Grigous v. Gonzales

United States Court of Appeals
For the First Circuit

No. 05-2105

VLADIMIR GRIGOUS,

Petitioner,

v.

ALBERTO GONZALES, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

Selya, Lipez, and Howard,
Circuit Judges.

Susan V.H. Degrave on brief for petitioner.
Karen L. Goodwin, Assistant United States Attorney, and
Michael J. Sullivan, United States Attorney, on brief for
respondent.

August 24, 2006
 LIPEZ, Circuit Judge. Vladimir Grigous seeks review of

the order of the Board of Immigration Appeals ("BIA") denying his

motion to reopen his removal proceedings. After Grigous missed a

rescheduled hearing on his removability and asylum claim, the

Immigration Judge ("IJ") ordered him removed in absentia. The

petitioner then filed a motion to reopen removal proceedings,

explaining that his attorney had a scheduling conflict. Noting

that the petitioner had not given any explanation for his own

failure to appear before the court and that his attorney's failure

to notify the immigration court of the attorney's inability to

appear was inexcusable, the IJ denied his motion. Grigous appealed

to the BIA, claiming that the government had failed to provide him

with notice of his hearing date in violation of 8 U.S.C. § 1229a

and that he had not been advised in his native language of the

consequences of not appearing at his hearing pursuant to In re M-S,

22 I. & N. Dec 349 (BIA 1998) (en banc). The BIA summarily

affirmed the IJ's denial of Grigous's motion to reopen. We deny

Grigous's petition for review.

I.

Grigous, a citizen of Ukraine, entered the United States

on or about September 3, 1990, as a nonimmigrant visitor for

pleasure with authorization to remain in the United States until

March 2, 1991. He remained in the United States past that date and

applied for asylum on February 12, 1993. On June 26, 1997, the

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government served him with a Notice to Appear, charging him with

inadmissibility as a nonimmigrant visitor who remained in the

United States longer than permitted, pursuant to § 237(a)(1)(B) of

the Immigration and Nationality Act ("INA"), 8 U.S.C.

§ 1227(a)(1)(B). We describe the proceedings before the IJ, BIA,

and the district court below.

A. The IJ and BIA decisions

A hearing with the IJ was scheduled for February 11,

1998. Grigous missed the hearing, and the IJ ordered him removed

in absentia. On February 21, 1998, an attorney, Michael G. Moore,

entered an appearance for Grigous and moved to reopen on the ground

that Grigous had been too ill to attend the February 11, 1998,

hearing. The IJ granted the motion to reopen and continued the

hearing until May 17, 1998. For reasons that are not clear from

the record, that hearing was rescheduled to August 5, 1998. Moore

then requested another continuance to accommodate his vacation

schedule, and the hearing was rescheduled to August 26, 1998. A

notice of that August 26, 1998 hearing date was mailed to Moore.

Neither Grigous nor Moore appeared at the August 26, 1998

hearing, and the IJ again ordered Grigous removed in absentia. On

September 6, 1998, Grigous, through Moore, filed a second motion to

reopen the proceedings, explaining that Moore was in immigration

court in Hartford, Connecticut, on August 26, 1998, and thus was

unable to attend the hearing. The motion to reopen also noted that

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the IJ had ordered removal to the United Kingdom, rather than

Ukraine.

On September 29, 1998, the IJ denied Grigous's motion to

reopen. The IJ found that Grigous had failed to explain Grigous's

failure to appear for the hearing on August 26, 1998, concluding

that "[t]o the extent that counsel's excuse for his non appearance

is justifiable, it does not relieve the respondent of his

obligation to appear." The IJ also noted that "the fact that

counsel for the respondent did not notify the Boston Immigration

Court of the conflict is inexcusable for he was duly notified of

the hearing date and had sufficient time to protect the interest of

both his clients by requesting permission not to appear from either

Court." For these reasons, the IJ denied the motion. However, the

IJ issued an amended removal order correcting the country of

removal to Ukraine.

Grigous appealed to the BIA, arguing that he had not

received notice of the hearing and that he was never warned of the

consequences of his failure to appear in his native language. The

BIA summarily affirmed the IJ's decision on May 12, 2002.

B. Grigous's habeas petition

On August 19, 2002, the petitioner filed a petition for

habeas corpus in federal district court in Connecticut, again

challenging his in absentia removal order for lack of notice and

appropriate warnings. On March 28, 2003, the district court stayed

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the petitioner's deportation until further notice. Because the

petitioner was still represented by Moore, the attorney who had

received notice but did not appear at Grigous's hearing, the

government petitioned the court for a conflict hearing to ascertain

whether the petitioner wanted to continue to be represented by

Moore and whether he wished to waive any ineffective assistance of

counsel claim against Moore. The district court scheduled a

conflict hearing, but continued it because Grigous lacked an

interpreter. Moore then filed a motion for a change of venue,

explaining that Grigous had moved to Massachusetts.

Before the rescheduled conflict hearing took place and

before the court ruled on the venue motion, the government filed a

motion for a stay of proceedings, informing the court that Moore

had been disbarred from the Massachusetts bar on August 8, 2003,

for lying on his bar application. The government also noted that

Moore had previously been a member of the Connecticut bar, but he

had resigned in conjunction with grievance and criminal proceedings

in 1971. Although Moore had retained his admission to practice in

the federal district court in Connecticut, civil proceedings were

about to commence on that admission as well. Because Moore was no

longer licensed to practice law in any jurisdiction, the government

sought to stay proceedings until Moore either withdrew from the

case or until the civil proceedings on his authorization to

practice in the district court had concluded. The government did

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not object to continuing the stay of deportation until the issue

was resolved.

On October 2, 2003, the district court granted the motion

for the stay of proceedings and continued the stay of deportation.

On October 14, 2003, a new attorney, Robert Lucheme, appeared on

behalf of Grigous, claiming to replace Moore. Lucheme filed a

"motion for decision," explaining that "there is no claim for

ineffective assistance of counsel" and that any such claim would be

procedurally barred in any event. The motion stated that the only

issue in this case was whether Grigous had received the proper

notice of his missed hearing. The government opposed the motion,

arguing that "[t]o the contrary, the record, as it stands now,

could be subject to a claim of ineffective assistance of counsel"

and that, based on the facts of this case, such a claim might not

be procedurally barred. The government also expressed concern that

Grigous's new attorney may be working with Moore, that Moore had

not formally withdrawn from the case, and that on the eve of the

last hearing, Moore had offered the government a signed stipulation

dismissing Grigous's habeas petition with prejudice, an offer that

the government "did not feel comfortable" accepting. Lucheme

responded with a motion for sanctions, claiming that the government

was improperly attempting to discredit him in the proceedings. On

January 16, 2004, Moore filed a motion to withdraw as counsel.

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 On January 29, 2004, the district court granted the

petitioner's motion for a change of venue to the federal district

court in Massachusetts. Because of the change in venue, the court

denied as moot Lucheme's motions for a decision and sanctions and

Moore's motion to withdraw.

Grigous obtained a new attorney for his proceedings in

Massachusetts. However, before any decision was reached by the

district court in Massachusetts, the government moved to transfer

the case to the court of appeals pursuant to section 106(c) of the

REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 231,

which Congress had recently enacted.1 The district court granted

the motion and transferred the case to us. Pursuant to section

1
REAL ID Act § 106(c) states:

If an alien's case, brought under [habeas],
and challenging a final administrative order
of removal, deportation, or exclusion, is
pending in a district court on the date of the
enactment of this division, then the district
court shall transfer the case (or the part of
the case that challenges the order of removal,
deportation, or exclusion) to the court of
appeals for the circuit in which a petition
for review could have been properly filed
under section 242(b)(2) of the Immigration and
Nationality Act (8 U.S.C. 1252), as amended by
this section, or under section 309(c)(4)(D) of
the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1101
note). The court of appeals shall treat the
transferred case as if it had been filed
pursuant to a petition for review under such
section 242, except that subsection (b)(1) of
such section shall not apply.

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106(c) of the REAL ID Act, we treat the transferred habeas petition

as a petition for review under 8 U.S.C. § 1252(b)(2).

II.

We review the BIA's denial of the petitioner's motion to

reopen for abuse of discretion. See Zhang v. INS, 348 F.3d 289,

292 (1st Cir. 2003). Abuse of discretion exists "where the BIA

misinterprets the law, or acts either arbitrarily or capriciously."

Maindrond v. Ashcroft, 385 F.3d 98, 100 (1st Cir. 2004) (internal

quotation marks and citation omitted). "Where, as here, the BIA

summarily affirms an IJ's [decision], we review directly the IJ's

decision as if it were the decision of the BIA." Olujoke v.

Gonzales, 411 F.3d 16, 21 (1st Cir. 2005).

The IJ in this case treated Grigous's motion to reopen as

a request to rescind the in absentia removal order. Under the INA,

"[a]ny alien who, after written notice . . . has been provided to

the alien or the alien's counsel of record, does not attend a

proceeding under this section, shall be ordered removed in absentia

if the Service establishes by clear, unequivocal, and convincing

evidence that the written notice was so provided and that the alien

is removable . . . ." 8 U.S.C. § 1229a(b)(5)(A). An in absentia

removal order 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" or "filed at any time if the alien demonstrates that

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the alien did not receive notice." 8 U.S.C. § 1229a(b)(5)(C).

These procedures differ from the procedures that apply to motions

to reopen before the IJ or BIA in general. Cf. 8 C.F.R.

§§ 1003.2(c), 1003.23(b). Concluding that the government had

provided notice of the hearing to Grigous through his attorney and

that Grigous offered no explanation for his failure to appear, the

IJ rejected the motion to reopen to rescind the in absentia order.

In his petition for review, Grigous argues that he seeks

a motion to reopen his proceedings to apply for asylum under the

general motion to reopen procedures set forth in 8 C.F.R.

§ 1003.23(b), not a motion to reopen to rescind his in absentia

removal order under 8 U.S.C. § 1229(b)(5)(C). See Wu v. INS, 436

F.3d 157, 163 (2d Cir. 2006) (explaining that, under certain

circumstances, a petitioner who has been ordered removed in

absentia may seek reopening to apply for discretionary relief under

the general reopening regulations without seeking rescission of the

in absentia removal order under 8 U.S.C. § 1229a(b)(5)(C)).

Grigous does not raise his previous argument that the in abstentia

order should be rescinded because the government failed to provide

him with notice of the date of the hearing.2 Nor does he argue, in

2
In any event, there was no merit to Grigous's claim that the
government failed to provide him with proper notice of the hearing
under the INA. All of the applicable provisions of the INA
explicitly state that the government must provide notice to the
petitioner or his or her counsel of record, if any. See 8 U.S.C.
§§ 1229a(b)(5)(A), 1229(a)(1), 1229(a)(2)(A). The record
demonstrates that the government sent a Notice of Hearing form to

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this petition, that his failure to appear was due to extraordinary

circumstances, such as ineffective assistance by his former

counsel.3 Instead, Grigous argues only that his motion to reopen

to apply for asylum should have been granted because "the failure

to inform petitioner of the consequences of [his] failure to appear

for subsequent hearings in a language that he could understand

violated due process protections and the BIA's past precedent."

Thus, we focus on this argument. We begin by addressing the

government's argument that Grigous lacks a factual basis for his

claim, and then turn to the merits of Grigous's argument.

A. Evidentiary basis for Grigous's claim

We note at the outset the government's contention that

Grigous lacks a factual basis for his argument that the government

failed to provide him oral warnings, in a language he could

understand, of the consequences of failing to appear at his

hearing. The written Notice to Appear, which Grigous signed,

states that Grigous received oral notice in English of the

consequences of failing to appear at his hearing before the IJ.

Grigous's attorney, and Grigous does not claim that his attorney
did not receive it. Thus, the government met its obligation to
provide notice of the hearing date under the INA.
3
See Borges v. Gonzales, 402 F.3d 398, 408 (3d Cir. 2005) (noting
that "ineffective assistance of counsel may support a motion to
reopen [an in absentia removal order] based on exceptional
circumstances"); Asaba v. Ashcroft, 377 F.3d 9, 11 n.4 (1st Cir.
2004) (noting that "[t]he BIA has found that ineffective assistance
of counsel may qualify as an exceptional circumstance" for the
purposes of rescinding an in absentia removal order).

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Grigous contends in his brief that he does not understand English,

but he failed to offer evidence below in support of this assertion.

For example, Grigous's affidavit in support of his motion to reopen

says nothing regarding his English proficiency and makes no

assertion that he was not given the proper oral warnings.

To make up for this absence of evidence, Grigous's

attorney notes that the district court granted a continuance in

Grigous's conflict hearing in order to secure an interpreter.

Although this fact may provide some support for Grigous's claim, it

does not, in and of itself, demonstrate that he does not understand

English. Moreover, as we explain below, even assuming that Grigous

does not understand English and was not given oral warnings in his

native language of the consequences of his failure to appear at his

hearing, he nonetheless fails to establish that the BIA abused its

discretion in denying his motion to reopen to apply for asylum.

B. Requirements for filing a motion to reopen to apply for relief
following an in absentia removal order

Grigous relies heavily on In re M-S-, 22 I. & N. Dec. 349

(BIA 1998) (en banc), for the proposition that the BIA should have

granted his motion to reopen due to the lack of appropriate oral

warnings. In that case, the BIA explained that a petitioner may

seek reopening to apply for certain forms of previously unavailable

discretionary relief, without meeting the requirements for

rescinding an in absentia removal order, where the government

failed to give oral warnings of the consequences of failing to

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appear in a language that the petitioner understands. See In re M-

S-, 22 I. & N. Dec. at 352-57; see also Wu, 436 F.3d at 163

(discussing the BIA's decision in In re M-S-). As we explain in

further detail below, however, the question of whether oral

warnings were given prior to an in absentia removal order is

important under the INA only in narrow circumstances.

The petitioner in In re M-S- sought to reopen her

proceedings to file for adjustment of status, discretionary relief

that was not available to her at the time of her hearing when she

was ordered deported in absentia. See id. at 356-57. She did not

seek to challenge her removability through a motion for reopening

to rescind the in absentia order, and instead filed a motion to

reopen under the regulations permitting reopening in cases

generally. However, the INA explicitly bars petitioners with in

absentia removal orders from reopening their cases to apply for

certain forms of discretionary relief within 10 years from the date

of the final order of removal:

Any alien against whom a final order of
removal is entered in absentia under this
subsection and who . . . was provided oral
notice, either in the alien's native language
or in another language the alien understands,
of the time and place of the proceedings and
of the consequences . . . of failing, other
than because of exceptional circumstances . .
. to attend a proceeding under this section,
shall not be eligible for relief under [8
U.S.C. §§ 1229b, 1229c, 1255, 1258, or 1259]
for a period of 10 years after the date of the
entry of the final order of removal.

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8 U.S.C. § 1229a(7).4 The BIA noted that adjustment of status was

one of the forms of discretionary relief specifically mentioned in

this provision and thus, if the petitioner was provided with the

proper oral notice, she would not be eligible for adjustment of

status. See In re M-S-, 22 I. & N. Dec. at 355. However, because

the petitioner was not provided with appropriate oral warnings, the

BIA reasoned that this failure meant that the petitioner was not

ineligible for adjustment of status under the INA:

[S]ection [1229a(b)(7)] specifies that if an
alien fails to appear at a deportation hearing
after receiving oral notice, in a language the
alien understands, of the consequences of
failing to appear, the alien is ineligible
. . . for the forms of relief from deportation
listed in [§ 1229a(b)(7)]. Conversely, if the
oral warnings are not provided, relief is not
precluded. To rule otherwise would render
surplusage the requirement of [8 U.S.C.
§ 1229a(b)(7)] that the oral warnings be given
before the consequences ensue.

Id. Because relief was not precluded, the BIA could consider

whether the petitioner had established a prima facie case for

adjustment of status, warranting reopening under the applicable

regulations. Id.

Grigous relies solely on this case and the language of 8

U.S.C. § 1229a(b)(7) to support his argument that he is entitled to

reopening due to the government's alleged failure to provide him

4
At the time of the IJ's decision in In re M-S-, the predecessor
statute to 8 U.S.C. § 1229a(7) applied, barring relief for a period
of 5 years. See 8 U.S.C. § 1252b(c)(3)(1994) (repealed 1996).

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with oral warnings, in his native language, of the consequences of

his failure to appear. However, In re M-S- and the statute do not

help him. First, asylum is not one of the forms of relief listed

in 8 U.S.C. § 1229a(b)(7), and thus Grigous's eligibility for

asylum is unaffected by this provision. In other words, Grigous

can apply for reopening under the regulations governing motions to

reopen in general, and the IJ or the BIA can exercise discretion to

grant or deny his motion, without regard to any bar in 8 U.S.C.

§ 1229a(b)(7). Second, even if 8 U.S.C. § 1229a(b)(7) applied and

the government was required to provide oral warnings in Grigous's

language pursuant to that provision, the government's failure to do

so would not mean that Grigous is automatically entitled to

reopening. It only means that "relief is not precluded" under 8

U.S.C. § 1229a(b)(7) and that he must still meet the requirements

for motions to reopen under the general regulations. In re M-S-,

22 I. & N. at 355. Thus, in any event, Grigous's motion to reopen

could have been denied if it failed to meet the requirements of the

applicable regulation governing his motion to reopen.

Grigous's motion does not meet the requirements of the

applicable regulation. See 8 C.F.R. § 1003.23 (setting the general

standards for granting motions to reopen before the IJ). Grigous,

unlike the petitioner in In re M-S-, is not seeking previously

unavailable relief. He applied for asylum in 1993 and it is this

application for which he seeks an adjudication. Typically, a

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motion to reopen to apply for relief may only be granted if the

petitioner offers evidence that is "material and was not available

and could not have been discovered or presented at the former

hearing." 8 C.F.R. § 1003.23(b)(3); see also 8 C.F.R. § 1003.2(c).

Grigous fails to address these requirements or even discuss the

merits of his asylum claim in his petition for review. Thus, his

case differs from In re M-S- and other cases where the petitioner

was able to show a basis for reopening to apply for discretionary

relief. See In re M-S-, 22 I. & N. Dec. at 357 (finding that the

petitioner "has met the general motions requirements and has

provided sufficient evidence to indicate a reasonable likelihood

that her application [for adjustment of status] may succeed on the

merits"); Wu, 436 F.3d at 164 (remanding where the BIA failed to

consider the petitioner's argument that he was entitled to

reopening to apply for asylum based on a change of law arising

after his in absentia removal order). Thus, the BIA did not abuse

its discretion, under the INA and its regulations, in affirming the

IJ's denial of Grigous's motion to reopen.

C. Due process

Finally, we note that insofar as Grigous argues that the

right to receive oral warning in his native language arises from

the due process right to adequate notice, as opposed to any

statutory requirement in 8 U.S.C. § 1229a(b)(7), that contention

suffers from at least three serious flaws.

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 First, Grigous has utterly failed to develop that

argument in his briefs. See United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed

waived."). Second, as we have previously discussed, he has not

established a factual basis for this argument. Third, even

assuming that his argument is not waived and has an adequate

factual basis, Grigous has failed to demonstrate any prejudice as

a result of the lack of appropriate oral warnings. See Lattab v.

Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004) ("[B]efore a petitioner in

an immigration case may advance a procedural due process claim, he

must allege some cognizable prejudice fairly attributable to the

challenged process."). This was not the first time that Grigous

had been ordered deported in absentia. He was able to get his

first in absentia deportation order rescinded through a motion to

reopen, providing a letter from his doctor explaining that he had

been too ill to attend that hearing. Under these circumstances,

Grigous is hard pressed to explain why the alleged failure of the

government to provide him with oral warnings in his native language

of the consequences of his failure to appear prejudiced him with

respect to missing this subsequent hearing. Furthermore, as we

have noted, Grigous has not even addressed the merits of his asylum

claim and whether there is a likelihood that he would have been

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granted relief. Having failed to establish prejudice, Grigous may

not advance this due process claim here.5

III.

The petition for review of the BIA's affirmance of the

IJ's denial of Grigous's motion to reopen his proceedings is

denied.

So ordered.

5
Although we do not reach the question of whether, regardless of
the applicability of 8 U.S.C. § 1229a(b)(7), due process requires
the provision of oral warnings in a language that the petitioner
understands, it is clearly the better practice for the IJ to
provide these warnings to ensure that petitioners with limited
English proficiency -- some of whom may lack representation or
adequate representation -- are aware of the consequences of their
failure to attend future hearings.

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