Vaz dos Reis v. Holder

United States Court of Appeals
For the First Circuit

No. 09-2536

LUIZ CARLOS VAZ DOS REIS,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD

OF IMMIGRATION APPEALS

Before

Selya, Lipez and Howard, Circuit Judges.

Steven Lyons on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, Blair
T. O'Connor, Assistant Director, and Joseph D. Hardy, Trial
Attorney, Office of Immigration Litigation, on brief for
respondent.

May 21, 2010
 SELYA, Circuit Judge. The petitioner, Luiz Carlos Vaz

dos Reis, a Brazilian national, seeks judicial review of an order

of the Board of Immigration Appeals (BIA), which affirmed the

denial by an immigration judge (IJ) of his motion to reopen removal

proceedings. The petitioner asserts that he did not receive notice

of a scheduled hearing before the IJ; that the IJ erred by refusing

to rescind the ensuing in absentia removal order and reopen his

case; and that the BIA compounded the error by improvidently

upholding the IJ's order. Discerning no misuse of the agency's

considerable discretion in such matters, we deny the petition.

The facts are uncomplicated. On July 9, 1999, the

petitioner, his wife, and their minor son tried to enter the United

States using an invalid visa. They were taken into custody and

detained.

A credible fear interview took place on July 15, 1999.

The interviewer thought the petitioner credible, but nevertheless

issued a notice directing him to appear in the immigration court in

Miami, Florida. Two days later, immigration officials paroled the

petitioner into the United States.

The petitioner settled temporarily in Framingham,

Massachusetts, and moved successfully to transfer his case to

Boston. On December 16, 1999, he filed a change-of-address form

with the immigration court. The form recounted that the petitioner

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had moved to 10 Locust Avenue, Southampton, New York. The removal

proceedings remained before the immigration court in Boston.1

The petitioner, through counsel, filed an application for

asylum and other relief, which became part and parcel of the

removal proceedings. On March 27, 2000, the petitioner's lawyer

withdrew. The petitioner retained successor counsel in the person

of Attorney James C. Dragon, who filed an appearance on his behalf.

All notices and correspondence from the immigration court

thereafter were sent to Dragon at the office address stipulated on

his entry-of-appearance form. See 8 C.F.R. § 1292.5(a).

The IJ scheduled a hearing in the petitioner's case for

July 6, 2000. The immigration court gave written notice of the

hearing to Dragon, as the petitioner's counsel. Because the notice

contained an incorrect date, the case had to be rescheduled.

On August 17, 2000, the immigration court mailed a new

notice to Dragon, informing him that the hearing would take place

on September 28, 2000. The petitioner alleges that Dragon spoke

only with the petitioner's wife (now his ex-wife) and never told

him about the newly scheduled hearing. The petitioner further

alleges that, due to marital discord, his wife misled him, stating

that the hearing was to take place on October 28, 2000. No notice

1
The petitioner's wife and son were parties to these
proceedings, but their cases were severed from the petitioner's
after marital difficulties arose. The petitioner and his wife
divorced on April 24, 2001.

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of the September 28 hearing was sent by the court directly to the

petitioner.

On the appointed date — September 28, 2000 — Dragon

attended the hearing. The petitioner did not appear. The IJ

allowed Dragon to withdraw as counsel for the petitioner and

ordered the petitioner removed. See 8 U.S.C. § 1229a(b)(5)(A).

According to the petitioner, his wife told him about the in

absentia removal order no later than October 28, 2000.

For aught that appears, immigration officials did very

little to follow up on the removal order, and almost eight years

passed. On March 14, 2008, the petitioner moved to reopen the

removal proceedings and rescind the order. He premised this motion

on a claim of ineffective assistance of counsel, averring that

Dragon had neglected to inform him of the date and time of the

pivotal hearing.

The government opposed the motion. The IJ deemed the

motion untimely; the petitioner, by his own admission, had known of

the removal order since the fall of 2000, yet had not taken any

steps to vacate it during the intervening years.

The petitioner appealed to the BIA, positing that the IJ

had abused her discretion in denying the motion. The BIA upheld

the IJ's decision. It ruled that notice to the petitioner's

attorney of record qualified as notice to the petitioner. See 8

C.F.R. §§ 1003.26(c)(2), 1292.5(a). The BIA also observed that the

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petitioner's eight-year delay in moving to reopen demonstrated a

lack of due diligence. This timely petition for judicial review

followed.

We review decisions to grant or deny motions to reopen

for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323 (1992);

Jupiter v. Ashcroft, 396 F.3d 487, 490 (1st Cir. 2005). This

standard is not monolithic. Within it, we will uphold the agency's

subsidiary findings of fact as long as they are supported by

substantial evidence; we will assay embedded legal conclusions de

novo; and we will review judgment calls for abuse of discretion,

simpliciter. Radkov v. Ashcroft, 375 F.3d 96, 98 (1st Cir. 2004).

A material error of law constitutes a per se abuse of discretion.

Id.

When proceedings are pending in the immigration court,

the affected alien must provide the court with a written record of

his current address and must furnish a written update whenever a

change in address occurs. 8 U.S.C. § 1229(a)(1)(F). The

immigration court has a parallel set of obligations. The basic

notice requirement for removal proceedings is that "written notice

. . . shall be given in person to the alien (or, if personal

service is not practicable, through service by mail to the alien or

to the alien's counsel of record)." Id. § 1229(a)(1). The BIA has

held that personal service is deemed impracticable when the alien

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is not physically present in the immigration court. See In re

Grijalva, 21 I. & N. Dec. 27, 35 (BIA 1995).

If there is any change in either the time or place of a

scheduled hearing, the court must give written notice to the alien

either personally or through service by mail on the alien or his

counsel of record. 8 U.S.C. § 1229(a)(2)(A). An applicable

regulation glosses these basic notice requirements. The regulation

directs that any time notice to a represented alien is required,

the notice shall be served on the alien's attorney of record. 8

C.F.R. § 1292.5(a).

Assuming proper notice, a failure to appear at a removal

hearing can have dire consequences. In particular, such a failure

can ground an in absentia removal order against the non-appearing

alien. 8 U.S.C. § 1229a(b)(5)(A). Once an in absentia removal

order becomes final, it can be rescinded only if the alien can show

that either (i) his failure to appear was due to exceptional

circumstances, or (ii) no proper notice was furnished to him.2 Id.

§ 1229a(b)(5)(C). A motion to reopen based on exceptional

circumstances must be made within 180 days of the entry of the

final order of removal. See id. § 1229a(b)(5)(C)(i); see also

Beltre-Véloz v. Mukasey, 533 F.3d 7, 10 (1st Cir. 2008). In

2
Removal proceedings also can be reopened and an order of
removal rescinded if the alien can show that he was in federal or
state custody at the critical time, and that his failure to appear
was through no fault of his own. 8 U.S.C. § 1229a(b)(5)(C)(ii).
This potential avenue of relief is not implicated here.

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contrast, there is no fixed time limit for making a motion to

reopen based on lack of notice. See 8 U.S.C. § 1229a(b)(5)(C)(ii);

see also Shah v. Mukasey, 533 F.3d 25, 28 (1st Cir. 2008); Aragón-

Munoz v. Mukasey, 520 F.3d 82, 86 (1st Cir. 2008). We discuss

these two avenues to reopening in sequence.

The centerpiece of the petitioner's argument is his

assertion that his lawyer, Dragon, did not effectively assist him.

Ineffective assistance of counsel during removal proceedings may

comprise an exceptional circumstance. See, e.g., Beltre-Véloz, 533

F.3d at 10; Saakian v. INS, 252 F.3d 21, 25 (1st Cir. 2001). A

motion to reopen based on exceptional circumstances is an

appropriate way for an alien who is subject to an in absentia order

of removal to raise such a claim. Beltre-Véloz, 533 F.3d at 10.

Here, however, the petitioner has flatly disclaimed any

reliance on the exceptional circumstances construct. See Petr.'s

Br. 27. When a party disavows a particular theory of the case, it

is not an appellate court's proper role to make the disavowed

argument for him. See, e.g., United States v. Slade, 980 F.2d 27,

30 & n.3 (1st Cir. 1992) (holding that issues not briefed on appeal

are waived); United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990) (warning that courts should not be expected to "do counsel's

work").

We hasten to add that, even if the petitioner had not

foregone exceptional circumstances as a ground for reopening, his

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prospects would not be enhanced. As we have said, a motion to

reopen based on a claim of exceptional circumstances must be filed

within 180 days of the entry of the final order of removal. 8

U.S.C. § 1229a(b)(5)(C)(i). The petitioner first moved to reopen

nearly eight years after the entry of the removal order — long past

the 180-day deadline. Accordingly, he would be time-barred from

seeking to reopen on the basis of exceptional circumstances.3

This leaves the absence of notice as the only path to

reopening that conceivably might be available to the petitioner.

Seeking to travel this path, he strives to persuade us that his

lawyer's ineffectiveness led to a lack of notice of the scheduled

hearing; that this lack of notice caused his non-appearance (and,

thus, triggered the in absentia removal order); and that,

therefore, the IJ should have allowed him to reopen. We are not

persuaded.

We need not tarry. The petitioner's argument that he

lacked notice assumes that "notice" and "personal knowledge" are

one and the same. But that assumption is contradicted by the plain

3
Even though it is an open question whether the 180-day
period may be extended through equitable tolling, see Guerrero-
Santana v. Gonzales, 499 F.3d 90, 93-94 (1st Cir. 2007), no such
claim is advanced here. For the sake of completeness, however, we
note that an alien's lack of due diligence ordinarily thwarts any
attempt to invoke equitable tolling. See, e.g., Fustaguio do
Nascimento v. Mukasey, 549 F.3d 12, 18 (1st Cir. 2008); Beltre-
Véloz, 533 F.3d at 11. Given that the petitioner took no action
for many years after being told about the in absentia removal
order, this principle would seemingly defeat any claim of equitable
tolling.

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language of the relevant statute and regulation. We explain

briefly.

In order for an alien to be entitled to reopen removal

proceedings based on lack of notice, he must show, at a bare

minimum, that he did not receive notice as provided in 8 U.S.C.

§ 1229(a). For present purposes, the key provision of the statute

is subparagraph (2), which instructs that, where personal service

is impracticable, notice of any scheduling change should be served

by mail in one of two ways: either on the alien or on his counsel

of record. Id. § 1229(a)(2)(A). The plain language of the statute

indicates that notice to an alien's counsel of record constitutes

notice to the alien. See id.

The implementing regulation, 8 C.F.R. § 1292.5(a), drives

this point home. It provides that notice of, inter alia,

scheduling changes may be effected by service upon the alien's

"attorney or representative of record." Id.

Courts have not hesitated to hold that both the statute

and the regulation say what they mean and mean what they say. See,

e.g., Pervaiz v. Gonzales, 405 F.3d 488, 490 (7th Cir. 2005);

Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir. 2003); Garcia v. INS,

222 F.3d 1208, 1209 (9th Cir. 2000) (per curiam); Anin v. Reno, 188

F.3d 1273, 1277 (11th Cir. 1999) (per curiam). We are of that

view.

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 The petitioner cannot surmount this barrier. He concedes

that Dragon was both his attorney of record and duly served with

notice of the hearing. Given the tenor of the statute and the

regulation, service on Dragon was in contemplation of law the

equivalent of service on the petitioner himself. Thus, the

petitioner has not shown a lack of notice sufficient, under 8

U.S.C. § 1229a(b)(5)(C)(ii), to justify reopening his removal

proceedings.

In an effort to blunt the force of this reasoning, the

petitioner asseverates that notice to his attorney of record did

not constitute notice to him because his attorney failed to alert

him to the hearing date. But with respect to motions to reopen

removal proceedings, courts typically have treated ineffective

assistance of counsel under the "exceptional circumstances" prong

of the statute. See, e.g., Aris v. Mukasey, 517 F.3d 595, 599 (2d

Cir. 2008) (holding that "a lawyer's inaccurate advice to his

client concerning an immigration hearing date can constitute

'exceptional circumstances' excusing the alien's failure to appear

at a deportation hearing"); Lo v. Ashcroft, 341 F.3d 934, 937-38

(9th Cir. 2003) (similar).

The petitioner's asseveration, refined to bare essence,

invites us to scrap this taxonomy and treat ineffective assistance

of counsel — Dragon's failure to communicate with his client — as

something other than an exceptional circumstance. Accepting this

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invitation would require us, without rhyme or reason, to turn a

blind eye to the relevant precedents.4 See, e.g., Fustaguio do

Nascimento v. Mukasey, 549 F.3d 12, 16 (1st Cir. 2008); Beltre-

Véloz, 533 F.3d at 10.

The sort of easy evasion proposed by the petitioner

would, if allowed, seriously compromise the 180-day deadline

specified by Congress in 8 U.S.C. § 1229a(b)(5)(C)(i). We see no

justification for taking so unprincipled a step. Consequently, we

hold that this easy evasion is not available to the petitioner. An

alien cannot skirt the statutory 180-day deadline simply by

relabeling his claim as one based on lack of notice.

We need go no further. For the reasons elucidated above,

we hold that there was no abuse of discretion involved in either

the IJ's denial of the petitioner's motion to reopen or the BIA's

affirmance of that ruling.

The petition for judicial review is denied.

4
While the case law consistently treats ineffective
assistance of counsel as an exceptional circumstance, only a
handful of unpublished decisions have dealt with the precise
situation in which, as here, notice was served only on an alien's
counsel of record and the alien claimed that he did not receive
notice because of counsel's failure to relay the information.
Without exception, those decisions have rejected the lack of notice
claim, concluding that the exceptional circumstances prong
constituted the exclusive avenue for recourse vis-à-vis ineffective
assistance of counsel. See, e.g., Illescas-Pinos v. Holder, 351 F.
App'x 954, 957 (5th Cir. 2009); Simtion v. Gonzales, 233 F. App'x
578, 580-81 (7th Cir. 2007).

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