Anin v. Reno

• Decision Date: 12 July 1999
• Docket Number: No. 98-9013,98-9013
• Citation: 188 F.3d 1273
• Parties: (11th Cir. 1999) ALEXIS ANIN, PETITIONER, v. JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENTS
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1273

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

ALEXIS ANIN, PETITIONER, v. JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENTS

No. 98-9013

United States Court of Appeals, Eleventh Circuit

July 12, 1999

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.

I.

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

II.

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 appear at the appointed time.³ However, a deportation order entered in absentia may be rescinded if a petitioner proves that his failure to appear resulted from exceptional circumstances or a lack of proper notice.⁴ Under this statutory framework, we evaluate Anin's petition to reopen his deportation proceedings.

The INA's plain language clearly allows the INS to fulfill its notice requirement in deportation proceedings by notifying an alien's attorney through certified mail.⁵ Anin concedes that his attorney of record at the time received notice of the February deportation hearing by certified mail in accordance with this provision of the INA. Furthermore, no statutory provision requires an alien to receive actual notice of a deportation proceeding. Indeed, the Code of Federal Regulations instructs that notice be provided to the attorney of record rather than the alien.⁶

The Federal Rules of Civil Procedure also favor notice of counsel of record rather than actual notice of the client. See Fed.R.Civ.P. 5(b) (stating that "whenever service under these rules is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party is ordered by the court"). Case precedent also indicates that actual notice of an alien is not required under the INA. See Sewak v. INS, 900 F.2d 667, 669 n. 6 (3d Cir.1990) (noting in dicta that notice to attorney comprised actual notice to alien); Reyes-Arias v. INS, 866 F.2d 500, 502-3 (D.C.Cir.1989) (finding actual knowledge of attorney constitutes reasonable notice); Newton v. INS, 622 F.2d 1193, 1194 (3d Cir.1980) (holding that notice to original attorney not formally withdrawn comprised proper notice). Anin received notice as required by the INA. His lawyer received notice via certified mail. The statute unambiguously holds Anin responsible for his lawyer's actions and omissions. Therefore, despite the fact that Anin may not have received actual notice, the BIA did not abuse its discretion in denying his motion to reopen his deportation proceeding.

Additionally, the fact that Anin did not receive actual notice of the deportation hearing does not present a violation of the Due Process Clause. Although procedural due process in the deportation context requires a meaningful and fair hearing with a reasonable opportunity to be heard, see Landon v. Plasencia, 459 U.S. 21, 32-3, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982); Nazarova v. INS, 171 F.3d 478, 482 (7th Cir.1999), it does not demand that an alien receive actual notice. Due process is satisfied if notice is accorded "in a manner 'reasonably calculated' to ensure that notice reaches the alien." Farhoud v. INS, 122 F.3d 794, 796 (9th Cir.1997) (quoting United States v. Estrada-Trochez, 66 F.3d 733, 736 & 736 n. 1 (5th Cir.1995)); cf. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 318, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (finding that "notice must be such as is reasonably calculated to reach interested parties"). In this case, the INS simply followed the INA statute and chose a method of notice authorized by the statute-a method Congress itself determined was reasonably calculated to ensure proper notice. See 8 C.F.R. § 292.5(a) (1999); INA § 242B(a)(2), (c)(1), 8 U.S.C. § 1252b(a)(2), (c)(1) (1994). This method of notification does not violate an alien's due process rights. See Farhoud, 122 F.3d at 796 (holding that alien need not receive actual notice for due process requirements to be satisfied); Wijeratne v. INS, 961 F.2d 1344, 1346 (7th Cir.1992) (holding that due process rights were not violated when alien claimed a lack of actual notice but his attorney received notice); cf. Furlong v. Havee, 885 F.2d 815, 818 (11th Cir.1989) (finding that "notice to counsel afforded appellants all the due process they were due" in bankruptcy proceedings). So long as the method of notification was "reasonably calculated" to procure notice, the notice requirements of due process are satisfied. Id. For this reason, the BIA's refusal to reopen Anin's deportation proceeding did not violate due process.

The BIA also did not err in refusing to reopen Anin's deportation order based on an ineffective assistance claim. Section 242B(c)(3)(A) of the INA contains an 180 day filing...