 1003.2(b)(1). In his motion for reconsideration,
Hippolyte argued that the BIA failed to consider his Lozada claim for ineffective
assistance of counsel in its April 28 decision. Hippolyte, however, did not address
whether the BIA erred as a matter of fact or law in not addressing such claim in its
order.3 As the BIA explained in its decision, the ineffective assistance claim was
3
For example, Hippolyte did not argue that the BIA applied the wrong procedural
requirements when it did not grant his motion for an extension to file a late brief on appeal.
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never properly before it. The only reference in the record before the BIA with
respect to a possible ineffective assistance of counsel claim was in Hippolyte’s
notice of appeal and his October 27, 2005 letter requesting a sixty-day extension to
file a brief in support of the appeal. Hippolyte, however, did not raise any
arguments regarding a Lozada claim in either of these documents. For these
reasons, the BIA did not act in an arbitrary or irrational manner when it denied
Hippolyte’s motion to reconsider.
CONCLUSION
Due to our lack of subject matter jurisdiction concerning Hippolyte’s other
arguments, the only action we review on this petition is the BIA’s denial of
Hippolyte’s motion to reconsider. While it may be true that the performance of
Hippolyte’s former counsel was incompetent and prejudicial, the merits of
Hippolyte’s ineffective assistance of counsel claim were never properly before the
Board because it did not accept Hippolyte’s untimely brief. It may also be true that
the BIA’s briefing schedule was unrealistic because it did not provide adequate
time to conform with the Board’s mandated procedures for Lozada claims, but this
argument was not raised in Hippolyte’s motion to reconsider, and therefore, we
may not evaluate it.4
4
The BIA addressed this argument sua sponte when it denied Hippolyte’s motion to
reconsider stating that Hippolyte never articulated “why he would require the transcript of the
hearing before he could determine if a Lozada claim was presented.” In other words, Hippolyte
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Unfortunately for Mr. Hippolyte and his family, the failure of two different
attorneys to meet important deadlines resulted in his removal. However, in light of
the BIA’s reasoned order and the absolute discretion the Board has to grant or deny
a motion to reconsider, we cannot say that the BIA acted in an arbitrary or
irrational manner. Constrained by a deferential standard of review, we conclude
that the BIA did not abuse its discretion in denying Hippolyte’s motion to
reconsider.
PETITION DISMISSED IN PART, DENIED IN PART.
did not convince the BIA that he should have been excused from the briefing schedule.
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