       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206             2       Scorteanu v. INS                                    No. 01-4271
    ELECTRONIC CITATION: 2003 FED App. 0277P (6th Cir.)
                File Name: 03a0277p.06                     Michigan, for Petitioner. James A. Hunolt, Emily A.
                                                           Radford, UNITED STATES DEPARTMENT OF JUSTICE,
                                                           OFFICE OF IMMIGRATION LITIGATION, Washington,
UNITED STATES COURT OF APPEALS                             D.C., for Respondent.
              FOR THE SIXTH CIRCUIT                                                _________________
                _________________
                                                                                       OPINION
 CORNEL VIOREL SCORTEANU, X                                                        _________________
                  Petitioner, -                               KRUPANSKY, Circuit Judge. This appeal arises from a
                                -
                                -  No. 01-4271             decision by the Board of Immigration Appeals (“BIA” or
          v.                    -                          “Board”) to dismiss a motion by petitioner, Cornel Viorel
                                 >                         Scorteanu (“Scorteanu”), to reopen deportation proceedings
                                ,                          pursuant to section 242B(c)(3) of the Immigration and
 IMMIGRATION AND                -
 NATURALIZATION SERVICE,                                   Nationality Act (“INA” or “Act”), 8 U.S.C. § 1252b(c)(3),
                                -                          alleging ineffective assistance of counsel.1 For the reasons
                 Respondent. -                             discussed below, the Board’s order of dismissal is affirmed.
                                -
                               N                           I. BACKGROUND
   On Appeal from the Board of Immigration Appeals.
                  No. A72 171 730.                           Petitioner Scorteanu is a 31-year-old native and citizen of
                                                           Romania, of Hungarian ethnicity, who entered the United
                  Argued: May 6, 2003                      States at Chicago, Illinois on June 20, 1994 as a B-2 visitor
                                                           for pleasure. His visa authorized him to remain in the United
          Decided and Filed: August 7, 2003                States until December 19, 1994. On September 15, 1994,
                                                           petitioner applied for asylum. The Chicago Asylum Office
  Before: KRUPANSKY, SILER, and GILMAN, Circuit            referred his application to an Immigration Judge (“IJ”).
                   Judges.                                 Petitioner was served with an Order to Show Cause (“OSC”),

                  _________________
                                                               1
                                                                  The amendments made by the Illegal Immigration Reform and
                       COUNSEL                             Immigrant Responsibility Act of 1996, Division C of Pub.L.No. 104-208,
                                                           110 Stat. 3009-546 (“IIRIRA”), are not applicable to the instant case. As
ARGUED: Michael E. Piston, Troy, Michigan, for             such, references herein are made to the Immigration and Nationality Act
                                                           as it existed prior to the enactment of the IIRIRA. The IIRIRA repealed
Petitioner.     Hillel R. Smith, UNITED STATES             the section under consideration in this case, but provided transitional rules
D E P A R T M E N T O F JU S T IC E , OFFICE OF            that apply to cases, such as the instant case, where the deportation
IMMIGRATION LITIGATION, Washington, D.C., for              proceedings commenced prior to April 1, 1996. The transitional rules
Respondent. ON BRIEF: Michael E. Piston, Sufen Li, Troy,   provided that the INA app lies as codified prior to the passage of the
                                                           IIRIRA. See IIRIRA §§ 306 (c)(1), 309(a).

                            1
No. 01-4271                           Scorteanu v. INS      3    4       Scorteanu v. INS                                 No. 01-4271

dated September 6, 1995, charging deportability as an              Scorteanu then turned to attorney Mosabi Hamed.
overstay under Section 241 (A)(1)(c)(i) of the INA. During       Previously, after his 1996 marriage to a United States citizen,
the pendency of his merits hearing, petitioner married a         petitioner had retained Hamed to handle his I-130 Immigrant
United States citizen.                                           Petition for Alien Relative. Throughout 1999, Scorteanu kept
                                                                 in contact with Hamed regarding his asylum petition even
   Petitioner retained Attorney Ronald A. Muresan                though Hamed was not petitioner’s attorney of record for
(“Muresan”) to represent him in his asylum case. On              those proceedings. Hamed continued to advise Scorteanu that
April 11, 1996, Scorteanu appeared with Muresan before an        he had inquired into petitioner’s asylum case and assured him
IJ for a Master Calendar hearing where petitioner renewed his    that it was still pending.2
asylum application and the IJ scheduled an Individual Merits
Hearing for November 19, 1996. On November 8, 1996,                On January 18, 2000, Scorteanu retained new counsel. As
Muresan informed petitioner by telephone that the                a result of his new counsel’s inquiry with the Immigration
immigration court had rescheduled the merits hearing and         and Naturalization Service (“INS”), petitioner learned of the
would send Muresan a written notice of a new date. Attorney      in absentia Order of Deportation of March 26, 1997 in late
Muresan received a letter, dated November 8, 1996, by            March of 2000.3 Nevertheless, Scorteanu waited until
certified mail from the immigration court, advising that         February 12, 2001 to file a Motion to Reopen Deportation
Scorteanu’s deportation hearing was rescheduled for              Proceedings with the immigration court. For that proceeding
March 26, 1997. Muresan never advised petitioner of the new      Scorteanu submitted his own affidavit and an affidavit from
hearing date, nor did he file the requested notice of            former attorney Muresan detailing his ineffective assistance
petitioner’s change of address with the immigration court. In    of counsel.
the months that followed, Scorteanu contacted Muresan
several times regarding notice of a new hearing date and, each     In denying Scorteanu’s Motion to Reopen, the IJ
time, Muresan informed petitioner that he would notify           determined in her March 15, 2001 Order that petitioner had
petitioner when he received the new hearing date.                exceeded the statutory time limit of 180 days for filing a
                                                                 motion to reopen based on exceptional circumstances
  Unbeknownst to Scorteanu, during this period, Muresan          pursuant to INA § 242B(c)(3)(A). See Matter of A-A-, Int.
was suspended and eventually disbarred from the practice of
law. Muresan did not advise petitioner of this development
                                                                     2
nor inform the immigration court of his suspension. As a               In early 1996, Scorteanu had married Doina Zieminska and retained
consequence of Muresan’s representation, petitioner did not      attorney Mosabi Hamed to file an I-130 Immigrant Petition for Alien
receive a copy of the hearing notice and neither Scorteanu nor   Relative. At no time did Hamed enter an appearance on b ehalf of the
                                                                 petitioner in the instant deportation proceedings. While Scorteanu has
Muresan attended the March 26, 1997 merits hearing where,        averred that he informed Hamed of his pending asylum application and
consequently, petitioner was ordered deported in absentia to     that Hamed had agreed to inquire into the status of petitioner’s asylum
Romania. During 1997 and 1998 Muresan fraudulently               case, any statem ents ma de by Hamed with respect to the pendency of the
advised Scorteanu that his asylum case was still pending         deportation proceedings are irrelevant to the petitioner’s claims of
before the immigration court. In early 1999, Scorteanu           exceptional circumstances and lack of notice where Hamed was not
learned from members of the Romanian community in                petitioner’s counsel of record.
Michigan that Muresan had been disbarred.                            3
                                                                       The BIA accepted this time fram e in its November 9, 2001 dismissal
                                                                 of petitioner’s ap peal.
No. 01-4271                            Scorteanu v. INS       5    6      Scorteanu v. INS                            No. 01-4271

Dec. 3357 (BIA 1998). The IJ further observed that attorney        absentia order of deportation under limited circumstances.
Muresan’s acknowledged receipt of notice for the March 26,         See Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996). An
1997 deportation hearing met the statutory requirements of         in absentia order of deportation may be rescinded upon a
the act. See INA § 242B(a)(2). Finally, the court addressed,       motion to reopen filed at any time if the alien demonstrates
sua sponte, the effect of Muresan’s fraud, noting: “Even           that he or she did not receive notice in accordance with the
assuming arguendo that the petitioner had some basis to            requirements in section 242B(a)(2) of the Act. 8 U.S.C.
assert a claim for tolling of the 180 days, more than that         § 1252B(c)(3)(B) (1994). Alternatively, an in absentia order
period elapsed between actual notice of the entry of the           may be rescinded upon a motion to reopen filed within 180
Court’s order and the filing of the instant motion.”               days of the date of the deportation order “if the alien
                                                                   demonstrates that the failure to appear was because of
   Scorteanu petitioned for review of the IJ’s denial before the   exceptional circumstances as defined in subsection (f)(2) of
BIA on April 13, 2001. The BIA returned a dismissal of             this section.” § 242B(c)(3)(A). Thus, in seeking recision of
petitioner’s appeal on November 9, 2001. The Board noted           an in absentia deportation order, the burden rests on the
that petitioner’s motion was filed well beyond the 180 day         movant to demonstrate either improper notice or exceptional
statutory time limit pursuant to § 242B(c)(3)(A) of the Act.       circumstances. See Giday v. INS, 113 F.3d 230, 233 (D.C.
The Board also addressed the IJ’s sua sponte consideration of      Cir. 1997).
the possibility of equitable tolling of the 180 day time limit,
observing that such equitable relief was unavailable when a           Scorteanu has, first, averred that section 242B(c)(3)(B) of
party, such as the petitioner, failed to exercise due diligence    the Act permitted him to file a motion to reopen the
on his own behalf, filing the recision motion almost a year        in absentia order of deportation at any time because he failed
after actual notice. Scorteanu then perfected this timely          to receive notice of the hearing. Petitioner has specifically
appeal.                                                            contended that the language of section 242B(c)(3)(B) requires
                                                                   notice of a scheduled deportation hearing to the alien while
  Jurisdiction over this petition is conferred upon this Court     making notice to the alien’s attorney insufficient, because
by section 106 of the Immigration and Nationality Act,             section 242B(c)(3)(B) refers to notice “to the alien,” rather
8 U.S.C. § 1105a as it existed immediately prior to April 1,       than to the alien or the alien’s counsel. A brief examination
1997, the effective date of the Illegal Immigration Reform         of the applicable statutory language reveals the inadequacy of
and Responsibility Act of 1996 (“IIRIRA”).                         petitioner’s contention.
II. ANALY SIS                                                          Section 242B(c)(3)(B) of the Act directs that an in absentia,
  The Court reviews the denial of a motion to reopen                   order may be rescinded only--
deportation proceedings for abuse of discretion. See INS v.            ...
Doherty, 502 U.S. 314, 323 (1992); Ashki v. INS, 233 F.3d              (B) upon a motion to reopen filed at any time if the alien
913, 921 (6th Cir. 2000); see also INS v. Abudu, 485 U.S. 94,          demonstrates that the alien did not receive notice in
110 (1988).                                                            accordance with subsection (a)(2) or the alien
                                                                       demonstrates that the alien was in Federal or State
  Pursuant to section 242B(c)(3) of the Act, the IJ and the            custody and did not appear through no fault of the alien.
BIA are permitted as a matter of discretion to rescind an in
No. 01-4271                              Scorteanu v. INS       7    8    Scorteanu v. INS                             No. 01-4271

8 U.S.C. § 1252b(c)(3)(B) (1994). The referenced subsection          Men Keng Chang v. Jiugni, 669 F.2d 275, 277-78 (5th Cir.
242B(a)(2) of the Act provides as follows:                           1982) (explaining that service upon appellant’s counsel was
                                                                     effective to constitute notice to appellant).
  In deportation proceedings under section 242--
                                                                        Additionally, Scorteanu’s contention that the Board abused
  (A) written notice shall be given in person to the alien           its discretion by not directly addressing his interpretation of
  (or, if personal service is not practicable, written notice        section 242B(c)(3)(B) is without merit. Relief under section
  shall be given by certified mail to the alien or to the            242B(c)(3)(B) was not available to the petitioner whose then
  alien's counsel of record, if any), in the order to show           attorney of record had, admittedly, received proper notice.
  cause or otherwise,                                                Moreover, the Board need not “list every possible positive
  ...                                                                and negative factor in its decision.” Rodriguez-Rivera v. INS,
  (B) in the case of any change or postponement in the               993 F.2d 169, 170-71 (8th Cir. 1993). As the Fifth Circuit
  time and place of such proceedings, written notice shall           has observed, the Board “has no duty to write an exegesis on
  be given in person to the alien (or, if personal service is        every contention. What is required is merely that it consider
  not practicable, written notice shall be given by certified        the issues raised, and announce its decision in terms sufficient
  mail to the alien or to the alien's counsel of record, if          to enable a reviewing court to perceive that it has heard and
  any)                                                               thought and not merely reacted.” Osuchukwu v. INS, 744
                                                                     F.2d 1136, 1142-43 (5th Cir. 1984). See Torres v. INS, No.
8 U.S.C. § 1252b(a)(2)(A) & (B) (1994).                              93-3617, 1994 WL 284540 (6th Cir. June 27, 1994)
                                                                     (unpublished disposition) (concluding that it was sufficient to
   Petitioner has admitted that attorney Muresan, his then           prove that the Board fully considered the petitioner’s claims
counsel of record, received proper certified notification of the     when the Board explicitly recited that it had reviewed the
March 26, 1997 hearing. Because § 242B(c)(3)(B) provides             record and the IJ’s decision and adopted the reasoning of the
for reopening of in absentia proceedings only as a “remedy           IJ); Najib v. INS, No. 93-3139, 1994 WL 95935 (6th Cir.
for improper service,” relief under this section is unavailable      March 23, 1994) (unpublished disposition) (noting that the
to Scorteanu. See Dobrota v. INS, 311 F.3d 1206, 1211 (9th           Board adequately set forth its reasons for denying relief by
Cir. 2002) (maintaining that § 242B makes clear that “[a]n           examining the IJ’s application of the facts to the law,
alien does not have to actually receive notice of a deportation      addressing petitioner’s arguments on appeal and then reaching
hearing in order for the requirements of due process to be           its own conclusion). Upon review, the BIA’s opinion and the
satisfied,” as the INS may satisfy notice requirements by            record have provided this court with sufficient basis upon
mailing notice of the hearing to petitioner’s attorney’s address     which to review the BIA’s decision.
of record); Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir.
2000) (concluding that notice was adequate where served                 Petitioner has, further, asserted that exceptional
only upon petitioners’ attorney); Arrieta v. INS, 117 F.3d 429,      circumstances warrant reopening the deportation proceedings
431 (9th Cir. 1997) (finding that notice sent by certified mail      in light of his claim not to have received notice due to
to last known address rendered service presumptively                 ineffective assistance of counsel. Scorteanu has specifically
effective); Wijeratne v. INS, 961 F.2d 1344, 1347 (7th Cir.          averred that a motion to reopen an in absentia deportation
1992) (concluding that an IJ may send notice of hearing to           proceeding may be pursued at any time where ineffective
alien’s representative to effectively constitute notice to alien);   assistance of counsel is shown and, as such, the BIA’s
No. 01-4271                           Scorteanu v. INS         9   10   Scorteanu v. INS                             No. 01-4271

dismissal was a violation of due process. Petitioner’s claim       8 U.S.C. § 1252b(c)(3)(A) (1994).         Section 242B(f)(2),
has little merit.                                                  provides:
  This Circuit has recognized that Fifth Amendment                   The term ‘exceptional circumstances’ refers to
guarantees of due process extend to aliens in deportation            exceptional circumstances (such as serious illness of the
proceedings, entitling them to a full and fair hearing.              alien or death of an immediate relative of the alien, but
Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001).           not including less compelling circumstances) beyond the
The alien must prove that ineffective assistance of counsel          control of the alien.
resulted in prejudice or denial of fundamental fairness in
order to prove a denial of due process. Dokic v. INS, No. 92-      8 U.S.C. § 1252(f)(2) (1994). See also In re Assaad, 23 I. &
3592, 1993 WL 265166, *3 (6th Cir. July 15,1993)                   N. Dec. 553, 558 (BIA Feb. 12, 2003); Matter of Grijalva-
(unpublished) (citing Aguilera-Enriquez v. INS, 516 F.2d 565,      Barrera, 21 I & N Dec. 472, 474 (BIA 1996) (finding
569 (6th Cir. 1975)). Due process requires notice that is          rescission of an in absentia deportation order under
“reasonably calculated, under the circumstances, to apprise        § 242B(c)(3)(A), when petitioner filed to reopen within 180
interested parties of the pendency of the action and afford        days of the deportation order due to exceptional
them an opportunity to present their objections.” Al-              circumstances).
Rawahneh v. INS, No. 00-4447, 2002 WL 1021866 (6th Cir.
May 17, 2002) (unpublished opinion) (finding no due process           Both the immigration court and the Board noted that the
violation where aliens failed to have their mail forwarded to      180 day time period prescribed in § 242B(c)(3)(A) could be
new address and thus failed to receive notice of OSC               subject to equitable tolling due to Muresan’s ineffective
hearing).                                                          assistance of counsel and, thus, suspended from running until
                                                                   Scorteanu had received actual notice. See Iturribarria v. INS,
  Unlike the petitioner in Al-Rawahneh, Scorteanu had              321 F.3d 889, 897-98 (9th Cir. 2003) (holding that equitable
provided a forwarding address to his attorney, but relied upon     tolling is available where petitioner’s attorney engaged in
him to notify the INS of that new address and to notify            fraudulent or deceptive acts); see also Rodriguez-Lariz v. INS,
Scorteanu of his March 26, 1997 hearing date. Muresan’s            282 F.3d 1218, 1224 (9th Cir. 2002) (recognizing equitable
subsequent misfeasance and fraud amounted to the type of           tolling of deadlines and numerical limits on motions to reopen
“exceptional circumstances” contemplated by                        or reconsider during periods when a petitioner is prevented
§§ 242B(c)(3)(A) & (f)(2) of the Act, as material incidents        from filing because of deception, fraud, or error, as long as
beyond Scorteanu’s control. Section 242B(c)(3)(A) of the           the petitioner acts with due diligence in discovering the
Act, directs that an in absentia,                                  deception, fraud, or error).

  order may be rescinded ...                                         Nevertheless, this court need not decide, in the instant case,
                                                                   whether the statute is subject to equitable tolling because,
  (A) upon a motion to reopen filed within 180 days after          even if this court were to so concede, Scorteanu has failed to
  the date of the order of removal if the alien demonstrates
  that the failure to appear was because of exceptional
  circumstances (as defined in subsection (f)(2))
No. 01-4271                                    Scorteanu v. INS         11     12   Scorteanu v. INS                            No. 01-4271

prove entitlement to equitable relief.4 In Jobe v. INS, 238                    respect to the actions to be taken,” as well as any
F.3d 96, 100(1st Cir. 2001) (en banc), the First Circuit                       representations made by counsel to the alien; 2) proof that the
reviewed the petition of an alien who had failed to make a                     movant has informed former counsel of the allegations in
prima facie showing of entitlement to equitable tolling of                     writing, as well as any response received; and 3) a statement
§ 242B(c)(3)(A)’s time limit. Evidence of Jobe’s insufficient                  detailing “whether a complaint has been filed with
diligence disposed the court to dismiss the petition without                   appropriate disciplinary authorities regarding such
deciding whether the equitable tolling doctrine would apply                    representation, and if not, why not.” Id.; see also Saakian v.
to the statutory provision. Id. Similarly, in the instant case,                INS, 252 F.3d 21, 25 (1st Cir. 2001); Lopez v. INS, 184 F.3d
this court need not address whether Muresan’s ineffective                      1097, 1100 (9th Cir. 1999); Huicochea-Gomez v. INS, 237
assistance of counsel warranted equitable tolling because,                     F.3d at 699.
even after having received actual notice and having retained
different counsel, Scorteanu exceeded the statutory time limit                   Scorteanu needed only to notify former attorney Muresan
by waiting until February 12, 2001 to file his motion to                       of the charge of ineffective assistance of counsel. For his
reopen.                                                                        part, Muresan was not required to submit an affidavit in
                                                                               support of Scorteanu’s charge. In short, Scorteanu has failed
  Petitioner has averred that this lapse of time did not reflect               to prove, as he must, that the lapse of time between March
an absence of due diligence, but rather resulted from the                      2000 and February of the following year was fostered by an
difficulty in locating former counsel Muresan and obtaining                    exceptional circumstance beyond his control. Consequently,
his affidavit pursuant to the requirements of Matter of                        this court affirms the BIA’s dismissal of Scorteanu’s petition
Lozada, 19 I.&N. Dec. 637, 639, 1988 WL 235454 (BIA                            to reopen proceedings.
1988), aff'd, 857 F.2d 10 (1st Cir.1988). However,
Scorteanu’s contention is not persuasive as it represents a
misapplication of the procedural requirements detailed in
Lozada. There, the BIA stated that when an alien has averred
ineffective assistance of counsel, the motion should be
supported by 1) an affidavit setting forth “in detail the
agreement that was entered into with former counsel with

    4
       The issue of equitable tolling due to exceptional circumstances has
split the circuits. Comp are A nin v. Reno, 188 F.3d 127 3, 12 78 (11th Cir.
1999) (holding that § 242B(c)(3)(A) sets forth a “mandatory and
jurisdictional” time bar) with Lopez v. INS, 184 F.3d 10 97, 1100 (9th Cir.
1999) (holding that § 242B(c)(3 )(A)’s time bar is not jurisdictional and
thus subject to eq uitable tolling). See also Damon W . Taaffe, Comm ent:
Tolling the Deadline for Appealing in Absentia Deportation Orders Due
to Ineffective Assistance of Counsel, 68 U .C H I. L. R EV . 1065 (2001)
(proposing a distinction between attorney misfeasance and nonfeasance,
and allowing misfeasant (or actively misleading) ineffective assistance
to constitute an “exceptional circum stance” sufficient to warrant equitably
tolling the 180 day appeal dead line).
