March 1, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1962
FELICE IANNETTA,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
PETITION FOR REVIEW OF A FINAL ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Chief Judge,
Aldrich, Senior Circuit Judge,
and Cyr, Circuit Judge.
Steven L. Catalano, with whom Thomas F. Connors, was on
brief for petitioner.
Terese A. Wallbaum, Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, with whom
Frank W. Hunger, Assistant Attorney General, Civil Division, and
Charles E. Pazar, Attorney, Office of Immigration Litigation,
were on brief for respondent.
Per Curiam. Petitioner Felice Iannetta ("Iannetta")
Per Curiam.
appeals the Board of Immigration Appeals' (the "Board") denial of
his motion for reconsideration of his deportation proceedings.
For the following reasons, we affirm.
BACKGROUND
BACKGROUND
Iannetta, a native of Italy, entered the United States
in March 1971 on an immigrant visa. Following numerous
convictions, including four counts of assault with a deadly
weapon, the Immigration and Naturalization Service ("INS") issued
an order to show cause why Iannetta should not be deported. At a
January 1992 deportation hearing, Iannetta admitted the factual
allegations and conceded his deportability based on his numerous
convictions. He requested discretionary relief from deportation,
however, under 212(c) of the Immigration and Nationality Act.1
After the hearing, the Immigration Judge ("IJ") issued an
opinion, finding Iannetta deportable on the ground charged and
denying his request for relief under 212(c).
Iannetta appealed the IJ's decision to the Board,
maintaining that the IJ erred in balancing the equities of
Iannetta's case. On February 5, 1993, the Board summarily
dismissed the appeal as "clearly untimely" because the notice of
appeal was due on January 23, 1992, but not filed at the Office
of the Immigration Judge until February 10, 1992. Furthermore,
the required fee was not paid until January 31, 1992.
1 Section 212(c) of the Act grants the Attorney General
discretion to admit or suspend deportation of a permanent
resident who has resided in the United States for at least seven
year. 8 U.S.C. 1182(c) (1988).
Iannetta filed a motion to reopen, claiming that the
motion had been timely filed and any error was on the part of the
INS. The Board denied this motion, however, on May 21, 1993.
The Board stated the requirements for a timely appeal, which
mandate both timely payment of a fee to an INS office and
subsequent receipt of the appeal by the Office of the Immigration
Judge within 10 calendar days after the decision. The Board then
found that the evidence supported its finding of untimely filing,
and denied Iannetta's motion to reopen.
Represented by new counsel, Iannetta again challenged
the Board's decision by filing a motion to reconsider. In this
motion, Iannetta alleged that the untimely filing of his appeal
constituted ineffective assistance of counsel. The Board
rejected this motion on July 20, 1994, finding that Iannetta had
not met the evidentiary requirements for a motion based on
ineffective assistance of counsel as those requirements are set
forth in Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), aff'd,
857 F.2d 10 (1st Cir. 1988).
Iannetta now appeals the Board's rejection of this
final motion to reconsider, on three grounds. First, he argues
that he was denied effective assistance of counsel, in that his
former counsel's failure to timely file his appeal effectively
"robbed" Iannetta of the opportunity to have his appeal heard by
the Board. Second, Iannetta contends that the Board committed
reversible error in denying his request for reconsideration based
upon his ineffective assistance of counsel claim. Finally,
-3-
Iannetta argues that the Board erred in relying on Matter of
Lozada, 19 I & N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st
Cir. 1988), in denying his motion for reconsideration.
ANALYSIS
ANALYSIS
A. Ineffective Assistance of Counsel
A. Ineffective Assistance of Counsel
We have held that because deportation hearings are
civil, rather than criminal, aliens have no constitutional right
to counsel under the Sixth Amendment in these proceedings.
Lozada, 857 F.2d at 13 (citations omitted). An alien is,
however, entitled to a fair hearing under the due process clause
of the Fifth Amendment, and ineffective assistance of counsel may
under certain circumstances give rise to a due process violation.
Id. The standard for such violations is high, however; we have
held that ineffective assistance of counsel in a deportation
proceeding is a denial of due process only if the proceeding was
so fundamentally unfair that the alien was prevented from
reasonably presenting his case. Id. (quoting Ram rez-Durazo v.
INS, 794 F.2d 491, 499-500 (9th Cir. 1986) (other citations
omitted).
Iannetta argues on appeal that his right to due process
was violated by his former counsel's failure to timely file his
appeal of the IJ's deportation decision, as it "effectively
robbed" Iannetta of the opportunity to have his appeal heard on
the merits. Iannetta relies heavily on Casta eda-Su rez v. INS,
993 F.2d 142 (7th Cir. 1993), in which the untimely filing of a
212(c) relief from deportation application was found to
-4-
constitute ineffective assistance of counsel. Casta eda,
however, is inapposite and therefore unpersuasive here. In
Casta eda, the actions of the petitioner's counsel completely
deprived the alien of any opportunity whatsoever to seek
discretionary relief under 212(c), either before the IJ or the
Board. Casta eda, 993 F.2d at 144-45. This holding is
consistent with precedent in this circuit to the effect that
ineffective assistance of counsel may constitute a due process
violation if "the alien was prevented from reasonably presenting
his case." Lozada, 857 F.2d at 13-14.
In the instant case, on the other hand, Iannetta was
given a full and fair opportunity to present his case for
212(c) discretionary relief before the IJ. He therefore had one
fair hearing, and his counsel's actions were not a complete or
even partial deprivation of Iannetta's reasonable opportunity to
request 212(c) relief, as was the case in Casta eda.
Furthermore, Iannetta had no constitutional right of
review of the IJ's decision beyond what was provided, and one of
the reasonable procedural conditions of such review was the
timely filing of an appeal. Iannetta attempts to argue here that
an alien should be allowed to avoid the adverse consequences of
noncompliance with this condition by simply failing to timely
file and then claiming ineffective assistance of counsel. We
agree with the INS that such a loophole would effectively
eviscerate the timeliness requirement and render the law void.
Nor are we willing to accept Iannetta's contention that
-5-
the failure of his counsel to file a timely appeal is, by itself,
ineffective assistance of counsel rising to the level of a due
process violation. We have warned that absent "egregious
circumstances," litigants are generally bound by their
attorneys' conduct, and it is not necessarily egregious for
counsel's actions to be the basis for denying the client
discretionary relief. LeBlanc v. INS, 715 F.2d 685, 694 (1st
Cir. 1983) (citations omitted). Indeed, Iannetta has failed to
argue with any specificity how his counsel's failure to file a
timely appeal was so egregious as to violate due process; he
merely sets forth what arguments he would make to the Board if
his appeal were heard on its merits -- specifically, that the IJ
incorrectly balanced the equities of his case.2 This is simply
insufficient to establish a violation of due process, and we
therefore reject Iannetta's ineffective assistance of counsel
claim.
B. The Board's Denial of his Motion to Reconsider
B. The Board's Denial of his Motion to Reconsider
2 We note that, had the Board heard Iannetta's appeal on the
merits, it is extremely unlikely that he would have prevailed.
He admitted to twenty convictions for a variety of offenses,
including assault with a deadly weapon, passing bad checks,
banking law violations, and driving with a suspended license. In
his hearing before the IJ, he did not demonstrate any signs of
remorse or acknowledgment of culpability. Rather, his
explanations amounted to little more than a denial of
culpability. He attempted to minimize the seriousness of his
assault convictions by explaining that they were "only" domestic
disputes, and not attacks on strangers. In light of this record,
it seems rather clear that the IJ's balancing of the equities and
rejection of Iannetta's 212(c) relief claim was well-founded,
reasonable, and squarely within the bounds of discretion.
Therefore, even if he was denied effective assistance of counsel,
it is extremely dubious that he would be able to show that he was
actually prejudiced.
-6-
The Board's authority to grant or deny a motion to
reopen or reconsider deportation proceedings is discretionary.
INS v. Jong Ha Wang, 450 U.S. 139, 144 n.5 (1981). Accordingly,
we review the Board's decisions regarding such motions under an
abuse of discretion standard, reversing if the Board's actions
were arbitrary or capricious. INS v. Doherty, U.S. , 112 S.
Ct. 719, 724-25 (1992); Gebremichael v. INS, 10 F.3d 28, 34 n.17
(1st Cir. 1993); LeBlanc, 715 F.2d at 692-93.
Although Iannetta argues vehemently that the Board
abused its discretion in denying his motions to reconsider, his
argument seems to rest primarily on the fact that the Board did
not reach the merits of his appeal, but merely dismissed the
motion on the ground that his appeal was not timely filed. Our
reading of the Board's May 21, 1993 decision, however, reveals no
abuse of discretion. On the contrary, the Board clearly and with
particularity set forth its standard for reviewing a motion to
reconsider, carefully expounded the evidence before it, and found
that Iannetta had failed to meet his evidentiary burden. Nothing
in the Board's decision suggests undue haste, caprice, or
unfairness; the decision is well-reasoned and the result well
within the Board's discretion. We therefore find that the Board
did not abuse its discretion in denying Iannetta's motions to
reconsider.
C. The Board's Reliance on Matter of Lozada
C. The Board's Reliance on Matter of Lozada
Finally, Iannetta contends that the Board erroneously
relied on Matter of Lozada in its decision to deny Iannetta's
-7-
motion for reconsideration. This argument essentially rests on
his attempt to distinguish Lozada, stating that it involved a
motion for reopen, rather than a motion for reconsideration. We
find this distinction meaningless in this context, and Iannetta's
argument completely meritless. As we stated above, the Board's
denial of Iannetta's motion to reconsider was well-grounded in
both the applicable facts and the law. Even if the Board had
relied on the wrong legal standard, the record shows that
Iannetta's motion was untimely filed. Therefore, the Board was
justified in denying his motion. As we have further stated, even
if the Board had reconsidered Iannetta's case, it is extremely
unlikely given his twenty convictions that he would prevail on
appeal. In short, even assuming arguendo that there was some
error in the Board's reliance on Lozada, we simply do not see any
prejudice or harm resulting from it. Accordingly, we reject
Iannetta's arguments.
CONCLUSION
CONCLUSION
For the foregoing reasons, we dismiss Iannetta's
petition for review, and affirm the Board's denial of Iannetta's
motions and its entry of Iannetta's order of deportation.
-8-