           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 4, 2009

                                     No. 09-60024                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



EDGAR MARCELO ILLESCAS-PINOS

                                                   Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                 BIA No. A73 084 555


Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
       Edgar Illescas-Pinos (“Illescas”) petitions for review of a Board of
Immigration Appeals (“BIA”) order dismissing his appeal from the denial of a
motion to reopen 1994 deportation proceedings in which a deportation order was
entered against him in absentia. Illescas seeks to reopen the proceedings based
upon a lack of notice of his deportation hearing.                Alternatively, he urges
reopening because exceptional circumstances caused his failure to appear and


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                       No. 09-60024

argues that the BIA should have equitably tolled the filing deadline applicable
to motions to reopen on this basis.
       After review of the record on appeal, we hold that the BIA did not abuse
its discretion in denying Illescas’s motion to reopen based upon lack of notice.
The petition for review on this ground is denied. Further, Illescas failed to
exhaust his administrative remedies because he did not raise the equitable
tolling argument before the BIA. Accordingly, this court lacks jurisdiction to
review the equitable tolling claim and we dismiss this portion of the appeal.
                                     I. Background
       The briefs and the record reveal a cluttered factual and procedural
background, but the facts relevant to this appeal are as follows: Illescas is a
native and citizen of Ecuador.             On August 10, 1994, Immigration and
Naturalization Service (“INS”) agents arrested Illescas because he entered the
United States without inspection.            Illescas was released on bond on Sep-
tember 12, 1994. On October 11, 1994, the Immigration Court sent a Notice of
Hearing in Deportation Proceedings (“notice”) via certified mail to Illescas’s
counsel of record, Thelma Garcia (“Garcia”).              Though Garcia was present,
Illescas did not appear at his November 1, 1994, hearing and the Immigration
Judge (“IJ”) subsequently ordered him deported.
       On August 20, 2008, Illescas filed a motion to reopen,1 arguing that he
lacked notice of the deportation hearing due to the ineffective assistance of
counsel. Specifically, Illescas claimed that Garcia never notified him of the




       1
        The IJ denied an earlier-filed motion to reopen on May 19, 2008, but this decision was
not appealed to the BIA and is not before this court.

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deportation hearing date. The IJ denied the motion, the BIA dismissed Illescas’s
appeal, and Illescas brought the instant petition for review.
                            II. Standard of Review
      Motions to reopen immigration proceedings are disfavored.              INS v.
Doherty, 502 U.S. 314, 323, 112 S. Ct. 719, 724 (1992). Accordingly, this court
reviews the BIA’s denial of a motion to reopen for an abuse of discretion. Zhao
v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). Under this “highly deferential”
standard, we will affirm the BIA’s decision unless it is “‘capricious, racially
invidious, utterly without foundation in the evidence, or otherwise so irrational
that it is arbitrary rather than the result of any perceptible rational approach.’”
Id. at 304 (quoting Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993)).
                                 III. Discussion
A. Lack of Notice
      Because Illescas’s hearing notice was served between June 13, 1992, and
April 1, 1997, 8 U.S.C. § 1252b provides the applicable administrative
procedures. See In re Mancera-Monroy, 22 I. & N. Dec. 79, 82 n.1 (BIA 1998).
Subsection (a)(2) requires that “written notice [of the time and place of the
deportation proceedings] shall be given in person to the alien (or, if personal
service is not practicable, written notice shall be given by certified mail to the
alien or to the alien’s counsel of record, if any) . . . .” 8 U.S.C. § 1252b(a)(2)(A)
and (B). A deportation order may be entered in absentia “after written notice
required under subsection (a)(2) of this section has been provided to the alien or
the alien’s counsel of record” and the alien fails to appear.              8 U.S.C.
§ 1252b(c)(1). Additionally, § 1252b(c)(3)(B) provides that a deportation order
entered in absentia may be rescinded “upon a motion to reopen filed at any time


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                                        No. 09-60024

if the alien demonstrates that the alien did not receive notice in accordance with
subsection (a)(2) of this section . . . .”
       Illescas argues that, although notice to counsel is sufficient to justify the
initial entry of an in absentia order under § 1252b(c)(1), § 1252b(c)(3)(B)’s
language with regard to reopening in absentia proceedings is more narrow.
Illescas emphasizes that subsection (c)(3)(B) allows rescission of an order if “the
alien did not receive notice,” and Illescas contends that receipt of notice by
counsel is not receipt by the alien. Accordingly, Illescas argues that Garcia’s
receipt of notice by certified mail does not disqualify him from reopening based
upon lack of notice. We disagree.
       Illescas’s position ignores the remaining language of subsection(c)(3)(B),
which allows motions to reopen if “the alien did not receive notice in accordance
with subsection (a)(2).” 8 U.S.C. § 1252b(c)(3)(B) (emphasis added). The plain
language of subsection (a)(2) clearly contemplates that, when personal service
on the alien is impracticable,2 notice may be given “to the alien or the alien’s
counsel of record.” 8 U.S.C. § 1252b(a)(2)(A) and (B) (emphasis added). See also
Scorteanu v. INS, 339 F.3d 407, 411-12 (6th Cir. 2003) (rejecting argument that
subsection (c)(3)(B) renders notice to counsel insufficient by referring to notice
“to the alien” rather than “to the alien or his counsel” and holding that, per the
statutory language of 8 U.S.C. § 1252b(a)(2) and (c)(3)(B), the attorney’s receipt
of notice constitutes notice to the alien). Not surprisingly, Illescas points to no
cases supporting his contention that, in the reopening context, counsel’s receipt



       2
         Personal service is deemed impracticable when the respondent is not in immigration
court before the IJ. In re Grijalva, 21 I. & N. Dec. 27, 35 (BIA 1995). Illescas does not contend
that he should have been personally served.

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of notice is not equivalent to the alien’s receipt.3 Because Illescas does not
dispute Garcia’s receipt of notice by certified mail, we hold that the BIA did not
abuse its discretion when it found that Illescas was properly provided with
notice of his deportation hearing.
B. Exceptional Circumstances
       Though Garcia’s receipt of notice precludes Illescas’s motion to reopen
under § 1252b(c)(3)(B) for lack of notice, Illescas’s claim that Garcia rendered
ineffective assistance by failing to notify him of the deportation hearing may
constitute “exceptional circumstances” warranting reopening. See Goonsuwan
v. Ashcroft, 252 F.3d 383, 391 (5th Cir. 2001). 8 U.S.C. § 1252b(c)(3)(A) provides
that a deportation order may be rescinded “upon a motion to reopen filed within
180 days after the date of the order of deportation if the alien demonstrates that
the failure to appear was because of exceptional circumstances . . . .” Assuming
without deciding that Illescas can make out an ineffective assistance of counsel
claim,4 we agree with the BIA’s conclusion that Illescas’s August 20, 2008,
motion to reopen on this ground was untimely because it was filed more than
180 days after the November 1, 1994, deportation order.


       3
         Illescas cites this court’s decision in Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir.
2009), to support his proposition that the alien, not the alien’s attorney, must “actually
receive” notice. In accordance with Gomez, Illescas correctly states that the inquiry when
considering a motion to reopen is whether the alien actually received notice, not whether
notice was properly mailed. In Gomez, neither the alien nor an attorney of record received the
mailed notice. However, the issue in this case is not whether actual receipt is required but
whether counsel’s actual receipt–which is undisputed–satisfies the statutory requirements of
notice to the alien. The plain language of § 1252b(c)(3)(B) indicates that notice to counsel is
sufficient, and Gomez does not hold otherwise.
       4
         See Lara v. Trominski, 216 F.3d 487 (5th Cir. 2000) (upholding the BIA’s use of the
procedural requirements articulated in Matter of Lozada, 19 I. & N. 637 (BIA 1988), to
establish an ineffective assistance of counsel claim).

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                                 No. 09-60024

      On appeal, Illescas asserts that the BIA wrongly concluded that the 180-
day filing deadline could not be equitably tolled. However, this court lacks
jurisdiction to review the issue because Illescas never presented his claim for
equitable tolling to the BIA and therefore failed to exhaust his administrative
remedies. 8 U.S.C. § 1252(d)(1); Omari v. Holder, 562 F.3d 314, 318-19 (5th Cir.
2009). See also Joumaa v. Gonzales, 446 F.3d 244, 246 (1st Cir. 2006); Mahamat
v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005). Accordingly, this portion of
Illescas’s appeal must be dismissed.
                               IV. Conclusion
      For the foregoing reasons, Illescas’s petition for review is DENIED in part
and DISMISSED in part.




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