In re a-a-
| Decision Date | 16 July 1998 |
| Docket Number | Interim Decision No. 3357. |
| Parties | In re A-A-, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
Before: Board En Banc: VACCA, HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON, JONES, and GRANT, Board Members. Concurring and Dissenting Opinions: ROSENBERG, Board Member; GUENDELSBERGER, Board Member. Dissenting Opinions: SCHMIDT, Chairman; VILLAGELIU, Board Member.
MATHON, Board Member.
In a decision dated February 21, 1995, an Immigration Judge ordered the respondent deported in absentia after he failed to appear for a scheduled deportation hearing. On April 13, 1995, the Immigration Judge denied a motion to reopen to rescind the outstanding deportation order. The Board affirmed the Immigration Judge's decision on March 7, 1996. The respondent filed this motion to reopen with the Board on February 21, 1997. The motion will be denied.
The respondent is a 34-year-old native and citizen of Burkina-Faso. He entered the United States on October 30, 1991, as an alien in transit with authorization to remain in the country until October 31, 1991. On July 26, 1994, the Immigration and Naturalization Service served the respondent with an Order to Show Cause and Notice of Hearing (Form I-221), charging him with being deportable from the United States under section 241(a)(1)(B) of the Immigration and Naturalization Act, 8 U.S.C. § 1251(a)(1)(B) (1994), as an alien who remained in the United States for a time longer than permitted.
By means of a Notice of Entry of Appearance as Attorney (Form EOIR-28) dated August 13, 1994, an attorney notified the Immigration Court of his intent to represent the respondent in deportation proceedings. In a letter dated November 16, 1994, the respondent was notified that he was scheduled to appear before an Immigration Judge on February 21, 1995, at an Immigration Court in Atlanta, Georgia. The letter was mailed to the respondent's attorney of record on November 16, 1994. An individual at the respondent's attorney's office signed for the notice on November 21, 1994.
Neither the respondent nor his attorney of record appeared for the scheduled deportation hearing. The Immigration Judge conducted the proceedings in absentia and, in a decision dated February 21, 1995, ordered the respondent deported pursuant to section 242B(c)(1) of the Act, 8 U.S.C. § 1252b(c)(1) (1994). The respondent claims that he was not informed by his attorney of record of the scheduled deportation hearing until he received the subsequent deportation order.
On April 7, 1995, the respondent, who continued to be represented by his former attorney, filed a motion to reopen to rescind the outstanding deportation order. See section 242B(c)(3) of the Act. The respondent asserted that he did not receive notice of the February 21, 1995, hearing. On April 13, 1995, the Immigration Judge denied the motion. He concluded that no substantial grounds had been advanced to warrant rescission of the outstanding order. The respondent appealed the Immigration Judge's decision to the Board on May 22, 1995. On March 7, 1996, we dismissed the appeal, concluding that the respondent received proper notice of the February 21, 1995, hearing in that it was sent to and received by the respondent's attorney of record. See section 242B(a)(2) of the Act; 8 C.F.R. § 292.5(a) (1995).
On February 21, 1997, the respondent, represented by new counsel, filed a motion to reopen with the Board and requested a stay of deportation.1 The motion seeks to reopen the proceedings to rescind the outstanding deportation order pursuant to section 242B(c)(3)(A) of the Act. In particular, the respondent argues that he failed to attend the scheduled February 21, 1995, deportation hearing on account of an exceptional circumstance, namely the ineffective assistance of his counsel. The evidence of record indicates that on February 11, 1997, the respondent filed a grievance against his former attorney with the State Bar of Georgia.2 In addition, he has submitted an affidavit in support of the motion and informed his former attorney of the claim of ineffective assistance of counsel.
The respondent argues that he merits reopening of the proceedings on account of exceptional circumstances, notwithstanding the fact that the motion was filed 721 days after the Immigration Judge's issuance of the deportation order pursuant to section 242B of the Act. He concedes that there is a time limit, 180 days after the Immigration Judge's order, for the filing of motions to reopen under section 242B(c)(3)(A) of the Act, and he acknowledges that his motion filed on February 21, 1997, does not meet the statutory time limit. However, he contends that the time bar should not apply in this case, given that the failure to timely file was due to the ineffective assistance of his former counsel.
The issue before the Board is whether a claim of ineffective assistance of counsel constitutes an exception to the 180-day time limit under section 242B(c)(3)(A) of the Act.
Section 242B(c)(3) of the Act provides for the rescission of a deportation order entered in absentia under section 242B(c)(1) as follows:
RESCISSION OF ORDER.—Such an order may be rescinded only—
(A) upon a motion to reopen filed within 180 days after the date of the order of deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (f)(2)), or
(B) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with subsection (a)(2) or the alien demonstrates that the alien was in Federal or State custody and did not appear through no fault of the alien.
Section 242B(c)(3) of the Act (emphasis added).
The use of the term "only" makes this the exclusive method for rescinding an in absentia deportation order entered pursuant to section 242B(c) of the Act. See Matter of Gonzalez-Lopez, 20 I&N Dec. 644, 646 (BIA 1993).
Section 242B(c)(3)(A) of the Act expressly requires that a motion to reopen to rescind an in absentia deportation order based on exceptional circumstances be filed within 180 days of the order. The record in this case reflects that the order of deportation was entered on February 21, 1995. The respondent did not file his current motion until February 21, 1997, well beyond the 180 days allotted by the statute. Therefore, we find that the respondent is statutorily barred from rescinding the deportation order under section 242B(c)(3)(A).3
The respondent concedes that the time limit for filing a motion to reopen based upon exceptional circumstances has elapsed. However, he essentially urges us to create an exception to the 180-day rule where the failure to timely file a motion to reopen is due to the ineffective assistance of counsel and where the requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988), have been satisfied. We decline to do so.
It is well settled that the language of the statute is the starting point of statutory construction. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). The plain meaning of the words used in the statute as a whole has been held to be the paramount index of congressional intent. Id. at 431; Matter of W-F-, 21 I&N Dec. 503, at 507 (BIA 1996). Moreover, it is assumed that the legislative purpose is expressed by the ordinary meaning of the words used. INS v. Phinpathya, 464 U.S. 183, 189 (1984); see also Matter of Shaar, Interim Decision 3290 (BIA 1996), aff'd, Shaar v. INS, 141 F.3d 953 (9th Cir. 1998),
The language of section 242B(c)(3)(A) of the Act regarding the time limit within which a motion to reopen must be filed is clear on its face and unambiguous. It provides that an in absentia deportation order entered pursuant to section 242B(c) may be rescinded "only upon a motion to reopen filed within 180 days after the date of the order of deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances." Section 242B(c)(3)(A) of the Act (emphasis added). The statute contains no exceptions to this time bar. Where the statutory language is clear, "that is the end of the matter" and we "must give effect to the unambiguously expressed intent of Congress." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984); see also Matter of W-F-, supra, at 506-507. Accordingly, we are bound to uphold and apply the plain meaning of the statute as written. Had Congress intended to provide for an exception to the 180-day time limit based on the ineffective assistance of counsel, it could have done so.
This conclusion is consistent with the overall statutory scheme of section 242B of the Act. Section 242B was added to the Act by section 545(a) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5061-65 (enacted Nov. 29, 1990). See generally Matter of Gonzalez-Lopez, supra. It was enacted to provide stricter and more comprehensive deportation procedures, particularly for in absentia hearings, to ensure that proceedings are brought to a conclusion with meaningful consequences. See Matter of Grijalva, 21 I&N Dec. 27, at 31 (BIA 1995); Matter of Villalba, 21 I&N Dec. 842, at 845 n.2 (BIA 1997); 136 Cong. Rec. S17,109 (daily ed. Oct. 26, 1990); 136 Cong. Rec. H8630 (daily ed. Oct. 2, 1990). The 180-day time limit reflects congressional intent...
To continue reading
Request your trial