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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-10993
                        Non-Argument Calendar
                      ________________________

                       Agency No. A075-435-916



DENEISE BENJAMIN-STUBBS,

                                                                      Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

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

                            (September 9, 2014)

Before WILSON, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Deneise Benjamin-Stubbs, a native and citizen of Jamaica proceeding pro se,

seeks review of the Board of Immigration Appeals’s (BIA) affirmance of the

Immigration Judge’s (IJ) denial of her motion to reopen removal proceedings. She

argues that the BIA abused its discretion by affirming the IJ’s denial of her motion

to reopen because she did not have notice of her master calendar hearing and

because her failure to attend the hearing was the result of ineffective assistance of

counsel.

      Benjamin-Stubbs entered the United States on July 18, 1992, at the age of

16, as a non-immigrant B-2 visitor with authorization to remain in the United

States until January 17, 1993. After remaining beyond that date without

authorization from the Department of Homeland Security (DHS), she was issued a

Notice to Appear (NTA) charging that she was subject to removal for overstaying

her visa. The NTA, along with a list of free legal service providers and an

instruction to notify the DHS of any change of address, was sent by regular mail to

her Laken Drive residence. On June 10, 1998, the immigration court continued her

master calendar hearing to August 5, 1998 and had her lawyer, who had filed an

appearance that day, personally served with a notice of the hearing. He was

subsequently granted leave to withdraw after attempting, and failing, to make

contact with Benjamin-Stubbs in connection with the hearing.




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      Benjamin-Stubbs failed to appear at the master calendar hearing, and an

immigration judge ordered her removed in absentia. A copy of the immigration

judge’s order was mailed to the Laken Drive residence.

      Thirteen years later, Benjamin-Stubbs retained new counsel and attempted to

rescind the removal order by filing a motion to reopen removal proceedings

alleging that she received ineffective assistance of counsel and that she was not

given notice of the master calendar hearing. In support, Benjamin-Stubbs stated

that an unnamed representative of a free legal service provider advised her not to

attend the master calendar hearing because the matter would be adjourned. She

only discovered the removal order when she filed for an adjustment of status based

on her 2002 marriage to a United States citizen.

      The IJ denied Benjamin-Stubbs’s motion to reopen, concluding that she had

constructive notice of the master calendar hearing because her attorney had been

personally served with written notice of the hearing. Moreover, the IJ determined

that Benjamin-Stubbs failed establish that her absence from the hearing was

explained by exceptional circumstances because she did not provide adequate

documentary evidence. In addition, her motion to reopen, to the extent it was

based on a claim of exceptional circumstances, was time-barred as beyond the 180-

day time limit imposed by 8 C.F.R. § 1003.23(b)(4)(ii). The IJ’s decision was




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affirmed on appeal by the Board of Immigration Appeals. Benjamin-Stubbs now

appeals the denial of her motion to reopen.

      We “review[] the BIA’s denial of a motion to reopen for an abuse of

discretion.” Mejia Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999). We

review the decision of the BIA as well as any portions of the IJ’s opinion with

which the BIA agrees. See Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350

(11th Cir. 2009) (reviewing the decisions of both the IJ and BIA as they related to

the question of whether petitioner had established a well-founded fear of

persecution because the BIA agreed with the IJ’s finding on that issue).

      Petitioners are required to exhaust all administrative remedies available in

order for this Court to review a final order of removal. See Amaya-Artunduaga v.

U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam). Accordingly,

if a petitioner failed to raise a claim before the BIA, we lack jurisdiction to

consider that claim. See id. Additionally, we have no authority to consider

evidence outside of the administrative record. Al Najjar v. Ashcroft, 257 F.3d

1262, 1282 (11th Cir. 2001).

      An undocumented immigrant who fails to appear at her removal hearing will

be ordered removed in absentia when it is “establishe[d] by clear, unequivocal, and

convincing evidence that . . . written notice was . . . provided and that the

[undocumented immigrant] is removable.” 8 U.S.C. § 1229a(b)(5)(A). An in


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absentia order of removal may be rescinded by filing, within 180 days, a motion to

reopen that “demonstrates that the failure to appear was because of exceptional

circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). Ineffective assistance of counsel

may qualify as an “exceptional circumstance.” See Montano-Cisneros v. U.S. Att’y

Gen., 514 F.3d 1224, 1226 (11th Cir. 2008).

      The 180-day deadline for seeking reopening of removal proceedings after an

in absentia order of removal based on exceptional circumstances is a non-

jurisdictional, claim-processing rule. Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d

1357, 1362 n.4 (11th Cir. 2013) (en banc) (per curiam). Moreover, this rule is

subject to equitable tolling. See id. at 1363–65. “[E]quitable tolling requires a

litigant to show (1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way.” Id. at 1363 n.5 (internal

quotation marks omitted). The facts underlying a claim of ineffective assistance of

counsel “may serve both as a basis for equitable tolling and for the merits of [a]

motion to reopen.” Ruiz-Turcios v. U.S. Att’y Gen., 717 F.3d 847, 851 (11th Cir.

2013).

      An undocumented immigrant may also move, at any time, to reopen removal

proceedings following an in absentia order of removal if she did not receive notice

of her removal hearing. 8 U.S.C. § 1229a(b)(5)(C)(ii). The notice requirement




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may be fulfilled by personally serving a notice of hearing to the undocumented

immigrant’s counsel. 8 U.S.C. § 1229(a)(1).

      Unfortunately, Benjamin-Stubbs was misadvised about the consequences of

the August 5, 1998 hearing by the free legal clinic from which she sought

assistance. She was also ill-advised about her rights in connection with her

application to adjust her status to lawful permanent resident. The denial of her

motion to reopen appears harsh. Benjamin-Stubbs is married to a United States

citizen, is the mother of two United States citizens, and has been in the country

since she the age of 16—nearly 22 years.

      However, we do not write on a blank slate, and we cannot say that the BIA

abused its discretion here. Benjamin-Stubbs’s motion to reopen was filed well

after the 180-day limitations period, and she has not presented any evidence

suggesting that she is entitled to equitable tolling. Thus, to the extent she sought

rescission based on the exceptional circumstance of ineffective assistance of

counsel, her claim is time-barred. See 8 U.S.C. § 1229a(b)(5)(C)(i). Second, the

BIA correctly determined that Benjamin-Stubbs had constructive notice of the

hearing because her counsel was personally received a notice of hearing. See 8

U.S.C. § 1229(a)(1). Moreover, by arguing that a free legal services representative

informed her not to attend the master calendar hearing, Benjamin-Stubbs admitted

to having actual notice of the hearing. Thus, Benjamin-Stubbs lacked a basis to


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justify reopening her removal proceedings, and the BIA did not abuse its discretion

by concluding otherwise. Accordingly, we deny the petition.

      Benjamin-Stubbs now argues for the first time that her lawyer provided

ineffective assistance of counsel by failing to forward the notice of hearing to her

new address. Because this argument was not raised before the BIA, Benjamin-

Stubbs failed to exhaust her administrative remedies and we lack jurisdiction to

entertain it. Amaya-Artunduaga, 463 F.3d at 1250. Benjamin-Stubbs also asserts

for the first time that she did not seek assistance from the free legal services

representative until after the immigration court entered the order of removal and

that several other attorneys continued to provide ineffective assistance of counsel

over the course of 14 years. Despite these new contentions, we may not consider

factual matters outside the administrative record. Al Najjar, 257 F.3d at 1282.

Because we lack jurisdiction to consider these newly-raised claims, we dismiss this

part of Benjamin-Stubbs’s petition.

      PETITION DENIED IN PART AND DISMISSED IN PART.




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