Georcely v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-1922

DIEUDONNA GEORCELY,

Petitioner,

v.

JOHN ASHCROFT, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,

Torruella and Howard, Circuit Judges.

David Iverson on brief for petitioner.
Michelle R. Thresher, Office of Immigration Litigation, Civil
Division, Department of Justice, Peter D. Keisler, Assistant
Attorney General, Civil Division, Department of Justice, and
Linda S. Wendtland, Assistant Director, Office of Immigration
Litigation, on brief for respondent.

July 12, 2004
 BOUDIN, Chief Judge. Dieudonna Georcely, a citizen of

Haiti, arrived in the United States Virgin Islands on or about

January 25, 2002. In January 2002, the Immigration and

Naturalization Service (“INS”), as it was then named, charged

Georcely with removability under 8 U.S.C. § 1182(a)(6)(A)(i) (2000)

as an alien who had arrived in the United States without lawful

authority. Georcely conceded removability but said that he

intended to apply for asylum, withholding of removal, and relief

under the Convention Against Torture.1

On or about March 15, 2002, the immigration judge set a

hearing to be held in St. Thomas, the Virgin Islands, on April 29,

2002. Georcely had by then apparently relocated to Boca Raton,

Florida, to stay with a cousin. On April 11, 2002, his lawyer

mailed to the immigration judge a motion to change venue to Miami,

Florida. The day before the scheduled hearing Georcely's counsel

called the immigration court and was informed that the court had

not yet received the motion.

Neither Georcely nor his counsel appeared at the April

29, 2002, hearing. As is permitted by the statute, the immigration

1
Asylum and withholding of removal are both administrative
measures, with somewhat different incidents, that can be invoked by
an alien who is threatened with harm. See 8 U.S.C. §§
1101(a)(42)(A), 1158(b)(1), 1231(b)(3)(A) (2000); 8 C.F.R. §§
208.13(b), 208.16 (2004); see also Mekhoukh v. Ashcroft, 358 F.3d
118, 130 (1st Cir. 2004).

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judge conducted the hearing in absentia, 8 U.S.C. § 1229a(b)(5)(A)

(2000), and on that same day ordered Georcely removed to Haiti.

On June 25, 2002, Georcely's counsel filed a motion to

reopen and change venue claiming that Georcely "in good faith

believed that a change of venue to the Miami District, where he was

residing, would be or had been granted." The apparent delay in the

mail and failure of the immigration court to approve the transfer

were, he asserted, events "beyond the knowledge much less control

of the alien" and supported a finding of “exceptional

circumstances" justifying relief. See 8 U.S.C. § 1229a(b)(5)(C),

(e)(1) (2000).

The INS opposed the request to reopen and on July 18,

2002, the immigration judge denied Georcely's motion. The judge

said that Georcely's attorney had "filed many motions for reopening

claiming the same situation," that neither an alien nor his counsel

were entitled to assume that a motion to change venue will be

granted, and that Georcely's counsel was "well aware" that the

motion had not been granted because he had called the court the day

before and was told the motion had not arrived.

On August 16, 2002, Georcely filed a motion to

reconsider. He said it was reasonable for him to believe that the

motion would be granted because at an earlier bond reduction

hearing for Georcely, the immigration judge had inquired of the INS

whether it would oppose a change in venue to the Miami district if

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the petitioner so requested, and the INS attorney allegedly said

she would have no objection. Georcely's counsel also argued that

it was reasonable for him to think that his mailed motion would

arrive within 5 to 7 days--well within the 18 days before the

hearing.

Georcely's counsel stated that his alien client "had

inquired repeatedly” as to whether the motion to change venue had

been sent and was told that it had been. Accordingly, Georcely

“was unaware” that the motion had not been received or granted and

that he had not been excused from appearing in St. Thomas. Even if

Georcely had known that he was not excused, said counsel, Georcely

could not have arrived in St. Thomas “on one day's notice."

Finally, Georcely’s counsel cited Matter of Lozada, 91 I.

& N. Dec. 637 (BIA 1988), as holding that “ineffective assistance

of counsel is another ground for finding of exceptional

circumstances.” He described as “analogous” another case (Matter

of Grijalva-Barrera, 21 I. & N. Dec. 472 (BIA 1996)), where relief

was granted because counsel as a "tactic of delay” deliberately

misinformed the respondent that he did not have to appear. Counsel

continued:

Lozada required that a bar complaint be filed
in order to claim ineffective assistance of
counsel; however, [Esposito v. INS, 987 F.2d
108, 110-11 (2d Cir. 1993) and Figueroa v.
INS, 886 F.2d 76 (4th Cir. 1989)] hold that
ineffective assistance of counsel can be
established without such complaint being made.
Obviously, undersigned is less than

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 comfortable making a self-denunciation to the
bar, but will do so if the Court so requires.

The immigration judge denied the motion to reconsider,

saying that this was the fifth time the court had to confront

counsel’s “way of representing clients before this Court” and that

the court "will not tolerate any longer this counsel's way of

representing clients before this Court”; that lawyers who file

motions have to take account of the mails; and that “counsel was

less than diligent in this and all the other cases where he brings

up the same shaky excuses.”

Georcely's counsel then filed an appeal to the Board of

Immigration Appeals ("BIA"), repeating earlier arguments and adding

that Georcely, "unemployed and indigent, would not have been able

to afford a ticket to go to St. Thomas in any event." The BIA

denied the appeal, saying in substance that the exceptional

circumstances test was intended for compelling matters (e.g., a

serious illness preventing attendance) and did not include an

alien's voluntary absence from a scheduled hearing.

Georcely now appeals to this court. At the threshold,

we face an issue of venue. Shortly before the scheduled oral

argument, Georcely's counsel moved to submit the case without

argument (a motion we granted), observing in passing that the case

arose in the Virgin Islands and that the Third Circuit customarily

had jurisdiction over cases arising in the Virgin Islands. See 28

U.S.C. § 1291 (2000); 48 U.S.C. § 1613a(c) (2000); Government of

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Virgin Islands v. Rivera, 333 F.3d 143, 146 (3d Cir. 2003).

Construing this as a motion to change venue, the government

responded, saying that it

agree[d] with the Petitioner that because the
hearing during which the Petitioner was
ordered removed in absentia took place in the
Virgin Islands, this case is not properly
before this Court, and should be transferred
to the Third Circuit.

The applicable statute for review of INS decisions, 8

U.S.C. § 1252(b)(2) (2000), provides (as to “venue and forms”) that

“[t]he petition for review shall be filed with the court of appeals

for the judicial circuit in which the immigration judge completed

the proceedings." The question posed by this language--actually a

double question of some difficulty--can be understood only against

the background of the geographic operations of the immigration

court in the Caribbean.

It appears from the information available to us that the

immigration court responsible for the present case is based in

Guaynabo, Puerto Rico, that it has jurisdiction over Puerto Rico,

St. Thomas and St. Croix (the latter two being U.S. Virgin

Islands), and that the immigration judge based in Guaynabo holds in

person hearings in the Virgin Islands as well as telephonic

hearings with St. Croix.2 In our case--perhaps in all such cases--

2
See United States Department of Justice, Guaynabo, PR
Immigration Court - Frequently Asked Questions, at
http://www.usdoj.gov/eoir/sibpages/saj/faq.htm (last visited May
25, 2004).

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stamps on the documents indicate that filings by counsel with the

immigration court were sent to and docketed in Guaynabo.

Here, the immigration judge conducted the in absentia

hearing that resulted in the removal order in St. Thomas; but there

is a reasonable likelihood that the order was officially filed and

docketed at the headquarters in Guaynabo; admittedly, the record is

unclear on this point.3 If the removal order "completed" the

proceedings, the question posed would be whether the completion

occurred in the Third Circuit where the ruling was made (St.

Thomas) or the First Circuit (Guaynabo) where we think that the

order was officially filed and docketed.

If the order was officially filed and docketed in

Guaynabo, the most straightforward reading of the language of

section 1252(b)(2) would probably lead us to conclude that the

removal proceedings were completed in Guaynabo (assuming that they

were completed by the removal order rather than by the later denial

of the motion to reopen). This is so because a judicial order is

normally effective when filed and docketed, see United States v.

Fiorelli, 337 F.3d 282, 287 (3d Cir. 2003); Willhauck v. Halpin,

953 F.2d 689, 701 (1st Cir. 1991); 11 Wright, Miller, and Kane,

3
Mysteriously the removal order itself has a typed letterhead
and, after the legend "Immigration Court," there follows on a new
line, "St. Thomas, Virgin Islands." Whether this latter reference
is merely to the site of the hearing or whether there is some
arrangement for filing and docketing in St. Thomas remains
unexplained.

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Federal Practice and Procedure § 2785 (2d ed. 1995 & Supp. 2004),

although exceptions exist. As it happens, the appeal in this case

was originally filed in the Eleventh Circuit, presumably because

counsel hoped to associate it with the Miami office of the INS.

When the INS then moved for a transfer to this circuit, a motion

not opposed by Georcely, the INS said that “the immigration judge

completed proceedings in San Juan, Puerto Rico.”

This view that the place of filing and docketing controls

must be tentative. The statutory language is so far from

conclusive, see Ramos v. Ashcroft, No. 03-4050, 2004 U.S. App.

Lexis 11692, at *2-*3 (7th Cir. June 15, 2004), that absent

legislative history, policy concerns would matter if they weighed

heavily on either side. Further facts might affect the outcome

(e.g., perhaps the removal order for some reason was effective when

announced). And, most important, a definitive ruling is

unnecessary here because--as we will see--the venue issue has been

forfeited.

In the interest of getting issues on the table, a further

complication should be mentioned. Even if the removal proceedings

might otherwise be deemed to have been completed in St. Thomas

(contrary to our tentative assessment), the removal order itself

was followed by a motion to reopen, later denied without an oral

hearing. Both the motion and the order denying it were filed and

docketed in Guaynabo. See also 8 C.F.R. § 1003.31(a) (2004) ("All

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documents and applications that are to be considered in a

proceeding before an Immigration Judge must be filed with the

Immigration Court having administrative control over the Record of

Proceeding.") In such a case, does Guaynabo thereby become the

place of completion?

On this issue, the government argues that the place where

the immigration judge "completed" the proceedings is the place

where the immigration judge issued a final order of removal

"notwithstanding the fact that [an] alien subsequently files a

motion to reopen or reconsider, except when the Judge grants the

Petitioner's motion and reopens proceedings." The government reads

Nwaokolo v. INS, 314 F.3d 303 (7th Cir. 2002), as suggesting an

opposite reading of the statute but regards it as mistaken.

In all events, we need not resolve such questions. The

challenge is to venue, not jurisdiction; the statute says so, as

does Nwaokolo, 314 F.3d at 306. Objections to venue are normally

waived unless asserted in timely fashion. 28 U.S.C. § 1406(b)

(2000); W.A. Stackpole Motor Transp., Inc. v. Malden Spinning &

Dyeing Co., 263 F.2d 47, 50 (1st Cir. 1958); 15 Wright, Miller &

Cooper, Federal Practice and Procedure § 3829 (2d ed. 1986).

Although section 1406(b) explicitly requires a “timely” objection

in district court proceedings, Nwaokolo, 314 F.3d at 306, found the

same requirement implicitly applicable to immigration appeals, as

do we.

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 Venue requirements are normally for the convenience of

the parties and, if the parties do not object, ordinarily there is

no policy objection to proceeding in any court with jurisdiction.

Here, the government sought, and Georcely did not contest, the

transfer to this circuit as the appropriate venue--and certainly

that was a colorable contention. Any contrary suggestion,

belatedly made on the eve of a scheduled argument, is forfeited and

need not be considered.

No one circuit can speak definitively as to when the

proceedings are “completed,” and yet uniform rules are highly

desirable for both the courts and the litigants. Perhaps INS

regulations would help toward a solution, see Ramos v. Ashcroft,

supra, 2004 U.S. App. Lexis 11692, at *2 (suggesting that course);

Congress can certainly provide one. Copies of this decision will

be sent to the appropriate congressional authorities and, in this

case, to the Attorney General.

Turning to the merits, we begin with the statutory

framework. When the BIA issues its own opinion, we review the

Board's decision and not the immigration judge's. Albathani v.

INS, 318 F.3d 365, 373 (1st Cir. 2003). The statute governing

judicial review of in absentia removal orders confines review to

certain limited issues but among them is "the reasons for the

alien's not attending the proceeding." 8 U.S.C. § 1229a(b)(5)(D).

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The standard of review ordinarily varies with the nature of the

issue, Bolton v. Taylor, 367 F.3d 5, 7-8 & n.1 (1st Cir. 2004).

An order for removal entered in absentia may be rescinded

"upon a motion to reopen filed within 180 days after the date of

the order of removal if the alien demonstrates that the failure to

appear was because of exceptional circumstances." 8 U.S.C. §

1229a(b)(5)(C). The statute says that this means “exceptional

circumstances (such as serious illness of the alien or serious

illness or death of the spouse, child, or parent of the alien, but

not including less compelling circumstances) beyond the control of

the alien." Id. § 1229a(e)(1).

It appears that Georcely knew that a hearing had been set

in St. Thomas--the notice to him so provided--and that his lawyer

had moved for a transfer of the matter to Miami. But there is no

claim that his lawyer told him that the motion had been granted.

So Georcely, as well as his lawyer, were obligated to appear at the

St. Thomas hearing. Simply to assume that the motion would be

granted because the INS had not objected is not remotely an

exceptional circumstance beyond the alien’s control. See Tang v.

Ashcroft, 354 F.3d 1192, 1195 (10th Cir. 2003).

The exceptional circumstances requirement, a fairly tough

one, was adopted by Congress precisely because failures to appear

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at scheduled INS hearings had greatly burdened the agency.4 To

charge Georcely with knowledge of his legal obligations may be

unrealistic--he apparently does not read English--but such

knowledge is expected of all, e.g., Atkins v. Parker, 472 U.S. 115,

130 (1985); United States v. Aquino-Chacon, 109 F.3d 936, 938 (4th

Cir.), cert. denied, 522 U.S. 931 (1997), and the obligation as

applied here is less surprising than many others.

Georcely’s counsel told the Board (late in the day and

without evidence) that his client was indigent and could not at the

last minute have come back to St. Thomas. If so, then he was ill-

advised to go to Miami in the first place. Certainly he had no

excuse for waiting until the hearing date had passed to raise such

an excuse. Compare Herbert, 325 F.3d at 70, 72 (exceptional

circumstances where counsel was held in another hearing and

promptly advised the immigration court); Romero-Morales v. INS, 25

F.3d 125, 127, 129 (2d Cir. 1994).

We note also that Georcely did not submit affidavits or

any evidentiary materials to the immigration judge or BIA in

support of his claim that he was financially unable to travel to

the hearing, see, e.g., Ursachi v. INS, 296 F.3d 592, 594 (7th Cir.

4
Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003). Prior
to 1990, the statute required only that the alien show "reasonable
cause" excusing his or her absence. Tang, 354 F.3d at 1194 n.3,
1195 n.4; see also Maldonado-Perez v. INS, 865 F.2d 328, 333 (D.C.
Cir. 1989); Immigration Act of 1990, Pub. L. No. 101-649, § 545,
104 Stat 4978, 5063-65 (codified at 8 U.S.C. § 1252b(c)(3), (f)(2)
(repealed)).

-12-
2002); In re J-P-, 22 I. & N. Dec. 33, 34-35 (BIA 1998). Nor did

he explain how he was able to travel to Florida from the Virgin

Islands but could not afford the return trip, see Hernandez-Vivas

v. INS, 23 F.3d 1557, 1560 (9th Cir. 1994); Maldonado-Perez, 865

F.2d at 333, or why he could not have stayed in the Virgin Islands

in the first place until the motion was granted.

Turning from Georcely’s conduct to that of his counsel,

the BIA has held that ineffective assistance of counsel can under

certain circumstances count as an exceptional circumstance. See In

Re Rivera, 21 I. & N. Dec. 599, 602-03 (BIA 1996). Indeed, in

immigration cases, ineffective assistance is sometimes treated as

a basis for relief without regard to such a statutory hook, even

though such proceedings are civil and the Sixth Amendment guarantee

inapplicable.5

However, if freely indulged, ineffective assistance

claims would undermine the stringent requirements of section

1229a(b)(5)(C) (and much else in the statute besides) so the BIA

has insisted that the alien has to comply with the procedural

requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).

5
This is no easy accomplishment since plenty of other civil
cases have serious consequences, yet the party is still charged
with his lawyer’s errors; but the cases do treat immigration
proceedings differently, using the due process clause as the
justification. See, for example, Jobe v. INS, 238 F.3d 96, 99 n.3
(1st Cir. 2001); Hernandez v. Reno, 238 F.3d 50, 55 (1st Cir.
2001); and Lozada v. INS, 857 F.2d 10, 13-14 (1st Cir. 1988), for
pertinent background.

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These include the filing of a bar complaint against counsel or

adequately explaining why the complaint has not been filed. See

Tang, 354 F.3d at 1196; In Re Rivera, 21 I. & N. Dec. at 603. So

far as we know, neither has occurred in this case.

Although we have hinted that full compliance with

Lozada's requirements might be excused in an appropriate case,

Betouche v. Ashcroft, 357 F.3d 147, 150 (1st Cir. 2004), the Lozada

requirements generally make sense. It is all too easy after the

fact to denounce counsel and achieve a further delay while that

issue is sorted out. And in the absence of a complaint to the bar

authorities, counsel may have all too obvious an incentive to help

his client disparage the quality of the representation.

The present case is a perfect example. A claim of

inadequate representation has not been squarely made either before

the Board or on this appeal. Counsel has sought to make his own

carelessness, if that is the proper characterization, an excuse for

Georcely’s failure to appear, while never conceding that his own

conduct as counsel was ineffective representation--a standard that

requires a showing of significant incompetence and a likely adverse

effect on the ultimate outcome. Strickland v. Washington, 466 U.S.

668, 691-92 (1984).

It is not even clear that counsel was “incompetent,”

although surely more sloppy than he should have been. There was

probably good reason to expect that the mail would arrive more

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quickly, that (given the alleged INS lack of opposition) the motion

would be granted, and that a new hearing date in Miami would be

set. This self-induced expectation does not excuse the

“exceptional circumstances” test for reopening, but counsel’s

failure to check in timely fashion that the motion was received and

granted is a default hardly unknown in law practice.6

In all events, the ineffective assistance claim has not

been squarely raised; no reason for ignoring Lozada has been

suggested; and ineffective assistance and prejudice are far from

apparent on this record. If Georcely wishes to pursue this issue,

he is free to attempt habeas proceedings in the district court.

Several circuits have suggested this remedy is available for such

claims, e.g., Chmakov v. Blackman, 266 F.3d 210, 215 (3d Cir.

2001), but we have no occasion to address the subject here.

Affirmed.

6
The immigration judge’s suggestion that this was a routine
practice by this counsel is a different matter but the immigration
court is aware of the situation and is free to address the problem.

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