                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            JUNE 27, 2012
                            No. 11-15556
                                                             JOHN LEY
                        Non-Argument Calendar
                                                              CLERK
                      ________________________

                        Agency No. A077-003-179




MOHANRAJ RAHIMAN,

                                                                 Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                Respondent.

                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       ________________________

                             (June 27, 2012)

Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:
      Mohanraj Rahiman, a native and citizen of Guyana, seeks review of the

Board of Immigration Appeals’ (“BIA”) order dismissing Rahiman’s appeal of the

Immigration Judge’s (“IJ”) denial of his motion to reopen and rescind his in

absentia removal order, filed pursuant to the Immigration and Nationality Act

(“INA”) § 240(b)(5)(C), 8 U.S.C. § 1229a(b)(5)(C). After review, we dismiss in

part and deny in part Rahiman’s petition for review.

                               I. BACKGROUND

      While this petition is before this Court on only a motion to reopen, we

outline what happened in the nine years before the motion was filed.

A.    1999 Notice to Appear

      On March 20, 1999, Rahiman tried to use a counterfeit Trinidadian passport

to enter the United States through Miami International Airport and was detained.

In credible fear interviews, Rahiman, who is of Indian descent, said that he feared

persecution in Guyana by people of African descent.

      On April 5, 1999, the Immigration and Naturalization Service (“INS”)

served Rahiman with a Notice to Appear, charging him with: (1) procuring, by

fraud or willful misrepresentation, a visa, other documentation, or admission into

the United States, in violation of INA § 212(a)(6)(C)(i), 8 U.S.C.

§ 1182(a)(6)(C)(i); and (2) being an alien who, at the time of application for

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admission, was not in possession of a valid unexpired immigrant visa, reentry

permit, border crossing card, or other valid entry document, in violation of INA

§ 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I).

      At a July 22, 1999 calendar hearing, Rahiman filed an application for

asylum and withholding of removal. His application asserted that he feared

persecution in Guyana based on his race and his involvement with the Progressive

Youth Organization, which was aligned with the People’s Progressive Party, the

ruling political party and the party of the Indo-Guyanese. During the July 22

hearing, the IJ advised Rahiman, orally and in writing, of the consequences of his

failure to appear at his removal hearing.

B.    March 13, 2002 In Absentia Removal Order

      Rahiman’s asylum hearing was set for August 22, 2000, and notice was

mailed to Rahiman’s attorney. Rahiman did not appear at the hearing, but

Rahiman’s attorney appeared. Noting that Rahiman had received proper notice of

the hearing, the IJ determined that Rahiman had abandoned his claims for relief

from removal and ordered him removed in absentia.

      On September 5, 2000, Rahiman filed a motion to reopen his removal

proceedings, contending that he had not appeared at the asylum hearing because

he was afraid his immigration case would take a “wrong turn,” and thus became

                                            3
nervous and could not board the airplane. The IJ denied the motion to reopen after

finding that Rahiman had not shown exceptional circumstances. Rahiman

appealed to the BIA, which determined that Rahiman had established exceptional

circumstances and remanded to the IJ for further proceedings.

      The IJ set a new hearing date for March 13, 2002. On July 2, 2001, the IJ

mailed notice of the hearing to Rahiman’s counsel of record. Once again,

Rahiman’s counsel attended the March 13, 2002 hearing, but Rahiman did not

appear. The IJ stated that the hearing was held pursuant to proper notice and

determined that Rahiman had abandoned his claims for relief. Noting that “the

issue of removability [had been] resolved,” the IJ ordered Rahiman removed in

absentia.

C.    April 26, 2011 Motion to Reopen

      Nine years later, on April 26, 2011, Rahiman filed a motion to reopen his

March 13, 2002 removal hearing and to rescind his in absentia removal order

based on “lack of notice and ineffective assistance of counsel.” Rahiman claimed

that he failed to attend the March 13, 2002 removal hearing because his attorney

did not inform him of it. Rahiman further argued that he was prejudiced by his

attorney’s ineffective assistance because Rahiman recently was detained and was

subject to removal to Guyana, where his life would be threatened. Rahiman

                                         4
attached a copy of an April 20, 2011 Florida Bar complaint in which he alleged

that his attorney in 2002 was not cooperative or helpful, but did not claim that his

attorney failed to tell him of the scheduled hearing.

      Rahiman also attached his sworn statement. Rahiman averred that his

attorney became upset because Rahiman called so often to check on the status of

his immigration case and advised Rahiman he would call when there was news.

When Rahiman did not hear from his attorney, Rahiman tried to call him and got a

recording that the number was no longer in service. Rahiman then learned that a

removal order had been entered on March 13, 2002 and decided he would pursue

his education, as follows:

      I decided to wait and give him his time since I was told these
      proceedings can take several months even up to a year. I never heard
      from him since and finally when I call him, I got a recording saying this
      number is no longer in service. But I did find out that there was a
      deportation order against me on March 13, 2002. At this time I became
      very frustrated and decided I would go to school and pursue my
      education.

Rahiman stated that, thereafter, he earned an associate’s degree at Bronx

Community College, a bachelor’s degree from the City University of New York in

2006 and a master’s degree from Fordham University in 2008.

      Rahiman subsequently submitted a second Florida Bar complaint, dated

May 24, 2011, in which Rahiman claimed that he repeatedly tried to reach his

                                          5
attorney and the failure to reach his attorney resulted in Rahiman not knowing the

date of his March 13, 2002 hearing. Rahiman also submitted documentation

showing that on May 13, 2009, and again on March 17, 2011, he sought assistance

from a New York immigration clinic. With a clinic attorney’s help, Rahiman

requested a copy of his immigration file pursuant to the Freedom of Information

Act and received the file in May 2011.

      On August 17, 2011, the IJ denied Rahiman’s motion to reopen. The IJ

noted that, although Rahiman claimed he did not receive notice of the March 13,

2002 removal hearing due to his counsel’s ineffective assistance, his counsel

appeared on his behalf at that 2002 hearing. The IJ also found, based on

Rahiman’s sworn statement, that Rahiman waited nine years after learning of the

removal order to file the motion to reopen. The IJ concluded that Rahiman’s

motion to reopen was time-barred because it was filed more than 180 days after

entry of the removal order and that ineffective assistance did not equitably toll the

180-day deadline. The IJ alternatively concluded that, even if equitable tolling

applied, Rahiman had not acted with due diligence.

      Rahiman appealed to the BIA arguing, inter alia, that the IJ misread

Rahiman’s sworn statement and that Rahiman did not find out about the in

absentia removal order until some time after the March 13, 2002 hearing, as

                                          6
follows:

      Respondent is not saying that he found out on March 13, 2002 he was
      ordered deported. He is saying he found out that his order of removal
      was entered on that day. He also is not saying that he found out about
      his removal at the time he was calling his lawyer back in 2002. Rather
      he is highlighting here that it is at the time that he finally did call him,
      after waiting all this time, that he discovered that the lawyer’s phone
      was disconnected, and it is roughly around that exact time that he later
      learned he was ordered removed.

Rahiman contended that he was diligent because he sought help from the

immigration clinic in 2009. However, Rahiman did not say when he learned of the

March 13, 2002 removal order or why he waited until 2009 to seek legal

assistance.

      The BIA dismissed Rahiman’s appeal. The BIA determined that Rahiman

received proper notice of the March 13, 2002 hearing because his counsel actually

received notice of the hearing. To the extent Rahiman claimed exceptional

circumstances, his motion to reopen was time-barred and the 180-day deadline

could not be equitably tolled even in the case of ineffective assistance of counsel.

Alternatively, the BIA concluded that Rahiman’s lack of due diligence foreclosed

the application of equitable tolling. Even though Rahiman had notice that the INS

sought to remove him, he failed to take any actions to inquire into the status of his

proceedings from 2002 until he sought legal advice in May 2009 and he failed to



                                           7
offer any explanation for that lengthy wait. The BIA also declined to reopen

Rahiman’s proceedings sua sponte. Rahiman petitioned for review.

                                      II. DISCUSSION

       If an alien fails to appear at his removal hearing, the IJ must order the alien

removed in absentia if the government proves by clear, unequivocal and

convincing evidence that the alien received proper notice and is removable. See

INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A); 8 C.F.R. §§ 1208.10,

1208.2(c)(3)(ii). The alien may move to reopen the proceedings and rescind the in

absentia removal order: (1) within 180 days after the entry of the in absentia

removal order if he shows “that the failure to appear was because of exceptional

circumstances”; or (2) “at any time” if he shows that he did not receive proper

notice of the hearing. INA § 240(b)(5)(C)(i)-(ii), 8 U.S.C. § 1229a(b)(5)(C)(i)-(ii).

Here, Rahiman filed his motion to reopen based on both lack of proper notice and

exceptional circumstances.1


       1
        We review the denial of a motion to reopen for abuse of discretion. Anin v. Reno, 188
F.3d 1273, 1276 (11th Cir. 1999). “Our review is limited to determining whether there has been
an exercise of administrative discretion and whether the matter of exercise has been arbitrary or
capricious.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005) (internal quotation
marks omitted). In the context of a motion to reopen and rescind a removal order entered in
absentia, our review is limited to: (1) “the validity of the notice provided to the alien”; (2) “the
reasons for the alien’s not attending the proceeding”; and (3) “whether or not the alien is
removable.” INA § 240(b)(5)(D), 8 U.S.C. § 1229a(b)(5)(D); see also Contreras-Rodriguez v.
U.S. Att’y Gen., 462 F.3d 1314, 1317 (11th Cir. 2006). Where, as here, the BIA did not
expressly adopt the IJ’s decision or reasoning, we review only the BIA’s decision. See Al Najjar

                                                 8
A.     Notice of March 13, 2002 Hearing

       Rahiman argues that the BIA violated his due process rights when it found

that he received proper notice of the asylum hearing despite his attorney’s

ineffective assistance.

       In removal proceedings, the IJ is required to provide an alien notice

regarding the time and place of each hearing. INA § 239(a)(1)-(2), 8 U.S.C.

§ 1229(a)(1)-(2). That notice may be provided by personal service on the alien or

service by mail to the alien or the alien’s counsel of record. INA § 239(a)(1),

(2)(a), 8 U.S.C. § 1229(a)(1), (2)(a); see also 8 C.F.R. § 1292.5(a). “Due process

is satisfied if notice is accorded in a manner reasonably calculated to ensure that

notice reaches the alien,” and service by mail to an alien’s counsel of record

satisfies this standard. Anin v. Reno, 188 F.3d 1273, 1277-78 (11th Cir. 1999)

(internal quotation marks omitted). Therefore, actual notice to the alien is not

required under the INA and “the fact that [the alien] did not receive actual notice .

. . does not present a violation of the Due Process Clause.” Id. at 1276-77

(interpreting predecessor to INA § 239(a), 8 U.S.C. § 1229(a), formerly found at

INA § 242B(c), 8 U.S.C. § 1252b(c) (1994)).

       Here, the INS mailed notice of the March 13, 2002 hearing to Rahiman’s


v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).

                                               9
counsel of record. That notice contained information as to the date, time and place

of the 2002 hearing and the consequences of failing to appear. Importantly,

Rahiman’s counsel actually received the notice given that he attended the hearing.

The notice was sufficient and was sent in a manner reasonably calculated to ensure

it reached Rahiman. Rahiman’s motion to reopen thus did not show that he failed

to receive proper notice of the March 13, 2002 hearing. Accordingly, the BIA did

not violate Rahiman’s due process rights, much less abuse its discretion, when it

denied Rahiman’s motion to reopen based on lack of notice.

B.    Exceptional Circumstances

      The other basis for Rahiman’s motion to reopen is his attorney’s ineffective

assistance. Under some circumstances, an attorney’s ineffective assistance can

constitute “exceptional circumstances.” See, e.g., Montano Cisneros v. U.S. Att’y

Gen., 514 F.3d 1224, 1226 (11th Cir. 2008) (involving aliens who failed to appear

because counsel advised them they did not need to attend the scheduled hearing).

However, an alien’s motion to reopen and rescind an in absentia removal order

based on exceptional circumstances must be filed “within 180 days after the date

of the order of removal.” INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i).

This Court has explained that because “congressional filing deadlines should be

read literally by federal courts,” the INA’s time limitations with respect to motions

                                         10
to reopen, although “inherently . . . arbitrary and harsh,” are “jurisdictional and

mandatory.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1150 (11th Cir. 2005)

(involving 90-day deadline for general motions to reopen found in INA

§ 240(c)(7)(C), 8 U.S.C. § 1229a(c)(7)(C)); see also Anin, 188 F.3d at 1278.

Consequently, this Court has concluded that those statutory deadlines cannot be

equitably tolled or excused because of ineffective assistance of counsel. See Abdi,

430 F.3d at 1150; Anin, 188 F.3d at 1278.

      Here, it is undisputed that Rahiman’s motion to reopen based on ineffective

assistance of counsel was not filed until April 26, 2011, nine years after the IJ’s

March 13, 2002 removal order. Thus, to the extent Rahiman’s motion to reopen

was based on exceptional circumstances, Rahiman failed to timely file it within the

180-day deadline in INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i).

      Rahiman argues that the 180-day deadline is subject to equitable tolling due

to his counsel’s ineffective assistance. Rahiman points out that other circuits have

determined that the INA’s filing deadlines for motions to reopen are akin to

statutes of limitations and not jurisdictional and thus can be equitably tolled. See,

e.g., Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir. 2005); Iavorski v. INS, 232

F.3d 124, 129-30 (2d Cir. 2000); Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir.

1999). We are bound by Anin and Abdi, however, which do not recognize

                                          11
equitable tolling of filing deadlines for motions to reopen based on ineffective

assistance of counsel. Accordingly, the BIA did not abuse its discretion when it

concluded that Rahiman’s motion to reopen and rescind his in absentia removal

order based on exceptional circumstances was time-barred.

      In any event, we agree with the BIA that, even if the 180-day deadline could

be equitably tolled, the circumstances in Rahiman’s case would not warrant such

equitable relief because Rahiman failed to exercise due diligence. By his own

admission, Rahiman knew of the in absentia removal order before be decided to

pursue his education. Given that Rahiman obtained his bachelor’s degree in 2006,

he learned of the removal order well before 2006. Yet Rahiman took no action

until 2009, when he sought legal assistance from an immigration clinic, and he did

not file his motion to reopen until 2011.

      Finally, Rahiman contends the BIA abused its discretion when it did not

reopen his removal proceedings sua sponte pursuant to 8 C.F.R. § 1003.2(a). We

lack subject-matter jurisdiction to review such a claim. See Lenis v. U.S. Att’y

Gen., 525 F.3d 1291, 1292-93 (11th Cir. 2008). Contrary to Rahiman’s argument,

the Supreme Court has not overruled Lenis. See Kucana v. Holder, 558 U.S. ___,

130 S. Ct. 827, 839 n.18 (2010) (“We express no opinion on whether federal

courts may review the Board’s decision not to reopen removal proceedings sua

                                            12
sponte. Courts of Appeals have held that such decisions are unreviewable because

sua sponte reopening is committed to agency discretion by law.”). Accordingly,

Rahiman’s petition is dismissed to the extent it seeks review of the BIA’s failure

to sua sponte reopen his removal proceedings.

      DENIED IN PART, DISMISSED IN PART.




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