Gao v. US Atty General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JAN 19, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-11349
Non-Argument Calendar
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Agency No. A073-208-264
JIN CAN GAO,
lllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllll lRespondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 19, 2011)
Before EDMONDSON, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:

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Jin Can Gao, a Chinese national proceeding through counsel, petitions for
review of the Board of Immigration Appeals’ final order denying his second
motion to reopen the 1994 exclusion proceedings held in absentia against him.
Gao contends that the ineffective assistance of his counsel is an exceptional
circumstance that justifies reopening his proceedings. He also contends that he
did not receive actual notice of the hearing date and time.
I.
We review the BIA’s denial of a motion to reopen only for an abuse of
discretion. Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). “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.” Id. (quotation marks omitted). “Motions to reopen are disfavored” in
proceedings resulting in deportation “where, as a general matter, every delay
works to the advantage of the deportable alien who wishes merely to remain in the
United States.” Id. (quotation marks omitted). The alien thus bears a heavy
burden in a motion to reopen and must present evidence satisfying the BIA that, if
the proceedings were reopened, the new evidence likely would change the result in
the case. Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006).
I.
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Gao argues that Melanie Kuchar, his initial counsel, was ineffective because
she entered her appearance and filed a request for parole on his behalf in 1994
without his consent, and she provided a false address to the Immigration and
Naturalization Service. Gao asserts that Kuchar was working with the smugglers
responsible for bringing him into the United States. Gao also asserts that Kuchar’s
ineffectiveness caused him to miss the exclusion hearing in 1994 and resulted in
the Immigration Judge’s issuance of an in absentia exclusion order against him.
Under the law applicable to this case, an in absentia order could only be1
rescinded:
Generally “[a] motion to reopen exclusion hearings on the basis that the Immigration1
Judge improperly entered an order of exclusion in absentia must be supported by evidence that
the alien had reasonable cause for his failure to appear.” 8 C.F.R. § 1003.23(b)(4)(iii)(B); see
also Matter of Nafi, 19 I. & N. Dec. 430, 432 (BIA 1987). Gao, however, has failed to preserve
the argument that the BIA should have applied that reasonable cause standard. Gao presented his
motion to reopen under the exceptional circumstances standard and the lack of notice standards
provided in the former Immigration and Nationality Act § 242B. INA § 242B(c)(3), 8 U.S.C. §
1252b(c)(3) (1994) (repealed 1996); see also 8 C.F.R. § 1003.23(b)(4)(iii)(A). The BIA decided
Gao’s motion under those standards. In his brief to this Court, Gao does not challenge the BIA’s
application of the exceptional circumstances standard or the lack of notice standard to his motion
to reopen. Gao instead argues that the BIA incorrectly applied those standards to the facts of his
case. Gao has thus abandoned any argument that the BIA should have applied a different
standard and we will address Gao’s petition under the exceptional circumstances and lack of
notice standards of former INA § 242B. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d
1324, 1330 (11th Cir. 2004) (“[T]he law is by now well settled in this Circuit that a legal claim
or argument that has not been briefed before the court is deemed abandoned and its merits will
not be addressed.”).
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(A) 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 . . . , or
(B) upon a motion to reopen filed at any time if the alien
demonstrates that the alien did not receive notice in accordance with
[this statute] . . . .
INA § 242B(c)(3), 8 U.S.C. § 1252b(c)(3) (1994) (repealed 1996). The statute
defined “exceptional circumstances” as exceptional circumstances beyond the
control of the alien, such as serious illness of the alien or death of an immediate
relative of the alien. INA § 242B(f), 8 U.S.C. § 1252b(f) (1994). A claim of
ineffective assistance of counsel may amount to exceptional circumstances.
Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir. 2008).
The 180-day filing deadline provided in § 1252b(c)(3)(A), however, is
“jurisdictional and mandatory.” Anin v. Reno, 188 F.3d 1273, 1278 (11th Cir.
1999) (finding no exception to the statutory 180-day deadline, even where the
petitioner alleges ineffective assistance of counsel). Gao filed his motion to
reopen based on the exceptional circumstance of ineffective assistance of counsel
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nearly fifteen years after the hearing was held. That is well after the 180-day
statutory filing deadline. Gao’s argument that Kuchar’s ineffective assistance of
counsel was an exceptional circumstance excusing his failure to appear at the 1994
hearing is thus time-barred under § 1252b(c)(3)(A).
II.
As already discussed, Gao bears the heavy burden of demonstrating in his
motion to reopen that he did not receive notice according to § 1252b. INA §
242B(c)(3), 8 U.S.C. § 1252b(c)(3) (1994); Ali, 443 F.3d at 813. Under the law
applicable to this case, the INS had to provide the alien with written notice of the
time and place at which the proceedings would be held and the consequences for
failing to appear at those proceedings. INA § 242B(a)(2)(A), 8 U.S.C.
§ 1252b(a)(2)(A) (1994). The notice had to be provided either through personal
service, or by certified mail if personal service was not practicable. Id. Written
notice, not actual notice, was sufficient if the notice was sent to the most recent
address provided by the alien. Id. § 242B(c)(1), 8 U.S.C. § 1252b(c)(1) (1994);
see Dominiguez v. U.S. Att’y Gen., 284 F.3d 1258, 1259–60 (11th Cir. 2002)
(holding that, under current statutory notice requirements, notice of a hearing sent
to the most recent address on file constitutes sufficient notice). Procedural due
process in the immigration context also required notice with a reasonable
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opportunity to be heard. Anin, 188 F.3d at 1278. But procedural due process does
not require actual notice and is satisfied when the method of notice is “accorded in
a manner reasonably calculated to ensure that notice reaches the alien.” Anin, 188
F.3d at 1278 (citation and internal quotations omitted).
In this case, the INS sent notice of the 1994 hearing via certified mail to
Gao’s most recent address—the only address for him that was ever provided to the
INS. That notice contained information relating to the date, time, and place of the
hearing. It also warned Gao of the consequences of his failure to appear at his
hearing. The notice was sufficient and was sent in a manner reasonably calculated
to ensure that it reached Gao. See Anin, 188 F.3d at 1278. Additionally, Gao
received actual notice that he was in immigration proceedings on receipt of the
charging document when he was initially detained, and he even attended an initial
hearing while in detention before he was paroled. Accordingly, the BIA did not
abuse its discretion in denying Gao’s motion to reopen by finding that he failed to
meet his heavy burden of showing that he received insufficient notice of the 1994
hearing that resulted in an exclusion order against him.
PETITION DISMISSED IN PART AND DENIED IN PART.
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