                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-30-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1555




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                               Nos: 04-1555 & 04-3470


                                KHAYDAR JUMAEV,

                                           Petitioner


                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                          Respondent



                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                              (Board No. A78 275 559)


                                Argued April 20, 2005

              BEFORE: ROTH, FUENTES and BECKER, Circuit Judges

Tatiana S. Aristova, Esquire (Argued)
Law Offices of John J. Gallagher
1760 Market Street, Suite 1100
Philadelphia, PA 19103

             Counsel for Petitioner

William C. Minick, Esquire (Argued)
Christopher C. Fuller, Esquire
Douglas E. Ginsburg, Esquire
Linda S. Wernery, Esquire
John D. Williams, Esquire
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

              Counsel for Respondent



                                         OPINION


ROTH, Circuit Judge:

       In this case, we are asked to review a final order of the Board of Immigration

Appeals (BIA), dismissing as untimely Khaydar Jumaev’s petition for review. Jumaev’s

attorney, Tatiana S. Aristova, asserts that the BIA erred. She argues that on October 22,

2003, she filed a proper notice of appearance with the Immigration Court but that the

Immigration Judge (IJ) mailed his order of November 7, 2003, directly to Jumaev, rather

than to her as attorney of record. Once Aristova received actual notice of the IJ’s

decision, she filed her appeal within 30 days of receipt. The government, supporting the

BIA’s decision, takes the position that the administrative record, as it stands, does not

reflect the existence of the notice of appearance purportedly filed by Aristova,

notwithstanding the fact that she has produced her own copy of the entry of appearance

from her files.

       For the reasons explained below, we will grant the petition to review the decision


                                              2
of the BIA and remand this case to it for reconsideration of its decision to dismiss the

appeal. In doing so, we ask the BIA to consider whether equitable tolling might apply in

view of the circumstances presented. See Borges v. Gonzales, 402 F.3d 398, 406 (3d Cir.

2005) (holding “that the 180-day time limitation is more appropriately considered as

analogous to a statute of limitations and, thus, subject to equitable tolling”).

                     I. Factual Background and Procedural History

        As the facts are well known to the parties, we give only a brief description of the

facts and procedural posture of the case.

       Khaydar Jumaev is a citizen of Uzbekistan. He was admitted to the United States

as a nonimmigrant visitor on June 8, 2001. He remained past the time he was permitted

to do so. In October 2001, the Immigration and Naturalization Service (INS) issued a

Notice of Appearance charging removability for overstaying his visa. In these early

proceedings, it appears that Tatiana Aristova represented Jumaev even though no notice

of appearance appears in the record before us. In March 2003, Aristova filed a motion to

withdraw her appearance. This motion was denied. In April 2003, Aristova again filed a

motion to withdraw. This motion was granted on April 15. The basis of both motions

was that Jumaev had chosen new counsel from New York.

       A removal hearing was scheduled on April 23, 2003. Jumaev did not appear. He

was ordered deported in absentia1


       1
        Jumaev alleges that his attorney incorrectly told him not to attend his removal
hearing, and also told him that he had filed an appeal of the in absentia order when the

                                               3
       On October 22, 2003, more than 180 days after the deportation decision, Aristova

filed a motion to reopen with the Immigration Court. It is Aristova’s position that in

conjunction with her motion she filed a new entry of appearance. No such document is,

however, to be found in the administrative record. Nevertheless, the table of contents of

Aristova’s motion supports her position, listing an entry of appearance. In addition,

Aristova has produced her own file copy of her entry of appearance as support for her

claim that she did file it. Moreover, the record reflects that the petition to reopen, a 12-

page pleading, which is the centerpiece of this petition, contained Aristova’s name and

address, as did the accompanying cover letter.

       The legal basis of the motion to reopen was the ineffective assistance of prior

counsel, Sirota, with regard to the April 23 hearing. The government opposed the motion.

On November 7, 2003, the IJ denied the motion as time barred for exceeding the 180 day

limit to move to reopen. The IJ’s order was sent to Jumaev’s home address. The

government argues that the IJ followed the correct procedure because there is no entry of



attorney had not done so. This allegation prompts us to request the BIA to specifically
consider Borges on remand. Jumaev’s allegations may also satisfy the “exceptional
circumstances” test for missing his removal hearing. See 8 C.F.R. § 1003.23(b)(4)(ii). An
alien may move to rescind an order of removal by demonstrating that his failure to appear
was due to “exceptional circumstances.” “A claim of ineffective assistance, if properly
established, could constitute proper grounds for reopening an exclusion proceeding.” Lu
v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001). Jumaev alleges that ineffective assistance of
counsel caused him to miss the hearing because his New York attorney, Sirota, told him the
hearing had been transferred from Philadelphia to New York. Jumaez also alleges that he has
satisfied the requests of Matter of Lozado, 19 I. & N. Dec. 637 (BIA 1988) by reporting these
misrepresentations to the appropriate New York Attorney Disciplinary Board. He also alleges
that Sirota essentially disappeared and was unreachable by telephone.

                                               4
appearance to be found in the record. Aristova argues that Jumaev was prejudiced

because the order should have been mailed to her as counsel. She contends that the loss

of the notice of appearance by the Immigration Court’s clerk’s office should not result in

prejudice to Jumaev. She also notes that the way that the Immigration Court got

Jumaev’s home address2 was by looking through the record, even though it did not extract

Aristova’s address from the motion to reopen.

       On January 7, 2004, Aristova, on behalf of Jumaev, appealed to the BIA. This

date was 60 days after date of the IJ’s decision and so was not within 30-day window for

perfecting an appeal to the BIA. Aristova argued that the BIA should accept the appeal as

timely because the notice of the IJ’s order had been mailed to her client, not to her. She

represented that she first learned of the IJ’s decision on or about December 10, 2003, and

that she responded within 28 days. On February 17, 2004, the BIA dismissed the appeal

for lack of jurisdiction. The BIA took the position that the record does not reflect any

entry of appearance by Aristova (or by anyone else on behalf of Jumaev) so that the IJ’s

mailing to Jumaev (as opposed to Aristova) was the correct procedure under the

regulations. For this reason, the BIA rejected Aristova’s arguments to consider an appeal

beyond the 30-day window to perfect an appeal.

       Aristova filed a timely motion to reconsider. With it, she attached her file copy of

her purported notice of appearance. The BIA denied the motion to reconsider on July 27,


       2
       Jumaev claims that he never received the letter due to a broken mailbox in the
Williamsburg section of Brooklyn where he lived.

                                               5
2004, stating that it had “reviewed the record of proceedings, and [did] not find any legal

arguments or aspects of the case that were overlooked. The file-stamped copy of the

motion to reopen [on file with the BIA] did not include a form EOIR-28 [notice of

appearance by counsel].”

       The BIA denied the motion for two other reasons. First, the BIA took the position

that, although Aristova discovered the IJ’s decision on December 10, 2003, she waited 28

days to file her appeal. The BIA held that this delay was “unreasonabl[e]”. The BIA

cites no authority for this position. Second, the BIA held that even if it accepted the

appeal as timely, it would have been rejected on the merits because the motion to reopen

before the IJ was filed more than 180 days after the April 23, 2003, in absentia order had

been entered.3

       Jumaev filed a timely petition for review. We have before us an appeal of the

February 17, 2004, BIA order and of the July 27, 2004, BIA order. We review only final

decisions of the agency; the orders of the IJ are not before us.

                        II. Jurisdiction and Standards of Review

       We have jurisdiction under 8 U.S.C. § 1252(a) (1952) (amended 1996).

       In ruling on questions of law, we review the BIA’s legal conclusions de novo. We

review factual determinations under a substantial evidence standard. See Borges, 402



       3
         Just as we do not reach the merits of the IJ’s orders, we do not opine on which
particular arguments brought by Jumaev have been preserved by his prior appeal to the
BIA and his motion seeking reconsideration by the BIA.

                                              6
F.3d at 404.

                                      III. Discussion

       This is a tale of she-says versus the BIA-says. Aristova has made representations

that she filed an EOIR-28 with her motion to reopen before the IJ. If she did file such a

form, or if the Immigration Court should have known of her representation though her

address on the motion to reopen, then the mailing to Jumaev of the IJ’s order, as opposed

to mailing it to Aristova, appears as a matter of law to be error. See 8 C.F.R. § 292.5(a)

(mandating that service is proper on represented party’s attorney, or the party “if

unrepresented”). On the other hand, the government suggests that Jumaev actually

received the IJ’s order, notwithstanding Aristova’s representations that her client did not

receive it. Although it is true, as the government argues, that Aristova’s affidavitless-

representations do not constitute evidence that her client did not receive the IJ’s order, we

also note that the government has put forward no legal authority suggesting that service

on Jumaev would be sufficient if he were, in fact, represented by counsel.

       Moreover, Aristova has come forward with more than her in-court representations.

She has produced her file copy. The government is not, however, impressed with

Aristova’s production of her EOIR-28. It notes that production from her files may simply

mean that her file copy was complete but her filing with the Immigration Court was

lacking. At oral argument we asked the government if it had been served with an EOIR-

28 by Aristova in conjunction with her motion. The government’s attorney did not know.

We also asked both parties if the Immigration Court’s docket reflected an entry indicating

                                              7
that a filing had been made by Aristova including an EOIR-28. Both parties indicated

that they were not aware of what the docket might reveal, nor did they know if the

Immigration Court had a docket at all which, if true, we find troubling.

       The government stands on the factual finding of the BIA that no EOIR-28 appears

in the administrative record and that where, as here, the BIA searched that record but

found no EOIR-28, that is sufficient evidence to support the BIA’s position that no such

filing was made. The government argues that that is enough to uphold the BIA’s decision

under the substantial evidence standard for factual findings of the BIA.

       We disagree. The BIA merely states, in conclusory fashion, that it has examined

Aristova’s motion to reopen “package” and “it did not include a Notice of Entry of

Appearance.” It does not consider the fact that Aristova’s name and address ere

contained on the motion to reopen and the accompanying cover letter.

       We do not expect a chain of custody demonstration of the contents of the

Immigration Court’s file. Nevertheless, in view of the fact that the index of the motion to

reopen lists an entry of appearance and Aristova has her file copy of the entry of

appearance, we conclude that without an explanation from the BIA of how it determined

that the “package” it examined was the complete package submitted by Aristova, we do

not find substantial evidence under the circumstances of this case that the entry of

appearance was not filed.

       Finding insufficient basis in the record to support the BIA’s conclusion that no

EOIR-28 was submitted by Aristova, we will grant the petition for review. On remand,

                                             8
the BIA should also consider the fact that the motion to reopen contained Aristova’s name

and address.

                                     IV. Conclusion

       For the reasons explained above, we will grant the petition for review of the

decision of the Board of Immigration Appeals and remand this case for reconsideration

consistent with this opinion.




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