Njie-Mokonya v. U.S. Immigration & Naturalization Service

Filed: October 26, 2001
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-1292
(A72-377-000)
Edward Njie-Mokonya,
Petitioner,
versus
U.S. Immigration & Naturalization Service,
Respondent.
O R D E R
The court amends its opinion filed October 24, 2001, as
follows:
On the cover sheet, section 2 -- the caption is corrected as
follows: “John Ashcroft, Attorney General” is deleted.
On the cover sheet, section 7 -- the Department of Justice
attorney represents the “Respondent,” not “Respondents.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EDWARD NJIE-MOKONYA,
Petitioner,
v.
No. 01-1292
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals.
(A72-377-000)
Submitted: September 28, 2001
Decided: October 24, 2001
Before WIDENER and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Carrie Crawford, Laurel, Maryland, for Petitioner. Stuart E. Schiffer,
Acting Assistant Attorney General, David V. Bernal, Assistant Direc-
tor, Anthony C. Payne, Office of Immigration Litigation, Civil Divi-
sion, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Edward Njie-Mokonya, a native and citizen of Cameroon, seeks
review of an order of the Board of Immigration Appeals ("Board")
affirming without opinion the Immigration Judge's ( "IJ") order deny-
ing Njie-Mokonya's motion to reopen his case.
After Njie-Mokonya failed to appear for a deportation hearing, the
IJ ordered Njie-Mokonya deported to Cameroon upon conducting the
hearing in absentia. Nearly three years after his in absentia deporta-
tion order, Njie-Mokonya moved the Immigration Court to reopen the
case and rescind the order claiming that at no time prior to the hearing
was he notified by counsel of the October 8, 1997 deportation pro-
ceedings, nor was he advised to appear in court on such date. The IJ
denied the motion, and the Board affirmed. On appeal, Njie-Mokonya
contends that (1) his due process rights were violated because he did
not receive proper notice of the hearing; and (2) his counsel's failure
to notify him of the hearing constituted ineffective assistance which
established "exceptional circumstances" to excuse his absence at the
hearing. We affirm.
This court's review of the Board's denial of a motion to reopen is
extremely deferential, and the decision will not be reversed absent
abuse of discretion. Stewart v. INS, 181 F.3d 587, 595 (4th Cir. 1999).
Motions to reopen are disfavored. INS v. Doherty, 502 U.S. 314, 323
(1992); 8 C.F.R. § 3.2(c) (2000). When, as here, the Board chooses
to rely on the express reasoning of the IJ in a short per curiam opin-
ion, that reasoning is the sole basis for our review and will be
reversed if inadequate. Gandarillas Zambrana v. Board of Immigra-
tion Appeals, 44 F.3d 1251, 1255 (4th Cir. 1995).
We first find Njie-Mokonya's due process argument without merit.
See Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000); Wijeratne v.
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INS, 961 F.2d 1344, 1346 (7th Cir. 1992). Second, we have reviewed
the administrative record and agree with the IJ's conclusion that the
motion to reopen was untimely. See 8 U.S.C.A. § 1229a(b)(5)(C)(i)
(West 1999); 8 C.F.R. § 3.2(c)(3) (2000); 8 C.F.R. § 3.23(b)(4)(ii)
(2000); Anin v. Reno, 188 F.3d 1273, 1278 (11th Cir. 1999); Kamara
v. INS, 1149 F.3d 904, 906 (8th Cir. 1998). To the extent that Njie-
Mokonya claims that former counsel's ineffectiveness constitutes an
exception to the time and numerical bars on motions to reopen, the
Board has held that an ineffective assistance claim does not qualify
as an exception to the 180-day statutory limit for the filing of a
motion to reopen or rescind an in absentia order of deportation. In re
A-A-, Int. Dec. 3357 (BIA 1998) (en banc); In re Lei, Int. Dec. 3356
(BIA 1998) (en banc). In any event, the IJ properly found that Njie-
Mokonya's claim of ineffective assistance of counsel was defective
as it failed to meet the requirements of Matter of Lozada, 19 I. & N.
Dec. 637 (BIA 1988).
We have carefully reviewed the record and find no abuse of discre-
tion in the IJ's denial of Njie-Mokonya's motion to reopen. Accord-
ingly, we affirm the denial of relief on this claim. We further grant
Respondent's motion to withdraw, relieve, or substitute attorney. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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