Sswajje v. Ashcroft

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Sswajje v. Ashcroft Nos. 02-3558; 03-3023
ELECTRONIC CITATION: 2003 FED App. 0415P (6th Cir.)File Name: 03a0415p.06 _________________
COUNSEL
UNITED STATES COURT OF APPEALS
ARGUED: E. Dennis Muchnicki, Dublin, Ohio, for
FOR THE SIXTH CIRCUIT Petitioner. Carol Federighi, UNITED STATES
_________________ DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: E. Dennis Muchnicki, Dublin,
GERALD SSWAJJE , X Ohio, for Petitioner. Carol Federighi, Allen W. Hausman,
Petitioner, - Emily A. Radford, Anthony W. Norwood, UNITED STATES
- DEPARTMENT OF JUSTICE, Washington, D.C., for
- Nos. 02-3558; Respondent.
v. - 03-3023
> _________________
,
JOHN ASHCROFT , Attorney - OPINION
General, - _________________
Respondent. -
- CLAY, Circuit Judge. In Case No. 02-3558, Gerald
N Sswajje petitions this Court for review of the April 22, 2002,
On Appeal from the Board of Immigration Appeals. order of the Board of Immigration Appeals (“BIA”)
No. A74 738 139. dismissing as untimely his appeal of the March 7, 2001, order
of the immigration judge, which had denied his application
Argued: October 28, 2003 for asylum and withholding of deportation. In Case No. 03-
3023, Sswajje petitions this Court for review of the
Decided and Filed: November 21, 2003 December 27, 2002, order of the BIA denying his motion to
reconsider its April 22, 2002, order. Having had the benefit
Before: CLAY and COOK, Circuit Judges; STAFFORD, of oral argument and having carefully considered the record
Senior District Judge.* on appeal, the briefs of the parties, and the applicable law, we
are persuaded that the BIA committed no error of fact or law
and did not abuse its discretion when it dismissed Sswajje’s
appeal as untimely and later denied Sswajje’s motion for
reconsideration.
I.
Gerald Sswajje is a native and citizen of Uganda. On
March 7, 2001, an immigration judge conducted a merits
*
The Honorab le William Stafford, Senior United States District Judge hearing on the government’s removability claim and on
for the Northern District of Florida, sitting by designation.
1
Nos. 02-3558; 03-3023 Sswajje v. Ashcroft 3 4 Sswajje v. Ashcroft Nos. 02-3558; 03-3023
Sswajje’s application for asylum and withholding of removal can’t wait until April 5th or 6th or even the 4th
or, alternatively, for voluntary departure. (A.R. 94.)1 to mail your appeal. It will get there too late.
Attorney Dennis Muchnicki, who represents Sswajje before
this Court, also represented Sswajje at the immigration (A.R. 260-61.)
hearing. (A.R. 139.) On the day of the hearing, the
immigration judge sustained the charges of removability, Despite the clear admonition of the immigration judge to
denied the asylum application as untimely and denied the file the appeal by April 6, 2001, Mr. Muchnicki did not mail
applications for withholding of removal and for voluntary Sswajje’s notice of appeal to the BIA until April 7, 2001.
departure. (A.R. 123-24.) (A.R. 89.) The BIA received the notice of appeal on April 9,
2001. (A.R. 85.)
After delivering his findings, the immigration judge
engaged in the following colloquy with Sswajje and his The INS moved for summary dismissal of Sswajje’s BIA
counsel, Mr. Muchnicki: appeal on the ground of untimeliness. (A.R. 83.) Mr.
Muchnicki filed an opposition on Sswajje’s behalf, admitting
JUDGE TO MR. MUCHNICKI that he had made an error calculating the due date of the
Q. You’re reserving his right to appeal? appeal due to a distracting “mini-crisis” in his law practice.
A. Yes. (A.R. 44-52.) On April 22, 2002, the BIA issued an order
dismissing the appeal as untimely. (A.R. 2.)
JUDGE TO MR. SSEWAJJE [sic]
Q. Now, sir, your lawyer is indicating he is On May 21, 2002, the same day Sswajje noticed his appeal
reserving your right to appeal my decision, to this Court in Case No. 02-3558, Sswajje filed a motion
which has found that you have not met your with the BIA for reconsideration of its April 22, 2002, order
burden. And the Court denied all your dismissing his appeal of the immigration judge’s order. (J.A.
applications for relief. … Now, Mr. Muchnicki 4-5.) In that motion, Sswajje argued that the late-filed appeal
is an experienced immigration attorney. He of the immigration judge’s decision was excusable because
knows that to effectuate a valid appeal, he has his attorney had miscalculated the due date and because the
to file your appeal no later than April 6th of this merits of his immigration case allegedly showed he would
year, at the Board of Immigration Appeals in face certain persecution if he were returned to his native
Falls Church, Virginia. That application has to Uganda. On December 27, 2002, the BIA denied the motion
be completely filled out and all the appropriate to reconsider because Sswajje had “established no error of
fees paid or waived. He also understands that if law or fact” in the BIA’s April 22, 2002, order. Specifically,
he doesn’t get this to the Board by that date, it since Sswajje’s reconsideration motion confirmed that his
will be deemed abandoned and the Court’s appeal was untimely due to his counsel’s error, the BIA had
decision will become final. That means you not committed a factual error in its April 22, 2002, order.
(J.A. 3.)
1
All references to “A.R.” refer to the administrative record for Case
No. 02-3558. References to J.A. refer to the Joint Appendix for Case No.
03-3023.
Nos. 02-3558; 03-3023 Sswajje v. Ashcroft 5 6 Sswajje v. Ashcroft Nos. 02-3558; 03-3023
II. the BIA by November 12, 1998, but counsel mailed the
appeals on November 9, 1998 and they did not reach the BIA
Federal Regulations in effect at the time of Sswajje’s until November 13, 1998). The immigration judge explicitly
immigration proceedings in 2001 provide that the BIA has told Sswajje in the presence of his attorney that the BIA had
appellate jurisdiction from decisions of immigration judges in to receive the appeal no later than April 6, 2001. Thus, it
asylum cases, deportation cases and removal proceedings. makes no sense for Sswajje to argue that his counsel, so
8 C.F.R. §§ 3.1(b), 3.3(a)(1), 3.38(a) (2001). An appeal is not distracted by other matters in his office, made an error in
deemed properly filed unless it is received at the BIA within calculating the appeal deadline. There were no calculations
the specified time for appeal. Id. § 3.3(a)(1). To effectuate a to be done. To find unique and extraordinary circumstances
timely appeal of the decision of an immigration judge, the on these facts, this Court would have to eviscerate its holding
petitioner has to ensure that the BIA receives the notice of in Anssari-Gharachedaghy.
appeal “within 30 calendar days after the stating of an
Immigration Judge’s oral decision….” Id. at §§ 3.3(a)(1), Sswajje also cannot rely on the alleged merits of his asylum
3.38(b)-(c), 240.15. The decision of the immigration judge application to show unique and extraordinary circumstances.
becomes final upon expiration of the time to appeal if no This approach effectively would require the Court to review
appeal has been taken. Id. at §§ 3.39, 240.14. The BIA has the decision of the immigration judge. This Court has no
the authority to summarily dismiss any appeal that is jurisdiction to review the immigration judge’s decision,
untimely. Id. § 3.1(d)(2)(F). however, because Sswajje failed to exhaust all available
administrative remedies by filing a timely appeal to the BIA.
It is undisputed that Sswajje filed his notice of appeal too See Perkovic v. INS, 33 F.3d 615, 619 (6th Cir. 1994)
late. Since the immigration judge had rendered an oral (“Insofar as a petitioner fails to exhaust his available
decision on March 7, 2001, Sswajje was required to have filed administrative remedies, … a federal court is without
his notice of appeal by no later than April 6, 2001. He did not jurisdiction to consider his petition for review.”); Harchenko
even mail the notice of appeal until April 7, 2001, and the v. INS, 22 FED App. 540, 543 (6th Cir. 2001) (court lacked
appeal was not filed by the BIA until April 9, 2001. Sswajje jurisdiction over certain issues; petitioner had failed to
nevertheless argues that the BIA should have entertained the exhaust administrative remedies as to those issues because
untimely appeal because of “extraordinary and unique brief filed with the BIA on those issued had been untimely);
circumstances,” namely, the excusable neglect of his attorney Da Cruz v. INS, 4 F.3d 721, 722-23 (9th Cir. 1993) (“We
in missing the appeal deadline and the strong likelihood that have no jurisdiction to review the Immigration Judge’s
he will be persecuted if he is denied an appeal and returned to decision because the INS did not timely appeal to the BIA.”)
Uganda. (citation omitted). Accordingly, Sswajje’s petition for review
of the BIA’s order in Case No. 02-3558 is not well-taken.
Sswajje’s first argument is meritless in light of this Court’s
holding in Anssari-Gharachedaghy v. INS, 246 F.3d 512, 515 III.
(6th Cir. 2000) (assuming arguendo that the BIA has
discretion to entertain late-filed appeals in unique and BIA regulations authorize a motion for reconsideration of
extraordinary circumstances, BIA did not abuse its discretion a BIA decision and provide that such a motion “shall state
in dismissing untimely appeals; order of immigration judge the reasons for the motion by specifying the errors of fact or
had notified petitioners that they had to file their appeals with law in the prior Board decision and shall be supported by
Nos. 02-3558; 03-3023 Sswajje v. Ashcroft 7 8 Sswajje v. Ashcroft Nos. 02-3558; 03-3023
pertinent authority.” 8 C.F.R. § 1003.2(b)(1). The BIA’s affidavit stating his agreement with former counsel with
decision to deny a motion for reconsideration is reviewed for respect to the actions to be taken on appeal and what counsel
abuse of discretion. Dawood-Haio v. INS, 800 F.2d 90, 95 did nor did not represent to the alien in this regard; (2) to
(6th Cir. 1986.) The BIA abuses its discretion when it acts show that former counsel was informed of the allegations and
arbitrarily, irrationally or contrary to law. Babai v. INS, 985 was given an opportunity to respond; and (3) to state whether
F.2d 252, 255 (6th Cir. 1993). a complaint has been filed with appropriate disciplinary
authorities regarding the allegedly ineffective representation.
The BIA did not abuse its discretion in denying Sswajje’s Id.; see also Hamid v. Ashcroft, 336 F.3d 465, 469 (6th Cir.
motion for reconsideration because the motion alerted the 2003) (“Sound policy reasons support compliance with the
BIA to no legal or factual arguments that had not already been Lozada requirements.”). Sswajje arguably can bypass the
presented to the BIA in response to the INS’s motion for first two Lozada requirements (because Mr. Muchnicki
summary dismissal of the untimely appeal of the immigration himself has argued that his representation was ineffective),
judge’s order. Perhaps recognizing this fact, Sswajje’s but there is no evidence in the record as to whether
attorney, Mr. Muchnicki, now argues that his failure to file a disciplinary authorities have been notified of Mr. Muchnicki’s
timely appeal amounted to ineffective assistance of counsel, alleged misconduct. The BIA has explained that this
which should have excused his client’s noncompliance with requirement “not only serves to deter meritless claims of
the appeal deadline. Sswajje cannot avail himself of this ineffective representation but also highlights the standard
argument, however, because he did not raise it in the BIA which should be expected of attorneys who represent persons
proceedings. There, he argued only that the merits of his in immigration proceedings, the outcome of which may, and
immigration case justified an exception to the appeal deadline often does, have enormous significance for the person.” Id.and that Sswajje should not be punished for his counsel’s at 639-40. Since Sswajje failed to follow this process for
“simple” mistake. He never argued that his counsel’s mistake consideration of ineffective assistance claims, this Court lacks
rose to the level of a deprivation of due process. This Court jurisdiction to determine the merits of this argument.
therefore lacks jurisdiction to entertain Sswajje’s ineffective
assistance of counsel argument because he failed to exhaust IV.
his administrative remedies. Cf. Harchenko, 22 FED App. at
543 (holding that court lacks jurisdiction over issues not For the foregoing reasons, Gerald Sswajje’s petitions for
raised before the BIA; petitioner had failed to exhaust review of the BIA orders in Case Nos. 02-3558 and 03-3023
administrative remedies as to those issues because brief filed are hereby DENIED.
with the BIA on those issued had been untimely); Akinwunmi
v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (“… [B]ecause
the BIA provides a mechanism for hearing an ineffective
assistance claim, an alien’s failure to raise the claim to the
BIA deprives this court of jurisdiction to review it.”).
The proper avenue for raising ineffective assistance of
counsel is by filing a motion to reopen proceedings with the
BIA. Matter of Lozada, 19 I & N. Dec. 637, 639 (1988). In
support of that motion, the alien is required (1) to file an