UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CECILIA RIVERA,
Petitioner,

v.
                                                                       No. 96-2489
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals.
(A73-089-446)

Submitted: August 19, 1997

Decided: September 3, 1997

Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Alberto Manuel Benitez, GEORGE WASHINGTON UNIVERSITY
IMMIGRATION CLINIC, Washington, D.C., for Petitioner. Frank
W. Hunger, Assistant Attorney General, Francesco Isgro, Senior Liti-
gation Counsel, Donald A. Couvillon, Office of Immigration Litiga-
tion, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Cecilia Rivera seeks review of the Board of Immigration Appeals'
order denying her motion to reopen her deportation proceedings.
Rivera's hearing was held in absentia as permitted under Immigration
and Nationality Act (INA) § 242B, 8 U.S.C.A.§ 1252b(c)(1) (West
Supp. 1997), in cases where an alien or her counsel receives written
notice of the proceeding, but the alien fails to appear. Because we
conclude that the Board did not abuse its discretion in finding that
Rivera's failure to appear at her deportation hearing was not the result
of exceptional circumstances, we affirm the Board's denial of the
motion to reopen and deny Rivera's petition for review.

Rivera contends that the Board abused its discretion in denying her
motion to reopen and in concluding that she had not shown excep-
tional circumstances for her failure to appear at her deportation hear-
ing. Rivera claims that she did not appear because she failed to
receive notice of the hearing from her attorney, and that the motion
to reopen should have been granted on that ground.* Additionally,
Rivera alleges that the Board exceeded its powers by addressing
whether counsel provided ineffective assistance when Rivera alleged
attorney inadvertence but did not explicitly raise ineffective assistance
of counsel.
_________________________________________________________________
*Rivera concedes that her counsel received notice, but contends that
the notice should not be imputed to her because she tried to contact coun-
sel several times to no avail, and because counsel told her, almost three
months before the scheduled hearing, that she did not have a hearing date
"soon." Counsel filed an affidavit stating that she mailed to Rivera a copy
of the hearing notice two months before the hearing, advised Rivera to
get new counsel, and included a list of attorneys. Rivera contends that
she did not receive the notice and letter, either through postal error or
because counsel inadvertently failed to send the letter and notice to her.
Rivera, however, acknowledges receipt of a list of attorneys.

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This court reviews the denial of a motion to reopen deportation
proceedings for abuse of discretion. See INS v. Doherty, 502 U.S.
314, 323-24 (1992); Yanez-Popp v. INS, 998 F.2d 231, 234 (4th Cir.
1993). An order of deportation entered in absentia may be rescinded
if the petitioner demonstrates that she failed to appear because of
exceptional circumstances or if the petitioner establishes that she did
not receive proper notice. See INA § 242B(c)(3), 8 U.S.C.A.
§ 1252b(c)(3) (West Supp. 1997).

We find that the Board did not abuse its discretion in determining
that Rivera did not establish exceptional circumstances requiring
rescission of the denial of her motion to reopen. See INA
§ 242B(f)(2), 8 U.S.C.A. § 1252b(f)(2) (West Supp. 1997). Excep-
tional circumstances are "circumstances (such as serious illness of the
alien or death of an immediate relative of the alien, but not including
less compelling circumstances) beyond the control of the alien." INA
§ 242B(f)(2), 8 U.S.C.A. § 1252b(f)(2). We conclude that Rivera's
claim that she failed to receive notice due to postal error or her attor-
ney's inadvertence does not establish exceptional circumstances. See
id.; see also Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996) (finding
that aliens' traffic difficulties did not constitute exceptional circum-
stances beyond their control). Further, to the extent that Rivera con-
tends that she did not receive proper notice of her deportation
hearings, we determine that the Board properly found that Rivera
received proper notice when her attorney received notice by certified
mail. See 8 C.F.R. § 292.5(a) (1997) (requiring notice to be served on
attorney, if alien is represented); see also INA § 242B(a)(2), (c)(1),
8 U.S.C.A. § 1252b(a)(2), (c)(1) (West Supp. 1997).

Additionally, to the extent that Rivera contends that the Board
abused its powers by analyzing her claim that her attorney's inadver-
tence created exceptional circumstances as an ineffective assistance
claim when she did not explicitly raise the issue on appeal, we find
no abuse. See 8 C.F.R. § 3.1(d)(1) (1997). Because the Board con-
cluded that Rivera's allegations of postal error and attorney inadver-
tence were not sufficient to establish exceptional circumstances, we
conclude that the Board's analysis of her attorney inadvertence claim
as an ineffective assistance of counsel claim was appropriate and nec-
essary, see 8 C.F.R. § 3.1(d)(1) (1997) (stating that the Board has dis-
cretion and authority as appropriate and necessary for disposition of

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case), because a showing of ineffective assistance may establish
exceptional circumstances, see In re Grijalva , Interim Dec. 3284, slip
op. at 3-4 (BIA June 14, 1996) (finding alien's failure to appear
because of ineffective assistance of counsel sufficient to rescind in
absentia order of deportation).

Accordingly, we affirm the Board's denial of Rivera's motion to
reopen and deny Rivera's petition for review. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED

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