Kwasi Acquaah v. Eric Holder

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0430p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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KWASI ACQUAAH,
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Petitioner,
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No. 08-3836
v.
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Respondent. -
ERIC H. HOLDER, JR., Attorney General,
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On Petition for Review from a Final Order
of the Board of Immigration Appeals.
No. A79 669 319.
Submitted: December 3, 2009
Decided and Filed: December 18, 2009
Before: SILER, GILMAN, and ROGERS, Circuit Judges.
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COUNSEL
ON BRIEF: Ilissa M. Gould, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. Kwasi Acquaah, Oakdale, Louisiana, pro se.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. Kwasi Acquaah, a native and citizen of
Ghana, appeals a decision by the Board of Immigration Appeals (BIA) denying two separate
motions to reopen his removal proceedings. An Immigration Judge (IJ) ordered Acquaah
removed in absentia when Acquaah failed to appear at his master-calendar hearing due to
a mistaken belief as to the proper hearing date. For the reasons set forth below, we DENY
Acquaah’s petition for review.
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I. BACKGROUND
A. Factual background
Acquaah was admitted to the United States in January 2000 as a nonimmigrant
student to attend the University of Arkansas. When Acquaah stopped attending school the
following year, the Immigration and Naturalization Service issued him a Notice to Appear.
The Notice informed Acquaah that he was subject to removal from the country for failing
to comply with the conditions of his nonimmigrant status. Following various delays not
relevant to this appeal, the IJ sent Acquaah notice that he was scheduled for a telephonic
master-calendar hearing on July 5, 2005.
Acquaah failed to appear at the office of his attorney, Robert D. Klock, to participate
in the scheduled telephonic hearing and, as a result, the IJ ordered that Acquaah be removed
from the country in absentia. Although Acquaah acknowledges that he received proper
notice that the hearing was to be held on July 5, he mistakenly believed it to be on July 7.
To support his claim, Acquaah produced evidence that he had requested time off from work
on July 7 so that he could participate in the hearing.
Acquaah did not discover that he had missed his court appearance until he went to
Klock’s office on July 7. According to Acquaah, Klock stated that he would promptly file
a motion to reopen Acquaah’s removal proceedings and that the motion would likely be
granted. Acquaah represents that he agreed to pay Klock $1,000 to file the motion, and that
he contacted Klock multiple times in the following months to inquire as to the status of his
case. Unbeknownst to Acquaah, Klock never filed the motion. In response to Acquaah’s
inquiries, Klock purportedly remarked that no new hearing date had been set and that the
immigration court “was very slow in processing cases.”
Almost two and a half years later, in December 2007, U.S. Immigration and Customs
Enforcement agents took Acquaah into custody. Ginger Tully, Acquaah’s fiancée, then
contacted Klock, who accepted a $2,000 down payment in exchange for his assistance in
getting Acquaah out of prison and for filing a motion to reopen the removal proceedings.
Unhappy with Klock’s representation, Tully gave Klock notice on January 9, 2008 that she
had hired another attorney to handle Acquaah’s case. That attorney, Laura Ferner, sent
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Klock notice on January 17, 2008 that she intended to file a motion to reopen on Acquaah’s
behalf and assert that Klock had rendered ineffective assistance as Acquaah’s counsel.
B. Procedural background
In January 2008, two motions to reopen were filed on Acquaah’s behalf. Klock,
despite receiving notice that Acquaah had new counsel, filed the first motion on January 23,
2008. The motion detailed Acquaah’s mistaken belief as to the hearing date and noted his
family connections to the United States. Shortly thereafter, on January 30, 2008, Ferner filed
the second motion to reopen, asserting that Klock had rendered ineffective assistance of
counsel by misrepresenting his intent to file a motion to reopen shortly after the July 5, 2005
hearing date.
The IJ denied both motions, finding, among other things, that Acquaah’s mistake as
to the correct date of the master-calendar hearing was not an “exceptional circumstance”
warranting reopening, and that the motions to reopen were now time-barred. On appeal, the
BIA agreed with the IJ’s conclusion that Acquaah had failed to demonstrate that any
exceptional circumstance existed that prevented him from participating in the master-
calendar hearing. The BIA further reasoned that, in the absence of such a circumstance, it
need not address whether Klock’s assistance as Acquaah’s counsel was ineffective. This
timely appeal, filed by Acquaah pro se, followed.
II. ANALYSIS
A. Standard of review
“Because the BIA adopted the IJ’s decision with additional commentary, we review
the decision of the IJ, as supplemented by the BIA, as the final administrative order.” Ceraj
v. Mukasey, 511 F.3d 583, 588 (6th Cir. 2007). We review the denial of a motion to reopen
under the abuse-of-discretion standard. Bi Feng Liu v. Holder, 560 F.3d 485, 489 (6th Cir.
2009). An abuse of discretion exists where the denial “was made without a rational
explanation, inexplicably departed from established policies, or rested on an impermissible
basis such as invidious discrimination against a particular race or group.” Id. at 490 (quoting
Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005)). Legal determinations made by the
BIA are reviewed de novo. Id.
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B. Discussion
Failure to appear at a removal proceeding carries the severe consequence of
deportation. See 8 U.S.C. § 1229a(b)(5)(A) (stating that an alien who receives notice of a
removal proceeding but fails to appear “shall be ordered removed in absentia if the
[government] establishes by clear, unequivocal, and convincing evidence that the written
notice was so provided and that the alien is removable”). An order of removal due to an
alien’s failure to appear may be rescinded, however, “upon a motion to reopen filed within
180 days after the date of the order of removal if the alien demonstrates that the failure to
appear was because of exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). Such
exceptional circumstances include “battery or extreme cruelty to the alien or any child or
parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child,
or parent of the alien, but not including less compelling circumstances,” and they must be
“beyond the control of the alien.” 8 U.S.C. § 1229a(e)(1). “An IJ considers the totality of
the circumstances when making a determination that exceptional circumstances exist.”
Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003).
As an initial matter, we note that both motions to reopen were filed well outside the
180-day time limit prescribed by statute. But Acquaah argues that this time bar should be
equitably tolled in light of Klock’s ineffective assistance. This court has indeed applied the
doctrine of equitable tolling to motions to reopen removal proceedings. See Barry v.
Mukasey, 524 F.3d 721, 724-25 (6th Cir. 2008) (recognizing the doctrine, but declining to
apply it where the petitioner neglected to contact her attorney for one year following the
BIA’s dismissal of her appeal, and thereby “failed to exercise due diligence in pursuing her
rights”). Here we agree with the BIA that even if Acquaah’s motions were found to be
timely, he would still not be entitled to relief because, as explained below, he has not shown
that he missed his hearing due to exceptional circumstances.
Acquaah does not dispute that he had proper notice of the hearing date and does not
allege that he was ill or in custody at the time of his hearing. Rather, he asserts that had
Klock promptly filed a motion to reopen—which Klock allegedly told Acquaah he had
done—the motion would have been granted. The key issue on appeal is thus whether
Acquaah’s good faith but mistaken belief as to the correct date qualifies as an exceptional
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circumstance. Although this court has not yet determined what constitutes an exceptional
circumstance where an alien has received proper notice of a removal hearing, other circuit
courts have set a high threshold and are disinclined to view misunderstandings and
communication errors as being sufficient. See, e.g., Dominguez-Capistran v. Gonzales, 438
F.3d 876, 877-78 (8th Cir. 2006) (determining that an attorney’s “poor calendaring and
failure to personally remind” the alien of her hearing date was not an exceptional
circumstance); Uriostegui v. Gonzales, 415 F.3d 660, 663-64 (7th Cir. 2005) (holding that
an alien’s misunderstanding as to the correct month of her hearing as told to her in Spanish,
her native language, by an interpreter was not an exceptional circumstance); Thomas v. INS,
976 F.2d 786, 788-90 (1st Cir. 1992) (affirming the denial of motion to reopen where an
alien appeared ten minutes late at a hearing because he and his attorney had “crossed
signals” about where to meet); but see Barseghian v. INS, 14 F. App’x 806, 807 (9th Cir.
2001) (holding, in a two-page unpublished opinion without supporting caselaw, that
exceptional circumstances existed where an alien misunderstood a court interpreter to say
that his hearing date was a week later than the date of the actual hearing).
Notwithstanding this general trend, the United States Court of Appeals for the First
Circuit found “exceptional circumstances” to exist in a situation with certain similarities to
Acquaah’s. In Kaweesa v. Gonzales, 450 F.3d 62 (1st Cir. 2006), Kaweesa, an alien
representing herself pro se, “inadvertently mistook” her May 13, 1999 hearing date for
May 17, 1999. Id. at 70. Like Acquaah, Kaweesa had arranged her schedule so as to be off
work on the wrong date. Id. But Kaweesa, unlike Acquaah, promptly contacted the court
on May 17 regarding her error and then filed a motion to reopen two days later. Id. at 64,
70. In light of this effort and the severe consequences that Kaweesa allegedly faced if
deported, the court held that she had demonstrated the existence of an exceptional
circumstance and that the IJ had committed an error of law by denying her motion to reopen.
Id. at 71.
We find that the scenario presented to the First Circuit in Kaweesa is sufficiently
distinguishable from the present case to call for a different outcome. To begin with, the
court in Kaweesa emphasized the need to conduct a totality-of-the-circumstances analysis,
and it highlighted Kaweesa’s claim under the Convention Against Torture in which she
alleged that she would face rape and torture if deported to Uganda. Id. at 68-70. Acquaah,
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in contrast, has not made any claim that he would be subject to persecution if removed to
Ghana. (To be sure, whether an alien’s likely treatment in his or her home country should
even be considered when reviewing the denial of a motion to reopen is an unresolved issue,
an issue that we have no need to explore due to its inapplicability in the case before us.)
Moreover, the Kaweesa court noted that Kaweesa took immediate and affirmative
action following her court date by contacting the court directly and promptly filing a motion
to reopen. Id. at 70. Unlike Kaweesa, there is no evidence that Acquaah tried to contact the
court directly regarding the status of his case at any point during the two-and-one-half years
following the missed hearing. See Kasyupa v. Keisler, 252 F. App’x 106, 109 (8th Cir.
2007) (distinguishing Kaweesa because of the alien’s “failure to remain active in the
immigration proceedings,” including his failure to remain in contact with his attorney or
inquire of the court regarding the status of his I-130 petition).
Acquaah, unlike Kaweesa, had an attorney, but other than intermittently checking
in with Klock, Acquaah was disengaged from his removal proceedings for the two-and-one-
half years prior to his being taken into custody. Exemplifying this disengagement is the fact
that Acquaah never even requested a copy of the motion that Klock supposedly filed with
the immigration court shortly after the missed hearing. At some point during this long period
of time, we find that Acquaah’s blind reliance upon Klock’s representations became
unreasonable. Cf. Uriostegui, 415 F.3d at 664 (observing that an alien who was represented
by counsel was not absolved of responsibility for a missed hearing date because she “could
have double-checked the date after the hearing when it was set, or . . . could have left
instructions with her attorney to call her a day or two before the hearing to make sure that
all necessary preparations were in place”).
In addition to Kaweesa being distinguishable, the weight of authority generally, as
noted above, holds that a mistaken belief as to the correct hearing date does not rise to the
level of being an exceptional circumstance. Acquaah has not shown that his mistake as to
the correct date for the hearing was in any way beyond his control or of an extraordinary
nature comparable to the exceptional circumstances specified by statute. See, e.g., Kasyupa,
252 F. App’x at 108 (holding that an alien’s mistaken belief that he no longer needed to keep
his address current was not an exceptional circumstance because “[i]t was not beyond [his]
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control” that his address on file was inaccurate); Chen v. INS, 85 F. App’x 223, 226 (2d Cir.
2003) (finding no exceptional circumstance where the alien failed to allege that the traffic
jam was “of such a severe and extraordinary nature that [the alien] could not reasonably have
been expected to account for such an eventuality”). This point is further supported by the
Supreme Court’s recognition that “[t]here is a strong public interest in bringing litigation to
a close as promptly as is consistent with the interest in giving the adversaries a fair
opportunity to develop and present their respective cases.” INS v. Abudu, 485 U.S. 94, 107
(1988).
Acquaah’s mistake as to the correct date of his hearing had severe consequences, but
it was a “less compelling circumstance[]” than that required for relief under 8 U.S.C.
§ 1229a(e)(1). Because Acquaah cannot make this requisite showing, we need not address
Acquaah’s arguments regarding Klock’s alleged ineffective assistance of counsel that
occurred after the fact, nor do we have to consider whether the filing period for the motions
to reopen should have been equitably tolled. The IJ, in other words, would not have abused
his discretion in denying a motion to reopen even if Acquaah’s attorney had promptly filed
such a motion several days after July 5, 2005.
III. CONCLUSION
For all of the reasons set forth above, we DENY Acquaah’s petition for review.