Gonzalez, Armando v. Gonzales, Alberto R.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 19, 2005
Decided January 13, 2006
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 04-1591
ARMANDO GONZALEZ On Petition for Review of an Order
Petitioner, of the Board of Immigration Appeals
v. No. A95-185-406
ALBERTO R. GONZALES,
Respondent.
ORDER
An immigration judge (“IJ”) in Chicago ordered Armando Gonzalez removed
in absentia after he failed to appear for his asylum hearing. Gonzalez, a Mexican
national whose asylum application was filed in California, moved to reopen on the
basis that he did not know about the hearing date, or even that his case had been
transferred to Chicago; he argued that a nonlawyer “professional legal consultant”
hired to handle his immigration affairs failed to apprise him of the hearing date, and
that this “fraud” by the consultant constituted “exceptional circumstances”
warranting reopening his case. The IJ denied the motion to reopen, and the Board of
Immigration Appeals (“BIA”) affirmed. We deny Gonzalez’s petition for review.
No. 04-1591 Page 2
I.
Gonzalez has lived in California since entering the United States without
inspection in 1988. Gonzalez’s wife is also here illegally. Gonzalez has family
members who still reside in Mexico, but Gonzalez and his wife have two minor sons
who are United States citizens. In January 2001, an application for asylum was filed
on behalf of Gonzalez in Los Angeles. The application bears what appears to be
Gonzalez’s signature; identifies his “residence” and “mailing address” as 5554 Reseda
Boulevard in Tarzana, California; and includes a representation that no one other
than his wife or children helped prepare the application. As grounds for asylum, the
application explains that Gonzalez desires “a better life” for himself and his family,
and that “the only possible way to achieve this, is to work hard and be allowed to
continue to live here with [the government’s] permission.”
On January 2, 2002, the Immigration and Naturalization Service (“INS”) (now
the Bureau of Citizenship and Immigration Services in the Department of Homeland
Security) responded to the asylum application by mailing to the listed residential
address a notice directing Gonzalez to appear on February 13 before an IJ in Los
Angeles to show cause why he should not be removed. A motion to change venue was
then filed with the Immigration Court in Los Angeles on January 30, 2002, claiming
that Gonzalez had moved to Wheatfield, Indiana. The first line of that motion makes
reference to counsel, but the document is not signed by a lawyer and otherwise
appears to be pro se. The motion acknowledges the February 13 hearing date and,
like the asylum application, bears what appears to be Gonzalez’s signature. On
February 7, 2002, the Immigration Court in Los Angeles granted this motion and
ordered that venue be changed to Chicago.
On February 13, 2002, the Immigration Court in Chicago mailed Gonzalez
notice that a master hearing was scheduled in Chicago on April 4. The notice lists
for Gonzalez the Wheatfield, Indiana, address that was listed on his January 2002
motion to change venue. A second motion to change venue was then filed with the
Immigration Court in Chicago on March 20, stating that Gonzalez had moved a few
days earlier from Indiana to Pasadena, California. This motion, from the same
template as the first, likewise bears what appears to be Gonzalez’s signature and
acknowledges the April 4 hearing date. No ruling was ever entered on this motion.
On April 4, 2002, the Immigration Court in Chicago held the master hearing
for Gonzalez’s case. Gonzalez failed to appear, and the IJ ordered him removed
in absentia.
No. 04-1591 Page 3
On September 30, 2002, Gonzalez, through counsel, filed with the IJ in
Chicago a motion to reopen the removal proceedings. In this motion, which is
supported by his affidavit, Gonzalez makes a series of factual allegations that
underlie the case now before this court:
Gonzalez alleges that in January 2001 he met Joel Freddy, whom he
understood to be a notary public and a “professional legal consultant” doing business
as L&J Professional Legal Services. Freddy told Gonzalez that, for a fee, Freddy
would hire an attorney to obtain a “work permit” for Gonzalez and process
“immigration applications” for him and his wife. Gonzalez executed a “payment
contract” with Freddy, who “filled out an application” in Gonzalez’s presence using
information that Gonzalez supplied about his family, his residence, and his past
employment. However, Gonzalez’s “residential” address listed on the
application—5554 Reseda Boulevard in Tarzana, California—was also the business
address for L&J. Gonzalez further alleges that he met briefly with Freddy again in
June 2001, but after that his repeated attempts to check with Freddy about the
status of his application went unanswered. In all, L&J apparently billed Gonzalez
over $6,000 for an “Adjustment of Status.”
Meanwhile, the story continues, in early March 2002 Gonzalez turned to
neighbor Conrad Joyner (who is also a lawyer) for assistance in finding information
about his application. Joyner called L&J, but no one there would talk to him. Then,
on March 18, 2002, Joyner accompanied Gonzalez to the immigration office in Los
Angeles where Gonzalez had been told to report for an “employment card.” Freddy
met them there at Gonzalez’s request, but became angry at seeing Joyner and
disappeared. According to Gonzalez, Joyner learned at the Los Angeles office that
Gonzalez’s file was not there, and afterward Joyner made inquiries at other locations.
On April 10, 2002, Joyner was able to obtain Gonzalez’s immigration file from the
INS. The file, which Gonzalez received in July 2002, revealed the legal activity in
Gonzalez’s case, all of which, Gonzalez claims in his affidavit, had been unknown to
him. In his affidavit, Gonzalez specifically denies knowing anything about the two
motions to change venue. At this point Gonzalez hired present counsel; before filing
the motion to reopen, counsel assisted Gonzalez in filing complaints against Freddy
with the district attorney and Better Business Bureau in Los Angeles.
Based on these allegations, Gonzalez argued to the IJ that his case should be
reopened because Freddy’s “elaborate scheme” constituted “exceptional
circumstances,” see 8 U.S.C. § 1229a(b)(5)(C)(I), excusing his failure to appear.
Gonzalez did not argue that he had a legitimate claim to asylum, but asserted
without elaboration that he was “prima facie eligible” for cancellation of removal
No. 04-1591 Page 4
under 8 U.S.C. § 1229b(b)(1). The government, without disputing the factual
allegations in Gonzalez’s supporting affidavit, argued in a one-page opposition that
his motion should be denied:
While it is unfortunate that respondent relied on the services of a
notary to handle his immigration case, the immigration judge cannot
excuse the respondent’s failure to appear for his hearing for this reason.
The Board of Immigration Appeals has established a set of factors that
must be met in order for a respondent to make a claim for ineffective
assistance of counsel. See, Matter of Lozada, 191 I & N Dec. 638 (BIA
1988). This holding does not, however, extend to notaries. Therefore
the Motion to Reopen should be denied.
On October 22, 2002, the IJ denied the motion to reopen. Notwithstanding
that the government had not contested the factual allegations in Gonzalez’s motion,
the IJ stated in his handwritten order that “[t]he Respondent sign[ed] a motion to
change venue” from California to Chicago, but failed to show in Chicago after he
“was duly notified to appear at his last address provided.” The IJ then denied the
motion “[f]or the reason set forth in [the government’s] response which the Court
adopt[s].”
Gonzalez appealed to the BIA and renewed his “exceptional circumstances”
argument. In his December 2002 brief, he stated specifically that he “never received
notice of his hearing in Los Angeles or Chicago because Joel Freddy, a non-attorney
providing ‘professional legal services’ filed a motion to change venue in this case . . .
without Mr. Gonzalez’s knowledge.” In a supplemental brief filed the following June,
Gonzalez added that he wrote Freddy in January 2003 demanding an explanation
regarding L&J’s activities with his case, but never got a response. The government
again submitted a one-page response, this time simply declaring without analysis
that the IJ had “considered all relevant evidence” and correctly “applied the
applicable law.”
In February 2004, the BIA issued a one-judge order dismissing the appeal.
The BIA explained that “the respondent had notice of his hearing” since he “filed a
pro se motion to change venue,” and acknowledged in that motion that the hearing
date in Chicago was set for April 4, 2002. The BIA added that it was “not persuaded
that exceptional circumstances prevented” Gonzalez from attending his hearing:
“While the respondent claims that he received ineffective assistance from an
individual who provided legal services, his change of venue indicated he acted on his
own behalf, pro se.”
No. 04-1591 Page 5
II.
Gonzalez presses two points before this court: (1) he never personally received
notice of the April 4 hearing in Chicago because notice was mailed to Freddy; and
(2) Freddy’s alleged fraudulent conduct qualified as “exceptional circumstances.” In
cases such as this where the BIA’s opinion supplements the IJ’s opinion, we review
the IJ’s opinion as supplemented by the BIA. Brucaj v. Ashcroft, 381 F.3d 602, 606
(7th Cir. 2004). We review the denial of a motion to reopen only for abuse of
discretion, Kay v. Ashcroft, 387 F.3d 664, 671 (7th Cir. 2004), and under this
deferential standard, we uphold the ruling “‘unless it was made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis such as invidious discrimination against a race or particular
group,’” Singh v. Gonzales, 404 F.3d 1024, 1027 (7th Cir. 2005) (quoting
Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir. 1985)).
An order of removal entered in absentia can be rescinded on a timely motion
to reopen only if the alien did not receive the requisite notice to appear before the IJ,
see 8 U.S.C. § 1229a(b)(5)(c)(I), or if the failure to appear was due to “exceptional
circumstances,” id. § 1229a(b)(5)(c)(ii). Gonzalez asserts here that he never
personally received notice of the April 4, 2002, master hearing, but this assertion is
irrelevant even if true. Notice delivered to the alien’s agent—in this case,
Freddy—is notice to the alien. 8 U.S.C. § 1229(a)(2)(A); Pervaiz v. Gonzales, 405
F.3d 488, 490 (7th Cir. 2005). Moreover, Gonzalez’s suggestion that Freddy did not
receive notice of the April hearing is untenable. Gonzalez asserts that documents in
his immigration file evidence that notice of that hearing returned to the immigration
court undelivered, but his motion to change venue back to Los Angeles from
Chicago—which was filed with the Immigration Court in Chicago after notice of the
April 4 hearing was mailed to the Indiana address—acknowledges the date of the
upcoming hearing to be April 4. If, as Gonzalez insists, it was Freddy who drafted
and filed the motion to change venue, then at least Freddy had received actual
notice of the hearing date because he identified the correct date in the motion. In
addition, at oral argument Gonzalez’s counsel effectively conceded that what appears
to be Gonzalez’s signature on the asylum application and both motions to change
venue is his signature, so Gonzalez’s representation that he personally was unaware
of the hearing date is particularly suspect.
This case thus comes down to the question of “exceptional circumstances,”
which are defined by statute as “circumstances (such as 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) beyond the control of the alien.” 8 U.S.C.
No. 04-1591 Page 6
§ 1229a(e)(1). The BIA has interpreted this definition to include deficient
performance by counsel among the circumstances that might qualify as
“exceptional,” In re Lozada, 19 I & N Dec. 637, 638-39 (B.I.A. 1988); see also Magala
v. Gonzales, No. 04-2819, slip op. at 3 (7th Cir. Dec. 27, 2004) ; Stroe v. INS, 256 F.3d
498, 500-02 (7th Cir. 2001), but so far the BIA has been unwilling to extend this
rationale to incompetence by an alien’s nonlawyer agent. Gonzalez submits that
fraud committed by a nonlawyer should be viewed the same as legal malpractice, and
his position has garnered support from the Third and Ninth Circuits. See Borges v.
Gonzales, 402 F.3d 398, 408 (3d Cir. 2005) (“[A] finding by the BIA that fraud was
visited on [the petitioner] in the manner alleged here is surely an extraordinary
circumstance in and of itself and, by definition, ‘ineffective assistance.’”); Varela v.
INS, 204 F.3d 1237, 1239-40, 1240 n.6 (9th Cir. 2000) (“We believe that the fraud
perpetrated by [an assistant of petitioner’s attorney] is an exceptional
circumstance.”); Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir. 1999) (suggesting that
fraud by a non-attorney amounted to an “exceptional circumstance” akin to legal
malpractice).
We need not decide whether this court should adopt the position of the Third
and Ninth Circuits because Gonzalez’s signature on various filings leaves us
skeptical of his claim that he was unaware of Freddy’s actions. What we deem
decisive is that Freddy’s conduct, even under the scenario Gonzalez describes, did
not cause any prejudice to Gonzalez. This is so because even a lawyer’s failure to
direct his client to attend a mandatory hearing will constitute “exceptional
circumstances” only if the client was prejudiced by not appearing, see In re Grijalva,
21 I & N Dec. 472, 474 (B.I.A. 1996); see also Stroe, 256 F.3d at 500, and Gonzalez
has never explained how he was prejudiced by Freddy’s actions. He was living in the
United States illegally with no discernable basis for achieving legal status, and his
claim for asylum was patently frivolous, see 8 U.S.C. § 1158(b)(1)(B)(I) (stating that
an applicant for asylum has the burden of establishing that he or she is a refugee
and that “race, religion, nationality, membership in a particular social group, or
political opinion was or will be at least one central reason for persecuting the
applicant”). Tellingly, counsel does not argue that Gonzalez would have avoided
removal—or even that he would have presented a plausible basis for opposing
removal—had he attended the April 2002 hearing. Moreover, Gonzalez is virtually
silent—just as he was before the IJ and the BIA—as to what relief would be available
to him if his motion to reopen had been granted. Gonzalez asserts in his brief that he
is eligible for cancellation of removal on the basis that his wife and sons will suffer
“exceptional and extremely unusual hardship” if he is removed, but the contention is
not explained or developed. We observe, however, that the BIA would not consider
hardship to Gonzalez’s wife because she, like him, is in the United States illegally,
No. 04-1591 Page 7
see 8 U.S.C. § 1229b(b)(1)(D); In re Andazola, 23 I & N Dec. 319, 323 (B.I.A. 2002),
and Gonzalez, whose parents still reside in Mexico, offered nothing in his motion to
reopen to establish that his sons would suffer the “exceptional and extremely
unusual hardship” necessary to obtain cancellation of removal, see 8 U.S.C.
§ 1229b(b)(1)(D); compare In re Recinas, 23 I & N Dec. 467, 473 (B.I.A. 2002) (finding
that four United States citizen children would face “exceptional and extremely
unusual hardship” if their single mother and sole source of financial and emotional
support was removed to Mexico; mother had no family in Mexico and no prospect of
finding employment there); with In re Monreal, 23 I & N Dec. 56, 64 (B.I.A. 2001)
(denying cancellation of removal because alien was in good health and able to
support his family of United States citizens while in Mexico).
Accordingly, the petition for review is DENIED.