Scorteanu v. I.N.S.
| Decision Date | 07 August 2003 |
| Docket Number | No. 01-4271.,01-4271. |
| Citation | 339 F.3d 407 |
| Parties | Cornel Viorel Scorteanu, Petitioner, v. Immigration and Naturalization Service, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Michael E. Piston (argued and briefed), Sufen Li (briefed), Troy, Michigan, for Petitioner.
Papul Sandhu, Hillel R. Smith (argued), UNITED STATES DEPARTMENT OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION, Washington, D.C., for Respondent.
James A. Hunolt (briefed), Emily A. Radford, UNITED STATES DEPARTMENT OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION, Washington, D.C., Earle B. Wilson, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Emily A. Radford (briefed), U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Before: KRUPANSKY, SILER, and GILMAN, Circuit Judges.
This appeal arises from a decision by the Board of Immigration Appeals ("BIA" or "Board") to dismiss a motion by petitioner, Cornel Viorel Scorteanu ("Scorteanu"), to reopen deportation proceedings pursuant to section 242B(c)(3) of the Immigration and Nationality Act ("INA" or "Act"), 8 U.S.C. § 1252b(c)(3), alleging ineffective assistance of counsel.1 For the reasons discussed below, the Board's order of dismissal is affirmed.
Petitioner Scorteanu is a 31-year-old native and citizen of Romania, of Hungarian ethnicity, who entered the United States at Chicago, Illinois on June 20, 1994 as a B-2 visitor for pleasure. His visa authorized him to remain in the United States until December 19, 1994. On September 15, 1994, petitioner applied for asylum. The Chicago Asylum Office referred his application to an Immigration Judge ("IJ"). Petitioner was served with an Order to Show Cause ("OSC"), dated September 6, 1995, charging deportability as an overstay under Section 241(A)(1)(c)(i) of the INA. During the pendency of his merits hearing, petitioner married a United States citizen.
Petitioner retained Attorney Ronald A. Muresan ("Muresan") to represent him in his asylum case. On April 11, 1996, Scorteanu appeared with Muresan before an IJ for a Master Calendar hearing where petitioner renewed his asylum application and the IJ scheduled an Individual Merits Hearing for November 19, 1996. On November 8, 1996, Muresan informed petitioner by telephone that the immigration court had rescheduled the merits hearing and would send Muresan a written notice of a new date. Attorney Muresan received a letter, dated November 8, 1996, by certified mail from the immigration court, advising that Scorteanu's deportation hearing was rescheduled for March 26, 1997. Muresan never advised petitioner of the new hearing date, nor did he file the requested notice of petitioner's change of address with the immigration court. In the months that followed, Scorteanu contacted Muresan several times regarding notice of a new hearing date and, each time, Muresan informed petitioner that he would notify petitioner when he received the new hearing date.
Unbeknownst to Scorteanu, during this period, Muresan was suspended and eventually disbarred from the practice of law. Muresan did not advise petitioner of this development nor inform the immigration court of his suspension. As a consequence of Muresan's representation, petitioner did not receive a copy of the hearing notice and neither Scorteanu nor Muresan attended the March 26, 1997 merits hearing where, consequently, petitioner was ordered deported in absentia to Romania. During 1997 and 1998 Muresan fraudulently advised Scorteanu that his asylum case was still pending before the immigration court. In early 1999, Scorteanu learned from members of the Romanian community in Michigan that Muresan had been disbarred.
Scorteanu then turned to attorney Mosabi Hamed. Previously, after his 1996 marriage to a United States citizen, petitioner had retained Hamed to handle his I-130 Immigrant Petition for Alien Relative. Throughout 1999, Scorteanu kept in contact with Hamed regarding his asylum petition even though Hamed was not petitioner's attorney of record for those proceedings. Hamed continued to advise Scorteanu that he had inquired into petitioner's asylum case and assured him that it was still pending.2
On January 18, 2000, Scorteanu retained new counsel. As a result of his new counsel's inquiry with the Immigration and Naturalization Service ("INS"), petitioner learned of the in absentia Order of Deportation of March 26, 1997 in late March of 2000.3 Nevertheless, Scorteanu waited until February 12, 2001 to file a Motion to Reopen Deportation Proceedings with the immigration court. For that proceeding Scorteanu submitted his own affidavit and an affidavit from former attorney Muresan detailing his ineffective assistance of counsel.
In denying Scorteanu's Motion to Reopen, the IJ determined in her March 15, 2001 Order that petitioner had exceeded the statutory time limit of 180 days for filing a motion to reopen based on exceptional circumstances pursuant to INA § 242B(c)(3)(A). See Matter of A-A-, Int. Dec. 3357 (BIA 1998). The IJ further observed that attorney Muresan's acknowledged receipt of notice for the March 26, 1997 deportation hearing met the statutory requirements of the act. See INA § 242B(a)(2). Finally, the court addressed, sua sponte, the effect of Muresan's fraud, noting: "Even assuming arguendo that the petitioner had some basis to assert a claim for tolling of the 180 days, more than that period elapsed between actual notice of the entry of the Court's order and the filing of the instant motion."
Scorteanu petitioned for review of the IJ's denial before the BIA on April 13, 2001. The BIA returned a dismissal of petitioner's appeal on November 9, 2001. The Board noted that petitioner's motion was filed well beyond the 180 day statutory time limit pursuant to § 242B(c)(3)(A) of the Act. The Board also addressed the IJ's sua sponte consideration of the possibility of equitable tolling of the 180 day time limit, observing that such equitable relief was unavailable when a party, such as the petitioner, failed to exercise due diligence on his own behalf, filing the recision motion almost a year after actual notice. Scorteanu then perfected this timely appeal.
Jurisdiction over this petition is conferred upon this Court by section 106 of the Immigration and Nationality Act, 8 U.S.C. § 1105a as it existed immediately prior to April 1, 1997, the effective date of the Illegal Immigration Reform and Responsibility Act of 1996 ("IIRIRA").
The Court reviews the denial of a motion to reopen deportation proceedings for abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Ashki v. INS, 233 F.3d 913, 921 (6th Cir.2000); see also INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
Pursuant to section 242B(c)(3) of the Act, the IJ and the BIA are permitted as a matter of discretion to rescind an in absentia order of deportation under limited circumstances. See Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996). An in absentia order of deportation may be rescinded upon a motion to reopen filed at any time if the alien demonstrates that he or she did not receive notice in accordance with the requirements in section 242B(a)(2) of the Act. 8 U.S.C. § 1252B(c)(3)(B) (1994). Alternatively, an in absentia order may be rescinded upon a motion to reopen filed within 180 days of the date of the deportation order "if the alien demonstrates that the failure to appear was because of exceptional circumstances as defined in subsection (f)(2) of this section." § 242B(c)(3)(A). Thus, in seeking recision of an in absentia deportation order, the burden rests on the movant to demonstrate either improper notice or exceptional circumstances. See Giday v. INS, 113 F.3d 230, 233 (D.C.Cir.1997).
Scorteanu has, first, averred that section 242B(c)(3)(B) of the Act permitted him to file a motion to reopen the in absentia order of deportation at any time because he failed to receive notice of the hearing. Petitioner has specifically contended that the language of section 242B(c)(3)(B) requires notice of a scheduled deportation hearing to the alien while making notice to the alien's attorney insufficient, because section 242B(c)(3)(B) refers to notice "to the alien," rather than to the alien or the alien's counsel. A brief examination of the applicable statutory language reveals the inadequacy of petitioner's contention.
Section 242B(c)(3)(B) of the Act directs that an in absentia,
order may be rescinded only —
...
(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.
8 U.S.C. § 1252b(c)(3)(B) (1994). The referenced subsection 242B(a)(2) of the Act provides as follows:
...
(B) in the case of any change or postponement in the time and place of such proceedings, written notice shall be given in person to the alien (or, if personal service is not practicable, written notice shall be given by certified mail to the alien or to the alien's counsel of record, if any)
8 U.S.C. § 1252b(a)(2)(A) & (B) (1994).
Petitioner has admitted that attorney Muresan, his then counsel of record, received proper certified notification of the March 26, 1997 hearing. Because § 242B(c)(3)(B) provides for reopening of in absentia proceedings only as a "remedy for improper service," relief under this section is...
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