NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0313n.06
Filed: May 7, 2007
No. 06-3109
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SALAM MOHAMMAD ABED AL-UJAIMY, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) OF A DECISION OF THE
) BOARD OF IMMIGRATION
ALBERTO R. GONZALES, Attorney General ) APPEALS
)
Respondent. ) MEMORANDUM
OPINION
BEFORE: NORRIS, GILMAN, and McKEAGUE, Circuit Judges.
PER CURIAM. Petitioner Salam Mohammad Abed Al-Ujaimy, an Iraqi citizen, appeals
from an order of the Board of Immigration Appeals (“BIA”), that affirmed an Immigration Judge’s
decision denying his motion to reopen removal proceedings. For the following reasons, we affirm.
In December 2000, Petitioner entered the United States without a valid visa or passport.
After being released from the Immigration and Naturalization Service’s custody, he began residing
in Southfield, Michigan. In February 2001, removal proceedings were instituted against him, and
he retained attorney David Koelsch to represent him. At his removal hearing in February 2002, he
sought asylum, withholding of removal, and protection under the Convention Against Torture,
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Al-Ujaimy v. Gonzales 06-3109
claiming that he feared persecution for deserting the Iraqi army. The Immigration Judge concluded
that Petitioner was not a credible witness and denied his application for relief. Petitioner appealed.
In May 2003, the BIA reversed the adverse credibility determination and remanded for further
proceedings. On June 3, 2003, the Immigration Court sent notice of Petitioner’s new hearing date
to Koelsch. Petitioner, however, did not appear at the November 25, 2003 hearing, and the
Immigration Judge ordered him removed in abstentia. After he failed to appear, Koelsch sent
Petitioner a letter dated November 25, 2003, outlining the steps that Koelsch had taken to contact
Petitioner by both phone and mail prior to the November hearing date. Petitioner contends that he
did not learn of the removal order until 2004 when the Department of Homeland Security denied his
application for employment authorization. Thereafter, on November 4, 2005, Petitioner retained new
counsel and filed a motion to reopen the removal proceedings, arguing that he never received notice
of the November 2003 hearing.
The Immigration Judge determined that Petitioner received sufficient notice because his
attorney was informed of the hearing. Petitioner was responsible for keeping his attorney apprised
of his current and correct mailing address. Petitioner, however, used various addresses in both
Michigan and Arizona during the relevant period of time. The Immigration Judge also concluded
that Petitioner could not reopen the proceedings by claiming that he had received ineffective
assistance of counsel because he could not show the factual prerequisites set out in Matter of Lozada,
19 I. & N. Dec. 637, 639 (BIA 1988), had been met. In October 2005, the BIA affirmed and adopted
the Immigration Judge’s decision, stating that service on Petitioner’s “counsel of record constituted
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notice” and his “failure to notify his attorney of his current address does not amount to exceptional
circumstances for his failure to appear.”
This court reviews the BIA’s order denying Petitioner’s motion to reopen removal
proceedings for an abuse of discretion. INS v. Doherty, 502 U.S. 314, 323-24 (1992). An alien may
move to reopen at any time if he did not receive notice of his removal hearing. However, notice
mailed to the alien’s counsel of record is sufficient. 8 U.S.C. § 1229(a); see Scorteanu v. INS, 339
F.3d 407, 412 (6th Cir. 2003). Here, notice of the November 2003 hearing was sent to Koelsch,
which was statutorily sufficient notice.
Alternatively, Petitioner argues that Koelsch provided ineffective assistance by failing to
notify him of the November 2003 hearing and that amounted to an exceptional circumstance for
reopening pursuant to 8 U.S.C. § 1229a(b)(5)(C). An in absentia order of removal may be rescinded
if the alien can show that the motion to reopen was filed within 180 days of the order of removal and
that his failure to appear was caused by exceptional circumstances. 8 U.S.C. § 1229a(b)(5)(C).
Even if we were to assume that the 180-day time limit could be equitably tolled, Petitioner cannot
meet his burden for establishing an ineffective assistance of counsel claim. To do so, Petitioner must
satisfy the conditions set forth in Lozada, as well as show that he was prejudiced by counsel’s
failings. Sako v. Gonzales, 434 F.3d 857, 863 (6th Cir. 2006). According to Lozada, Petitioner must
show the following: (1) the motion to reopen is supported by “an affidavit detailing counsel’s
failings”; (2) counsel was informed of the failings; and (3) the motion shows “that disciplinary
charges have been filed with the appropriate authority.” Id. (citing Lozada, supra). Petitioner has
not provided an affidavit in support of his motion. While a document entitled “Bar Complaint-
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Attorney David Koelsch” is included in the record, there is no evidence that this document was ever
filed with the Michigan State Bar or that a copy of it was sent to Koelsch. Consequently, Petitioner
failed to establish the factual predicate for bringing a motion to reopen on the basis of ineffective
assistance of counsel. That being the case, we need not reach the question of whether Petitioner has
demonstrated prejudice based upon the actions or inactions of counsel.
The order of the Board of Immigration Appeals is affirmed.
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