[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 30, 2006
No. 06-10670 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A95-907-186
JANIO CLAUDIR CAVILHA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 30, 2006)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Janio Claudir Cavilha, a Brazilian national proceeding pro se, petitions for
review of the Board of Immigration Appeals’s (“BIA’s”) decision adopting and
affirming an Immigration Judge’s (“IJ’s”) order denying his motion to reopen
proceedings. After review, we dismiss the petition for review.
I. BACKGROUND
On October 26, 2004, the Department of Homeland Security (“DHS”) served
Cavilha with a notice to appear charging him with removability for remaining in
the United States for longer than permitted, in violation of INA § 237(a)(1)(B), 8
U.S.C. § 1227(a)(1)(B). The notice was served at 100 SV 12 Ave., Deerfield
Beach, Florida. The notice advised Cavilha that he was required to provide the
DHS, in writing, his full mailing address and that notices of hearings would be
mailed to that address. The notice further instructed Cavilha that, if he failed to
attend his scheduled hearing, a removal order could be entered by an IJ in his
absence.
On November 2, 2004, the DHS mailed to Cavilha’s Deerfield Beach
address a notice that his hearing was scheduled for June 22, 2005. This notice also
warned Cavilha that his failure to appear would likely result in a removal order
being entered against him and that he had a responsibility to provide the DHS with
his most recent address if it was different from the one listed on his notice to
appear. On March 5, 2005, the DHS mailed to the same Deerfield Beach address a
notice that Cavilha’s hearing had been rescheduled for June 8, 2005.
Cavilha failed to appear at the June 8, 2005 hearing, and the hearing was
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conducted “in absentia,” pursuant to INA § 240(b)(5)(A), 8 U.S.C.
§ 1229a(b)(5)(A). After the DHS submitted documentary evidence establishing
the factual allegations in the notice to appear, the IJ entered an order of removal.
In the removal order, the IJ noted that Cavilha had received written notification of
the time, date and location of his hearing at his Deerfield Beach address and was
warned of the consequences of failing to attend. The removal order was also sent
to Cavilha’s Deerfield Beach address.
On July 26, 2005, Cavilha filed a motion to reopen proceedings. An
accompanying appearance form filed by Cavilha’s attorney listed Cavilha’s
address as 6766 Willow Lake Circle, Fort Myers, Florida. In his motion, Cavilha
argued that the first attorney he had retained to represent him in the immigration
proceedings failed to inform him of the hearing dates. In an accompanying
affidavit, Cavilha averred that he never received the DHS’s notice about either the
June 22, 2005 hearing or the June 8, 2005 hearing.
The IJ denied Cavilha’s motion to reopen proceedings, finding that notice
had been sent to him at his last known address provided to the DHS. Cavilha
appealed the decision, arguing that his motion should be granted due to lack of
proper notice and ineffective assistance of counsel. The BIA adopted and affirmed
the IJ’s decision and dismissed the appeal. The BIA found that Cavilha had failed
to establish that the Deerfield Beach address was incorrect. The BIA further
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pointed out that the notice to appear sent to that address was not returned as
undeliverable and that Cavilha had never claimed non-receipt of the notice to
appear. As to the ineffective assistance claim, the BIA found that the notice of his
hearing was mailed directly to him, not his attorney, and, in any event, that Cavilha
had failed to meet the requirements for such a claim as set forth in Matter of
Lozada, 19 I&N Dec. 637 (BIA 1988). Cavilha then petitioned this Court for
review.
II. DISCUSSION
On appeal, Cavilha argues that the BIA abused its discretion by denying his
motion to reopen. “The decision to grant or deny a motion to reopen or reconsider
is within the discretion of the Board, subject to the restrictions of this section. The
Board has discretion to deny a motion to reopen even if the party moving has made
out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). A final order of removal
that has been entered in absentia may be rescinded only if: (1) the alien files a
motion to reopen within 180 days of the order’s entry and successfully
demonstrates that the failure to appear was because of exceptional circumstances;
or (2) the alien demonstrates that he or she did not receive the notice to appear in
accordance with 8 U.S.C. § 1229(a)(1) and (2). INA § 240(b)(5)(C), 8 U.S.C. §
1229a(b)(5)(C)(i).
A. Hearing Notice
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Cavilha first argues that his motion to reopen should have been granted
because he did not receive proper notice of the hearing. Pursuant to 8 U.S.C. §
1229(a)(1), a notice to appear “shall be given in person to the alien (or, if personal
service is not practicable, through service by mail to the alien . . . ).” INA §
239(a)(1), 8 U.S.C. § 1229(a)(1). The written notice must contain, among other
things, a statement requiring the alien to provide a home address and telephone
number to the Attorney General, the time and place the proceedings are to be held,
and the consequences of failing to appear absent exceptional circumstances. INA §
239(a)(1)(F)(i)-(iii), 8 U.S.C. § 1229(a)(1)(F)(i)-(iii), (G)(i)-(ii). Pursuant to §
1229(a)(2), if the time or place of the proceedings changes, written notice again
must be served personally, or where not practicable, by mail. INA § 239(a)(2)(A),
8 U.S.C. § 1229(a)(2)(A). In addition, “[s]ervice by mail . . . shall be sufficient if
there is proof of attempted delivery to the last address provided by the alien . . . .”
INA § 239(c), 8 U.S.C. § 1229(c); Dominguez v. United States Att’y Gen., 284
F.3d 1258, 1259-60 (11 th Cir. 2002).
If the alien fails to appear as directed, the alien “shall be ordered removed in
absentia” if the government “establishes by clear, unequivocal, and convincing
evidence that the written notice was so provided and that the alien is removable.”
INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). The written notice is sufficient if
it was provided at the most recent address given by the alien. Id.; see also United
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States v. Zelaya, 293 F.3d 1294, 1298 (11 th Cir. 2002); Dominguez, 284 F.3d at
1260. However, if the alien failed to provide the required address, no written
notice is required. INA § 240(b)(5)(B), 8 U.S.C. § 1229a(b)(5)(B).
The BIA did not abuse its discretion in denying Cavilha’s motion to reopen.1
Cavilha does not dispute that he received his notice to appear at his Deerfield
Beach address. Furthermore, there is no evidence that Cavilha ever notified the
DHS of his change of address. The Attorney General mailed written notice of the
new June 8 hearing date to his Deerfield Beech address, Cavilha’s last known
address.2 Therefore, the government provided sufficient notice under 8 U.S.C. §
1229a(b)(5) and § 1229(c).
B. Exceptional Circumstances
Cavilha also argues that he has shown exceptional circumstances for his
failure to appear because his attorney was constitutionally ineffective when she
failed to advise him of the new June 8 hearing date. Under the Due Process Clause
of the Fifth Amendment, “[a]liens enjoy the right to the effective assistance of
1
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. United
States Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006). This review is “limited to determining
whether there has been an exercise of administrative discretion and whether the matter of
exercise has been arbitrary or capricious.” Id. (quotation marks omitted).
2
No EOIR form indicating representation by an attorney appears in the record until
Cavilha’s motion to reopen was filed. Thus, while Cavilha may have retained a prior attorney to
represent him, DHS was not aware of that representation when the hearing notice was sent to the
only address they had on file.
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counsel in deportation proceedings.” Mejia Rodriguez v. Reno, 178 F.3d 1139,
1146 (11 th Cir. 1999). However, when filing a motion to reopen based on a claim
of ineffective assistance of counsel, the BIA requires the alien (1) to submit an
affidavit attesting to the relevant facts; (2) to inform former counsel of the
allegations and allow an opportunity to respond; and (3) if asserting that the prior
counsel’s handling of the case violated ethical or legal responsibilities, to state
whether a complaint has been filed with the appropriate disciplinary authorities,
and, if not, why not. See Lozada, 19 I&N Dec. at 639. The BIA does not abuse its
discretion by requiring aliens to substantially comply with these procedural
requirements. Gbaya v. United States Att’y Gen., 342 F.3d 1219, 1221-23 (11 th
Cir. 2003).
Here, Cavilha failed to substantially comply with the BIA’s procedural
requirements. Cavilha has not provided his former counsel with notice of his
allegations and an opportunity to respond. Nor has Cavilha filed a complaint
against the attorney with the appropriate disciplinary authorities. Thus, the BIA
did not abuse its discretion in denying Cavilha’s motion to reopen based upon
alleged ineffective assistance of counsel.
Even if Cavilha had complied with the BIA’s procedural requirements, his
attorney’s alleged ineffective assistance would not have provided a basis to reopen
his proceedings. Cavilha does not contest the validity of the basis for his removal
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order, that is, that he overstayed his temporary visitor visa. Instead, he argues only
that, had his attorney notified him of the hearing, he could have filed for
discretionary relief in the form of an adjustment of status because he has an offer
of employment with a U.S. employer. However, “the failure to receive relief that
is purely discretionary in nature does not amount to a deprivation of a liberty
interest.” Mejia-Rodriguez, 178 F.3d at 1146. Accordingly, Cavilha’s due process
rights could not have been violated.
For all these reasons, the BIA did not abuse its discretion in denying
Cavilha’s motion to reopen.
PETITION DENIED.
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