188 F.3d 1273 (11th Cir. 1999), 98-9013, Anin v Reno

Docket Nº:98-9013
Citation:188 F.3d 1273
Case Date:July 12, 1999
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1273

188 F.3d 1273 (11th Cir. 1999)




No. 98-9013

United States Court of Appeals, Eleventh Circuit

July 12, 1999

Page 1274

Petition for Review of an Order of the Board of Immigration Appeals. (BIA No. A71-031-600).

Before Hull and Marcus, Circuit Judges, and Roney, Senior Circuit Judge.

Per Curiam

Alexis Anin petitions for review of a final order of the Board of Immigration Appeals ("BIA") denying his motion to reopen his deportation order. Anin argues that the BIA's decision constituted an abuse of discretion because he lacked proper notice of his deportation proceedings, his lack of notice violated due process, his lawyer's ineffective assistance of counsel amounted to an exceptional circumstance, and he possessed a viable political asylum claim that the BIA ignored. We hold that the BIA did not abuse its discretion in refusing to reopen Anin's deportation order because Anin received proper notice of his deportation proceeding under section 242(B)(c)(3)(B) of the Immigration and Nationality Act ("INA"), his exceptional circumstances argument was time-barred pursuant to INA section 242(B)(c)(3)(A), and because the BIA is not required to reopen deportation orders based on political asylum claims like Anin's under 8 C.F.R § 3.2(a) (1999).1 Accordingly, the final judgment of the BIA is AFFIRMED.

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Petitioner Alexis Anin, a native of Burkina-Faso, entered the United States on October 30, 1991 with a C-1 visa as an "alien in transit." The visa gave him permission to remain in the United States only until the next day. However, Anin did not depart as required and remained in the United States without seeking approval from the Immigration and Naturalization Service ("INS"). During this time he met Linda McSwain, a United States citizen, and married her on January 14, 1994. On July 26, 1994, the INS concluded that Anin had entered into a sham marriage for the purpose of obtaining immigration benefits and issued an order to show cause under INA section 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B) (1994). While in custody, pursuant to the order to show cause, Anin filed an application for asylum. His wife also filed an I-130 Visa Petition seeking permanent residence status for Anin.

On November 16, 1994, the Immigration Court scheduled a February 21, 1995 hearing on these matters, and sent notice of the hearing by certified mail to Anin's attorney of record. The notice was received and signed by someone in the office of Anin's attorney. Neither Anin nor his attorney appeared at the February hearing. At the hearing, a deportation order for Anin was entered in absentia. Later, after being notified of an interview for the I-130 Visa Petition, Anin and his wife appeared at the INS office in Atlanta and Anin was taken into custody. At that point, Anin's counsel of record claimed that he had not received notice of the deportation hearing. The attorney then informed Anin that he would be able to reopen the case. This conversation marked the first time that Anin learned of the deportation order entered in absentia against him.

A motion then was filed to reopen the deportation proceedings on account of the attorney's lack of notice. The Immigration Court denied the motion after Anin's attorney admitted that a member of his staff received and signed for the notice of the deportation hearing. Anin's lawyer never informed his client that his firm actually had received notice of the hearing. Moreover, he advised Anin that the case would be reopened as soon as his wife's I-130 Petition was approved. The BIA denied Anin's appeal on March 7, 1996. Anin was never informed of this adverse decision by his lawyer.

In December 1996, Anin learned for the first time that his appeal to the BIA had been denied by way of a "bag and baggage" letter ordering Anin to report for deportation on February 1, 1997. Anin then went to his attorney's office and examined his case file where he learned that the original notice of hearing had been received by his attorney. Anin then sought the assistance of new counsel. On February 20, 1997, almost two years after the in absentia deportation order was issued, Anin filed a new motion to reopen his deportation order alleging lack of notice, and for the first time, exceptional circumstances of ineffective assistance of counsel, and a denial of due process. Anin and his wife also filed affidavits which outlined his ineffective assistance of counsel claim as required by law. See Matter of Lozada, Interim Decision (BIA) 3059 (BIA 1988).

On July 16, 1998, a majority of the BIA, with four members Dissenting and two members not participating, denied the motion. The BIA held that Anin was time-barred under INA section 242B(c)(3)(A), 8 U.S.C. § 1252b(c)(3)(A) (1994), from advocating an "exceptional circumstance" exception to a denial of a motion to reopen a deportation order. The court ruled that the 180 day filing deadline was unambiguous and that even an ineffective assistance of counsel claim did not justify a statutory exemption. On August 10, 1998, Anin filed a petition to this Court for review of this decision.2

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This Court reviews the BIA's denial of Anin's motion to reopen his deportation order for abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). In this particular area, the BIA's discretion is quite " 'broad.' " Id. (quoting INS v. Rios-Pineda, 471 U.S. 444, 449, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985)). An immigration Judge may conduct a scheduled deportation hearing in absentia if an alien fails to...

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