
USCA1 Opinion

	




          March 1, 1995         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-
