                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2003

Bejar v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket 02-1897




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                                                           PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   No. 02-1897
                         ________________________________

                                   GRACE BEJAR,

                                            Petitioner

                                            v.

                    JOHN ASHCROFT, ATTORNEY GENERAL
                          OF THE UNITED STATES,

                                             Respondent

                           ____________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 21, 2003

               Before: BECKER, Chief Judge, NYGAARD and AMBRO
                                 Circuit Judges.

                                (Filed: March 19, 2003)

JOHN D. PEREZ, P.C.
838 Broad Street
Newark, New Jersey 07102
      Attorney for Petitioner

ROBERT D. MCCALLUM, JR.
Assistant Attorney General Civil Division
FRANK W. FRASER
Senior Litigation Counsel
MICHELLE E. GORDEN
Senior Litigation Counsel
Office of Immigration Litigation
Civil Division
Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
      Attorneys for Respondent


                            ____________________________

                              OPINION OF THE COURT
                           _____________________________

BECKER, Chief Judge.

       Petitioner Grace Bejar, an Ecuadorian national, petitions for review of the order of

the Board of Immigration Appeals (“BIA”) dismissing her claim that the Immigration

and Naturalization Service (“INS”) unlawfully removed her from the United States.

Although she alleges ineffective assistance of counsel, lack of notice, and eligibility for

cancellation of removal, we conclude that we lack jurisdiction to review these claims

because Bejar failed to exhaust her administrative remedies by not appealing the in

absentia removal order of the Immigration Judge within the INA’s mandatory 180-day

window. See 8 C.F.R. § 3.23(b)(4)(ii) (2002). The only claim over which we retain

jurisdiction is her allegation that the INS illegally removed her from the United States

before the end of the 30-day period during which she could appeal the INS’s denial of

her motion to reopen, a step which effected an automatic waiver of her right to appeal the

IJ’s decision. We conclude that the INA does not provide for an automatic stay of

removal during this 30-day appeal period, and as Bejar failed to request such a stay, the

INS acted lawfully in removing her before the period lapsed.

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                            I. Facts and Procedural History

       Bejar was admitted lawfully to the United States in 1979 as a permanent resident.

In 1991, she was convicted of receiving stolen property in violation of New Jersey

criminal law, and in 1992 she pled guilty to, and was convicted of, another count of

receiving stolen property under New Jersey law. For this second conviction, Bejar was

sentenced to 364 days in the Passaic County jail, five years probation, and fifty hours of

community service. Approximately four years later, she was arrested again for one count

of third-degree theft and received another 364-day jail term, of which she served three

months.

       In 1998, Bejar left the country and traveled to the Dominican Republic for

approximately three weeks. When she returned to the United States, she sought

admission as a lawful returning permanent resident. Based on her criminal convictions,

however, the INS determined that she was not entitled to admission and placed her in

removal proceedings, where it charged her with inadmissibility under 8 U.S.C. §

212(a)(2)(A)(i)(I) as an alien convicted of a crime of moral turpitude. From July 1998

until March 1999, Bejar’s administrative case was continued six times, and she does not

dispute that in each instance she received notice of the rescheduled hearing at the 59th

Street address in New York City that she provided to the immigration court.

       In March 1999, the immigration court terminated Bejar’s removal case,

concluding, based on her representations in her application for cancellation of removal,


                                           -3-
that she derived United States citizenship from her parents because they became

naturalized when she was 17 years old. This conclusion was based on her representation

that she was born on May 1, 1964; however, according to the sworn statement that she

completed upon returning to JFK Airport from the Dominican Republic, her true birthday

is May 1, 1963, and the evidence in the record strongly corroborates this prior date and

the resulting implication that she was in fact 18 rather than 17 when her parents became

U.S. citizens. Accordingly, on April 23, 1999, the INS moved to reopen Bejar’s

administrative case. The immigration court granted the agency’s motion, and the

administrative case was reopened on May 10, 1999.

       The immigration court scheduled a hearing for Bejar on July 8, 1999, and it

forwarded notice of the hearing to Bejar’s counsel, who does not dispute that he received

it. On July 8, 1999, however, Bejar did not appear for her hearing, and the immigration

court ordered her removed in absentia. The court’s order notes that Bejar previously

admitted the factual allegations in the notice to appear, and that she had conceded

removability. Bejar did not appeal this removal order, and in June 2001 the INS served

upon her a Notice to Surrender, directing her to report for removal to Ecuador on August

14, 2001. She reported to the INS and was placed in custody.

       On August 17, 2001, Bejar filed a motion to reopen her removal case. Through

counsel, she claimed that while her attorney received the notice of hearing in her case set

for July 8, 1999, he was unable to locate and communicate with her despite his efforts to


                                           -4-
do so by phone and letter. She explains that during the relevant time she was not living

at the address she had provided to the court, although she submits that her parents were

living at that address and that they reported receiving no communication from her

attorney. At all events, she claims that she received no notice of her hearing before it

occurred.

       The immigration court denied Bejar’s motion to reopen on September 17, 2001; it

noted that her counsel was served with the notice of hearing, and that as a legal matter

notice to the attorney constituted notice to her. See 8 U.S.C. § 1229(a)(1); In re N-K &

V-S-, Int. Dec. 3312 (BIA 1997). As a factual matter, the judge observed that the

allegations in Bejar’s motion to reopen were not supported or corroborated by any

affidavit or declaration, and that as such, they were not entitled to any evidentiary weight.

(A.R. 52) (citing Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503 (BIA 1980)). The IJ

further noted that, so far as she had informed the court, Bejar was still residing at the

same address where she had lived in 1999 when her case was reopened. Under these

circumstances, the IJ concluded, her alleged failure to receive notice did not constitute a

ground to reopen her case.

       Significantly, as the BIA had denied Bejar’s motion to reopen on September 17,

2001, she had until October 17, 2001 (one month) to appeal that denial. However, as

Bejar had requested no administrative stay, the INS enforced the final removal order and

returned Bejar to Ecuador on October 9, 2001, more than a week before her time to


                                            -5-
appeal lapsed. After she was deported, Bejar, through new counsel, filed an

administrative appeal of the court’s decision, contending that: (1) she did not receive

proper service of notice of her removal hearing; and (2) it was unlawful to remove her

during the time in which she could appeal the IJ’s denial of her motion to reopen. In a

decision dated January 31, 2002, the BIA concluded that Bejar’s departure from the

United States prior to taking an appeal from the IJ’s decision constituted a waiver of her

right to appeal, citing to 8 C.F.R. § 3.3(d). It further determined that her departure

resulted in the withdrawal of her motion to reopen removal proceedings, citing to 8

C.F.R. § 3.2(d). Accordingly, the BIA returned the record to the immigration court

without further action, concluding that “there [was] nothing . . . pending before [it].”

(A.R. 14.)

       Bejar sought reconsideration of the BIA’s decision, again challenging the

lawfulness of the INS’s enforcement of the IJ’s final removal order. On March 21, 2002,

the BIA issued a decision dismissing Bejar’s appeal on the ground that it “fail[ed] to

meet essential statutory or regulatory requirements.” (A.R. 2) (citing 8 C.F.R. §

3.1(d)(2)(i)(G)). Bejar now appeals that decision. We have jurisdiction pursuant to

Section 242(a) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a) (2000), as

amended by the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L.

104-208, 110 Stat. 3009 (1996). We review for abuse of discretion the BIA’s decision

that it lacked jurisdiction to consider Bejar’s appeal because she had departed from the


                                            -6-
United States. Sewak v. INS, 900 F.2d 667 (3d Cir. 1990).

                                       II. Discussion

                                              A.

       Bejar makes four arguments in her appeal. First, she claims that the IJ erred in

removing her in absentia because she failed to receive notice pursuant to Section 239 of

the Immigration and Nationality Act. Second, she argues that her due process rights

were violated when she allegedly received ineffective assistance of counsel during

proceedings before the immigration court, and that this violation warrants reopening her

proceedings. Third, she contends that she satisfies the statutory criteria for the relief of

cancellation of removal pursuant to Section 240A(a) of the Immigration and Nationality

Act. Finally, Bejar asserts that the INS violated 8 C.F.R. §§ 3.23(b)(1)(v) and 3.23

(b)(4)(iii)(C) by removing her before her time for filing an appeal had lapsed.

       In assessing these claims, it is critical to note that we are reviewing only the BIA’s

March 21, 2002 denial of Bejar’s motion to reconsider its January 31, 2002 decision.

That January 31, 2002 decision raised but one question: whether Bejar’s removal was

lawful. Indeed, neither the IJ nor the BIA could have considered Bejar’s ineffective

assistance of counsel or cancellation of removal claims, for she was ordered removed in

absentia on July 8, 1999, yet she did not move to reopen her case until August 17, 2001,

a period of more than two years. The governing regulations state that a removal order

entered in absentia may be rescinded only upon a motion to reopen filed within 180 days


                                             -7-
after the date of removal, if the alien demonstrates that the failure to appear was because

of exceptional circumstances, or at any time if the alien demonstrates that she did not

receive notice in accordance with § 239. 8 C.F.R. § 3.23(b)(4)(ii) (2002). Bejar’s

motion to reopen was therefore untimely absent exceptional circumstances or failure of

notice. Neither is present.

       Regarding exceptional circumstances, in In re Lei, 22 I. & N. Dec. 113, Int. Dec.

3356 (BIA 1998), the BIA held that alleged ineffective assistance of counsel is not an

exception to the 180-day regulatory time limit to file a motion to reopen an in absentia

case.1 Similarly, although Bejar alleges that she did not receive notice of her removal

hearing, the regulations make clear that when an alien is represented, service on the

alien’s attorney constitutes notice to the alien. 8 C.F.R. § 292.5 (2002) (“Whenever a

person is required by any of the provisions . . . to give or be given notice; [or] to serve or

be served with any paper[,] . . . such notice [or] service . . . shall be given by or to, served

by or upon, made by, or requested of the attorney, or representative of record.”). This


  1
    We note that one commentator has proposed drawing a distinction between attorney
misfeasance and nonfeasance, and allowing misfeasant (or actively misleading)
ineffective assistance to constitute an “exceptional circumstance” sufficient to warrant
equitably tolling the 180-day appeal deadline. See Damon W. Taaffe, Comment: Tolling
the Deadline for Appealing in Absentia Deportation Orders Due to Ineffective Assistance
of Counsel, 68 U. C HI. L. R EV. 1065 (2001). Even were we to adopt this approach,
however, Bejar’s case is one involving only nonfeasance, for her attorney did not
affirmatively mislead her about the need to file a motion or to appear in court. Therefore,
even under this commentator’s proposed expansion of equitable tolling in this area,
Bejar’s counsel did not render assistance sufficiently ineffective to justify tolling the 180-
day appeal deadline.

                                             -8-
Court is in accord. See Sewak v. INS, 900 F.2d 667, 673 (3d Cir. 1990) (“[I]f . . . [the

attorney] was retained by [the petitioner], or by someone authorized to act on [the

petitioner’s] behalf, [the petitioner’s] argument that he lacked notice of the hearing

would fail.”). These precedents make clear that we cannot entertain an appeal based on

Bejar’s allegation that she personally failed to receive notice, for it is undisputed that her

former attorney received timely notice of her removal hearing, and service upon her

attorney is considered to be legally sufficient.

                                              B.

       Because Bejar received constructive notice and no exceptional circumstance is

present, we lack jurisdiction to review the legal basis for the IJ’s removal order itself.

Section 1252 of the INA requires an alien to “exhaust[] all administrative remedies

available to [her] as of right” prior to seeking judicial review of a final administrative

removal order, 8 U.S.C. § 1252(d) (2000), and we have held that an alien’s failure timely

to appeal to the BIA the IJ’s denial of his motion to reopen constitutes a failure to

exhaust administrative remedies. See Bak v. INS, 682 F.2d 441, 442-43 (3d Cir. 1982)

(holding that the Court lacked jurisdiction over the petition for review because the aliens

did not appeal the IJ’s denial of their motion to reopen to the Board, resulting in failure

to exhaust their administrative remedies); Marrero v. INS, 990 F.2d 772, 777-78 (3d Cir.

1993) (dismissing the alien’s petition for review based on his failure to file a motion to

reopen his deportation case when he had been ordered deported in absentia).


                                             -9-
       Our lack of jurisdiction extends to Bejar’s arguments that she received ineffective

assistance of counsel and that she satisfied the statutory criteria for the relief of

cancellation of removal pursuant to INA Section 240A(a). Therefore, the only issue

before us is whether Bejar’s removal was unlawful because she was removed prior to the

expiration of the thirty-day period during which she could challenge the IJ’s denial of her

motion to reopen — the immigration court denied Bejar’s motion to reopen on

September 17, 2001, and she was removed on October 9, 2001. The BIA concluded that

it lacked jurisdiction to consider this argument, for the regulations state that “[d]eparture

from the United States of a person who is the subject of deportation proceedings, prior to

the taking of an appeal from a decision in his or her case, shall constitute a waiver of his

or her right to appeal.” 8 C.F.R. § 3.3(e) (2002). This Court, however, retains

jurisdiction to consider whether Bejar’s removal was illegal, for after the enactment of

the Illegal Immigration Reform and Immigrant Responsibility Act, an alien’s removal

from the United States does not divest a federal court of appeals from considering the

claims raised in a petition for review. See Tapia-Garcia v. INS, 237 F.3d 1216, 1217

(10th Cir. 2001).

                                              C.

       We are satisfied that the INS acted lawfully when it removed Bejar before her

time to appeal had run. Under the governing regulations, Bejar’s removal was

automatically stayed only during the time period that the motion to reopen her removal


                                             -10-
case was pending. 8 C.F.R. § 3.23(b)(4)(ii) (2002). This period ended on September 17,

2001, the date on which the IJ denied as untimely her motion to reopen. Neither the INA

nor the regulations provides for an automatic stay of an alien’s removal during the 30-

day period for an alien to appeal any decision by the IJ denying a motion to reopen.

Because other comparable sections of the INA expressly provide for automatic stays

during the appeal period, we must assume that the lack of an automatic stay provision in

this context was intentional. Compare 8 C.F.R. § 3.6(b) (requiring the stay of an alien’s

removal during the 30-day appeal period from the denial of a motion to reopen filed in in

absentia deportation and exclusion cases under 8 C.F.R. § 3.23(b)(4)(iii)) with 8 C.F.R. §

3.23(b)(4)(ii) (providing for no such automatic stay in in absentia removal cases). To be

sure, an alien in an in absentia removal case may seek a stay of her removal pending the

disposition of her appeal, and it is within the BIA’s discretion to grant such a stay. See 8

C.F.R. § 3.6(b) (2002) (“The Board may, in its discretion, stay deportation while an

appeal is pending” from any order of the IJ denying a motion to reopen.). Here,

however, Bejar did not request a stay of her removal, so the INS’s decision to enforce the

IJ’s final removal order was lawful.

       Because we conclude that the INS acted lawfully in removing Bejar before her

time to appeal had lapsed, we will deny the petition to review the BIA’s order dismissing

Bejar’s appeal.




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