                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                No. 04-12060                    APRIL 25, 2005
                            Non-Argument Calendar             THOMAS K. KAHN
                          ________________________                 CLERK


                              BIA No. A76-428-068

HASHEM LAHIJANI,
                                                                Petitioner,

      versus

U.S. ATTORNEY GENERAL,
                                                                Respondent.
                         _________________________

                        Petition for Review of an Order of
                        the Board of Immigration Appeals
                         _________________________

                                (April 25, 2005)


Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Hashem Lahijani seeks review of the Board of Immigration Appeals’s

decision to affirm the immigration judge’s denial of his motion to reopen his

removal proceedings. We reluctantly deny his petition.
                                          I.

      Lahijani is an Iranian citizen. He is a musician, which doesn’t sit well with

the mullahs who currently run the Iranian government. On “several occasions,”

Lahijani has been detained and tortured for playing his instrument. He is also

Jewish. This, too, does not sit well with the mullahs. Iranian Jews are regularly

charged with made-up allegations of spying for Israel and sentenced to long terms

in jail by government-sponsored kangaroo courts.

      Lahijani fled Iran so that he would no longer be tortured and have to live

under the constant fear of being arrested. He came to the United States on

February 10, 1998. After Lahijani left, the Iranian police raided his family’s home

looking for him. Lahijani’s brother was arrested for spying and communicating

with the western world; he lost his job and the title to his home.

      In this country Lahijani petitioned for asylum, withholding of removal, and

relief under the Convention Against Torture on May 11, 1998. Thereafter, the

Immigration and Naturalization Service charged Lahijani with removal, which

Lahijani conceded. The INS scheduled a hearing before an immigration judge in

Miami on November 5, 1998.

      On the appointed day, Lahijani and his attorneys, Edward Abramson and

Samuel Blanco, showed up twenty minutes late. Tropical Storm Mitch had hit

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Miami the night before, making it difficult to drive on the roads. When the three

men arrived at the hearing, the IJ had already ordered that Lahijani be removed in

absentia.

      Abramson and Blanco moved to reopen the hearing because of an

“exceptional circumstance,” namely, the fact that a tropical storm had hit Miami

the night before the hearing. The IJ denied the motion, stating that “traffic is not

an exceptional circumstance excusing one’s appearance.” Through Abramson and

Blanco, Lahijani appealed to the BIA on February 16, 1999, but a decision did not

come quickly.

      Soon after his attorneys filed the appeal, Lahijani moved to California.

Abramson and Blanco told him to fill out the appropriate change of address form

and send it back to them. They said they would forward it on to the INS.

      But as the months passed and the BIA continued to sit on his appeal,

Lahijani became concerned that he might be deported while it was pending. He

tried to call Abramson and Blanco, but they would not return his phone calls. On

his last attempt, the firm told Lahijani that Blanco, who was primarily responsible

for his case, had moved and it did not know where he had gone.

      Troubled by that news, Lahijani asked another attorney, Sheila Latimer, to

find out the status of his appeal. In April 2000, over a year after Abramson and

                                          3
Blanco had filed Lahijani’s appeal of the IJ’s decision, Latimer filed a “Notice of

Entry of Appearance as Attorney or Representative Before the Board of

Immigration Appeals,” signed by both her and Lahijani. Latimer also filed a

motion to expedite the BIA’s decision on Lahijani’s appeal because Lahijani “lives

with the threat of forcible removal to Iran absent the asylum hearing he sought

when he fled to this country seeking refuge.”

      Finally, more than two years after Latimer’s motion to expedite the appeal,

the BIA granted Lahijani’s motion to reopen his asylum hearing on June 25, 2002.

It remanded the case for further proceedings before the IJ, and notified Latimer

that a new hearing had been scheduled for Lahijani on July 19, 2002. No notice

was sent to Lahijani in California, presumably because the INS did not have his

address. Apparently, Abramson and Blanco had not sent in the form as they had

promised.

      Latimer, however, did not believe that Lahijani was her client (nor did

Lahijani believe that Latimer was his attorney because he did not pay her and did

not sign a representation agreement with her). She did not inform Lahijani that he

had won his appeal and that his hearing had been rescheduled. As a result, on the

day of the hearing neither Lahijani nor Latimer showed up. The IJ again ordered

that Lahijani be removed in absentia.

                                         4
      Meanwhile, after several more months of hearing nothing about his appeal

(because Latimer had not passed on the information), Lahijani hired a third

attorney, Marjan Bahmani, to inquire about the status of his case. Bahmani was

informed that a new hearing had been scheduled on July 19, but that because

Lahijani or his counsel had not shown up, the IJ had again ordered that Lahijani be

removed in absentia.

      Bahmani immediately filed a motion with the IJ to reopen the hearing,

arguing that Abramson and Blanco had been ineffective by not notifying Lahijani

of the hearing, and that the situation in Iran had worsened since Lahijani had filed

his original asylum petition. The IJ denied this second motion to reopen the

asylum hearing because Lahijani failed to allege facts sufficient to demonstrate

that his prior counsel was ineffective.

      The BIA summarily affirmed and adopted the IJ’s decision. Lahijani now

offers four reasons why his petition to review the BIA’s decision should be

granted.

                                          II.

      Lahijani first contends that he did not receive notice of the rescheduled

hearing. Thus, Lahijani argues, the IJ abused its discretion by denying his second

motion to reopen his asylum hearing. Lahijani is incorrect.

                                          5
      The immigration statutes require the INS to serve an alien with proper

notice of his asylum hearing. If it does not serve the alien with proper notice, the

hearing is invalid and can be reopened at anytime. See 8 U.S.C. §

1229a(b)(5)(C)(ii). Actual notice, however, is not required. The INS meets its

statutory obligation if it serves the alien’s counsel of record with notice of the

hearing. Anin v. Reno, 188 F.3d 1273, 1277 (11th Cir. 1999); see also Matter of

Borocio, 19 I. & N. Dec. 255, 259 (1985).

      That’s what happened here. Latimer filed a “Notice of Entry of

Appearance” on April 27, 2000, stating, “I hereby enter my appearance as attorney

(or representative) for and at the request of the following named person(s):

Hashem Lahijani.” The INS served Latimer, Lahijani’s counsel of record, with

proper notice of the July 19, 2002 hearing on July 3, 2002. Lahijani does not

argue that this notice was defective. Accordingly, the INS’s July 3, 2002 notice to

Latimer was also a constructive notice to Lahijani of his rescheduled hearing. See

Anin, 188 F.3d at 1277.

                                         III.

      In the alternative, Lahijani contends that, despite the fact that he had

constructive notice of the hearing, his failure to appear was due to the exceptional

circumstance that his counsel was ineffective and therefore, should be excused.

                                           6
      The immigration statutes mandate that an alien’s failure to attend a hearing

shall be excused, and the hearing reopened, if the alien “demonstrates that the

failure to appear was because of exceptional circumstances.” 8 U.S.C. §

1229a(b)(5)(C)(i). Ineffective assistance of counsel has been held to be such a

circumstance. However, as with habeas petitioners, the standard for an alien to

prove that he had ineffective assistance of counsel is high. Specifically,

      [a] motion to reopen or reconsider based upon a claim of ineffective
      assistance of counsel requires (1) that the motion be supported by an
      affidavit of the allegedly aggrieved respondent setting forth in detail
      the agreement that was entered into with counsel with respect to the
      actions to be taken and what representations the counsel did or did
      not make to the respondent in this regard, (2) that counsel whose
      integrity or competence is being impugned be informed of the
      allegations leveled against him and be given an opportunity to
      respond, and (3) that the motion reflect whether a complaint has been
      filed with appropriate disciplinary authorities with respect to any
      violation of counsel’s ethical or legal responsibilities, and if not, why
      not.

Matter of Lozada, 19 I. & N. Dec. 637, 639 (1988); see also Gbaya v. U.S.

Attorney Gen., 342 F.3d 1219, 1221–23 (11th Cir. 2003) (applying the Lozada test

for ineffective assistance of counsel).

      Lahijani argues that Abramson and Blanco, his first attorneys, were

ineffective because they did not return his phone calls and did not file his change-

of-address form, which, if they had, would have given Lahijani notice of the July



                                          7
19, 2002 hearing. Even if true, these allegations do not establish an exceptional

circumstance.

      As of April 27, 2000, before the BIA issued its decision to remand

Lahijani’s case for a new hearing, Latimer was Lahijani’s official counsel of

record. When the BIA finally issued its decision more than two years later, it

notified Latimer—not Abramson and Blanco—that Lahijani had won the appeal.

And on July 3, 2002, the INS notified Latimer—not Abramson or Blanco—that

Lahijani’s hearing was rescheduled for July 19, 2002. Abramson and Blanco

simply were not in the picture when the rehearing was scheduled.

      Lahijani does not argue that Latimer was ineffective. Rather, he argues that

Latimer was not his attorney. (In support, Lahijani cites to a letter in the record

from Latimer stating that she did not believe she represented him.) But this is

contrary to the “Notice of Entry of Appearance” signed by both Latimer and

Lahijani, which states, “I hereby enter my appearance as attorney (or

representative) for and at the request of the following named person(s): Hashem

Lahijani.” And, it is also contrary to the motion to expedite the appeal that

Latimer filed on Lahijani’s behalf. Clearly, both knew that Latimer was acting as

Lahijani’s attorney.




                                          8
      Moreover, Lahijani has failed to demonstrate any of the Lozada factors in

regard to Latimer as his counsel. Therefore, he has not met his burden to

demonstrate exceptional circumstances that would excuse his absence from the

July 19, 2002 asylum hearing.

                                         IV.

      Lahijani’s third contention is that the failure to afford him a hearing on his

asylum petition denied him due process under the Fifth Amendment. This

argument is meritless.

      Under the Due Process Clause of the Fifth Amendment, an alien must be

afforded an opportunity to be heard on his removal proceedings and notice of that

opportunity. See Fernandez-Bernal v. U.S. Attorney Gen., 257 F.3d 1304, 1310

n.8 (11th Cir. 2001). “Due process is satisfied if notice is accorded in a manner

reasonably calculated to ensure that notice reaches the alien.” Anin, 188 F.3d at

1277–78.

      Lahijani was afforded not one, but two opportunities to contest removability

and present his claims for asylum, withholding of removal, and relief under the

CAT. The INS sent the notice of his two hearings to his respective attorneys-of-

record at the time those hearings were scheduled. This was “reasonably calculated




                                          9
to ensure that notice reaches the alien.” See id. Accordingly, Lahijani was not

deprived of due process under the Fifth Amendment.

                                         V.

      Finally, Lahijani contends that the IJ abused its discretion by not reopening

his asylum hearing based on deteriorating conditions for Jews in Iran.

      While Lahijani is correct that the IJ has discretion to reopen an asylum

hearing because of new, “material” evidence, the new evidence must not have

been “available or could not have been discovered or presented at the [alien’s]

former hearing.” 8 C.F.R. § 3.2(c)(1). That is, for the IJ to have discretion to

reopen a hearing based on new evidence, there must have been evidence presented

at a “former hearing.” Here, Lahijani did not have a former hearing because he

failed to show up. He was found removable in absentia twice. Thus, 8 C.F.R. §

3.2(c)(1) cannot apply.

      PETITION DENIED.




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