Gerald Sswajje v. JOHN ASHCROFT, Attorney General

*The Honorab le William Stafford, Senior United States District Judge
for the Northern District of Florida, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0415P (6th Cir.)
File Name: 03a0415p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GERALD SSWAJJE,
Petitioner,
v.
JOHN ASHCROFT, Attorney
General,
Respondent.
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Nos. 02-3558;
03-3023
On Appeal from the Board of Immigration Appeals.
No. A74 738 139.
Argued: October 28, 2003
Decided and Filed: November 21, 2003
Before: CLAY and COOK, Circuit Judges; STAFFORD,
Senior District Judge.*
2 Sswajje v. Ashcroft Nos. 02-3558; 03-3023
_________________
COUNSEL
ARGUED: E. Dennis Muchnicki, Dublin, Ohio, for
Petitioner. Carol Federighi, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: E. Dennis Muchnicki, Dublin,
Ohio, for Petitioner. Carol Federighi, Allen W. Hausman,
Emily A. Radford, Anthony W. Norwood, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
_________________
OPINION
_________________
CLAY, Circuit Judge. In Case No. 02-3558, Gerald
Sswajje petitions this Court for review of the April 22, 2002,
order of the Board of Immigration Appeals (“BIA”)
dismissing as untimely his appeal of the March 7, 2001, order
of the immigration judge, which had denied his application
for asylum and withholding of deportation. In Case No. 03-
3023, Sswajje petitions this Court for review of the
December 27, 2002, order of the BIA denying his motion to
reconsider its April 22, 2002, order. Having had the benefit
of oral argument and having carefully considered the record
on appeal, the briefs of the parties, and the applicable law, we
are persuaded that the BIA committed no error of fact or law
and did not abuse its discretion when it dismissed Sswajje’s
appeal as untimely and later denied Sswajje’s motion for
reconsideration.
I.
Gerald Sswajje is a native and citizen of Uganda. On
March 7, 2001, an immigration judge conducted a merits
hearing on the government’s removability claim and on

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Nos. 02-3558; 03-3023 Sswajje v. Ashcroft 3
1All references to “A.R.” refer to the administrative record for Case
No. 02-3558. References to J.A. refer to the Joint Appendix for Case No.
03-3023.
Sswajje’s application for asylum and withholding of removal
or, alternatively, for voluntary departure. (A.R. 94.)1
Attorney Dennis Muchnicki, who represents Sswajje before
this Court, also represented Sswajje at the immigration
hearing. (A.R. 139.) On the day of the hearing, the
immigration judge sustained the charges of removability,
denied the asylum application as untimely and denied the
applications for withholding of removal and for voluntary
departure. (A.R. 123-24.)
After delivering his findings, the immigration judge
engaged in the following colloquy with Sswajje and his
counsel, Mr. Muchnicki:
JUDGE TO MR. MUCHNICKI
Q. You’re reserving his right to appeal?
A. Yes.
JUDGE TO MR. SSEWAJJE [sic]
Q. Now, sir, your lawyer is indicating he is
reserving your right to appeal my decision,
which has found that you have not met your
burden. And the Court denied all your
applications for relief. … Now, Mr. Muchnicki
is an experienced immigration attorney. He
knows that to effectuate a valid appeal, he has
to file your appeal no later than April 6th of this
year, at the Board of Immigration Appeals in
Falls Church, Virginia. That application has to
be completely filled out and all the appropriate
fees paid or waived. He also understands that if
he doesn’t get this to the Board by that date, it
will be deemed abandoned and the Court’s
decision will become final. That means you
4 Sswajje v. Ashcroft Nos. 02-3558; 03-3023
can’t wait until April 5th or 6th or even the 4th
to mail your appeal. It will get there too late.
(A.R. 260-61.)
Despite the clear admonition of the immigration judge to
file the appeal by April 6, 2001, Mr. Muchnicki did not mail
Sswajje’s notice of appeal to the BIA until April 7, 2001.
(A.R. 89.) The BIA received the notice of appeal on April 9,
2001. (A.R. 85.)
The INS moved for summary dismissal of Sswajje’s BIA
appeal on the ground of untimeliness. (A.R. 83.) Mr.
Muchnicki filed an opposition on Sswajje’s behalf, admitting
that he had made an error calculating the due date of the
appeal due to a distracting “mini-crisis” in his law practice.
(A.R. 44-52.) On April 22, 2002, the BIA issued an order
dismissing the appeal as untimely. (A.R. 2.)
On May 21, 2002, the same day Sswajje noticed his appeal
to this Court in Case No. 02-3558, Sswajje filed a motion
with the BIA for reconsideration of its April 22, 2002, order
dismissing his appeal of the immigration judge’s order. (J.A.
4-5.) In that motion, Sswajje argued that the late-filed appeal
of the immigration judge’s decision was excusable because
his attorney had miscalculated the due date and because the
merits of his immigration case allegedly showed he would
face certain persecution if he were returned to his native
Uganda. On December 27, 2002, the BIA denied the motion
to reconsider because Sswajje had “established no error of
law or fact” in the BIA’s April 22, 2002, order. Specifically,
since Sswajje’s reconsideration motion confirmed that his
appeal was untimely due to his counsel’s error, the BIA had
not committed a factual error in its April 22, 2002, order.
(J.A. 3.)

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Nos. 02-3558; 03-3023 Sswajje v. Ashcroft 5
II.
Federal Regulations in effect at the time of Sswajje’s
immigration proceedings in 2001 provide that the BIA has
appellate jurisdiction from decisions of immigration judges in
asylum cases, deportation cases and removal proceedings.
8 C.F.R. §§ 3.1(b), 3.3(a)(1), 3.38(a) (2001). An appeal is not
deemed properly filed unless it is received at the BIA within
the specified time for appeal. Id. § 3.3(a)(1). To effectuate a
timely appeal of the decision of an immigration judge, the
petitioner has to ensure that the BIA receives the notice of
appeal “within 30 calendar days after the stating of an
Immigration Judge’s oral decision….” Id. at §§ 3.3(a)(1),
3.38(b)-(c), 240.15. The decision of the immigration judge
becomes final upon expiration of the time to appeal if no
appeal has been taken. Id. at §§ 3.39, 240.14. The BIA has
the authority to summarily dismiss any appeal that is
untimely. Id. § 3.1(d)(2)(F).
It is undisputed that Sswajje filed his notice of appeal too
late. Since the immigration judge had rendered an oral
decision on March 7, 2001, Sswajje was required to have filed
his notice of appeal by no later than April 6, 2001. He did not
even mail the notice of appeal until April 7, 2001, and the
appeal was not filed by the BIA until April 9, 2001. Sswajje
nevertheless argues that the BIA should have entertained the
untimely appeal because of “extraordinary and unique
circumstances,” namely, the excusable neglect of his attorney
in missing the appeal deadline and the strong likelihood that
he will be persecuted if he is denied an appeal and returned to
Uganda.
Sswajje’s first argument is meritless in light of this Court’s
holding in Anssari-Gharachedaghy v. INS, 246 F.3d 512, 515
(6th Cir. 2000) (assuming arguendo that the BIA has
discretion to entertain late-filed appeals in unique and
extraordinary circumstances, BIA did not abuse its discretion
in dismissing untimely appeals; order of immigration judge
had notified petitioners that they had to file their appeals with
6 Sswajje v. Ashcroft Nos. 02-3558; 03-3023
the BIA by November 12, 1998, but counsel mailed the
appeals on November 9, 1998 and they did not reach the BIA
until November 13, 1998). The immigration judge explicitly
told Sswajje in the presence of his attorney that the BIA had
to receive the appeal no later than April 6, 2001. Thus, it
makes no sense for Sswajje to argue that his counsel, so
distracted by other matters in his office, made an error in
calculating the appeal deadline. There were no calculations
to be done. To find unique and extraordinary circumstances
on these facts, this Court would have to eviscerate its holding
in Anssari-Gharachedaghy.
Sswajje also cannot rely on the alleged merits of his asylum
application to show unique and extraordinary circumstances.
This approach effectively would require the Court to review
the decision of the immigration judge. This Court has no
jurisdiction to review the immigration judge’s decision,
however, because Sswajje failed to exhaust all available
administrative remedies by filing a timely appeal to the BIA.
See Perkovic v. INS, 33 F.3d 615, 619 (6th Cir. 1994)
(“Insofar as a petitioner fails to exhaust his available
administrative remedies, … a federal court is without
jurisdiction to consider his petition for review.”); Harchenko
v. INS, 22 FED App. 540, 543 (6th Cir. 2001) (court lacked
jurisdiction over certain issues; petitioner had failed to
exhaust administrative remedies as to those issues because
brief filed with the BIA on those issued had been untimely);
Da Cruz v. INS, 4 F.3d 721, 722-23 (9th Cir. 1993) (“We
have no jurisdiction to review the Immigration Judge’s
decision because the INS did not timely appeal to the BIA.”)
(citation omitted). Accordingly, Sswajje’s petition for review
of the BIA’s order in Case No. 02-3558 is not well-taken.
III.
BIA regulations authorize a motion for reconsideration of
a BIA decision and provide that such a motion “shall state
the reasons for the motion by specifying the errors of fact or
law in the prior Board decision and shall be supported by

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Nos. 02-3558; 03-3023 Sswajje v. Ashcroft 7
pertinent authority.” 8 C.F.R. § 1003.2(b)(1). The BIA’s
decision to deny a motion for reconsideration is reviewed for
abuse of discretion. Dawood-Haio v. INS, 800 F.2d 90, 95
(6th Cir. 1986.) The BIA abuses its discretion when it acts
arbitrarily, irrationally or contrary to law. Babai v. INS, 985
F.2d 252, 255 (6th Cir. 1993).
The BIA did not abuse its discretion in denying Sswajje’s
motion for reconsideration because the motion alerted the
BIA to no legal or factual arguments that had not already been
presented to the BIA in response to the INS’s motion for
summary dismissal of the untimely appeal of the immigration
judge’s order. Perhaps recognizing this fact, Sswajje’s
attorney, Mr. Muchnicki, now argues that his failure to file a
timely appeal amounted to ineffective assistance of counsel,
which should have excused his client’s noncompliance with
the appeal deadline. Sswajje cannot avail himself of this
argument, however, because he did not raise it in the BIA
proceedings. There, he argued only that the merits of his
immigration case justified an exception to the appeal deadline
and that Sswajje should not be punished for his counsel’s
“simple” mistake. He never argued that his counsel’s mistake
rose to the level of a deprivation of due process. This Court
therefore lacks jurisdiction to entertain Sswajje’s ineffective
assistance of counsel argument because he failed to exhaust
his administrative remedies. Cf. Harchenko, 22 FED App. at
543 (holding that court lacks jurisdiction over issues not
raised before the BIA; petitioner had failed to exhaust
administrative remedies as to those issues because brief filed
with the BIA on those issued had been untimely); Akinwunmi
v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (“… [B]ecause
the BIA provides a mechanism for hearing an ineffective
assistance claim, an alien’s failure to raise the claim to the
BIA deprives this court of jurisdiction to review it.”).
The proper avenue for raising ineffective assistance of
counsel is by filing a motion to reopen proceedings with the
BIA. Matter of Lozada, 19 I & N. Dec. 637, 639 (1988). In
support of that motion, the alien is required (1) to file an
8 Sswajje v. Ashcroft Nos. 02-3558; 03-3023
affidavit stating his agreement with former counsel with
respect to the actions to be taken on appeal and what counsel
did nor did not represent to the alien in this regard; (2) to
show that former counsel was informed of the allegations and
was given an opportunity to respond; and (3) to state whether
a complaint has been filed with appropriate disciplinary
authorities regarding the allegedly ineffective representation.
Id.; see also Hamid v. Ashcroft, 336 F.3d 465, 469 (6th Cir.
2003) (“Sound policy reasons support compliance with the
Lozada requirements.”). Sswajje arguably can bypass the
first two Lozada requirements (because Mr. Muchnicki
himself has argued that his representation was ineffective),
but there is no evidence in the record as to whether
disciplinary authorities have been notified of Mr. Muchnicki’s
alleged misconduct. The BIA has explained that this
requirement “not only serves to deter meritless claims of
ineffective representation but also highlights the standard
which should be expected of attorneys who represent persons
in immigration proceedings, the outcome of which may, and
often does, have enormous significance for the person.” Id.
at 639-40. Since Sswajje failed to follow this process for
consideration of ineffective assistance claims, this Court lacks
jurisdiction to determine the merits of this argument.
IV.
For the foregoing reasons, Gerald Sswajje’s petitions for
review of the BIA orders in Case Nos. 02-3558 and 03-3023
are hereby DENIED.

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