Tony Burton v. U .S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 30, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-16118
Non-Argument Calendar
________________________
Agency No. A072-843-726
TONY BURTON,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 30, 2010)
Before BLACK, PRYOR and FAY, Circuit Judges.
PER CURIAM:

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Tony Burton petitions for review of the Board of Immigration Appeals’
(BIA) final order dismissing his appeal of the Immigration Judge’s (IJ) order
denying his motion to reopen his in absentia deportation order. Although Burton
filed his motion more than 12 years after the expiration of the 180-day time period,
he contends the ineffective assistance of his counsel amounts to an exceptional
circumstance that should excuse his failure to appear at his 1995 deportation
hearing. Alternatively, Burton argues the time period should be tolled based on the
ineffective assistance of counsel. After review, we deny Burton’s petition.1
A motion to reopen a removal order entered in absentia may be rescinded
only “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.” See 8 U.S.C. § 1252b(c)(3)(A) (1994). The statute2
defines “exceptional circumstances” as circumstances beyond the control of the
alien, “such as serious illness of the alien or death of an immediate relative of the
“We review the BIA’s denial of a motion to reopen for an abuse of discretion.” Abdi v.1
U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 1999). “[R]eview 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. (internal quotations omitted).
Burton does not argue he did not receive proper notice of the hearing in accordance2
with 8 U.S.C. § 1252b(c)(3)(B) (1994), and has thus abandoned the issue. See Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (“When an appellant fails to offer argument
on an issue, that issue is abandoned.”).
2

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alien, but not including less compelling circumstances.” 8 U.S.C. § 1252b(f)(2)
(1994).
Burton has not alleged a cognizable “exceptional circumstance.”
Specifically, Burton claimed he did not attend his 1995 deportation hearing
because his attorney waited until the day before to notify him of the hearing, and
he was unable to obtain last-minute transportation. Inability to find transportation
is not similar to or as compelling as the statutory requirement of serious illness or
death. 8 U.S.C. § 1252b(f)(2)(1994). Thus, Burton has not demonstrated his
entitlement to reopen his proceedings on the basis of exceptional circumstances.
Even assuming, arguendo, equitable tolling was available based on
ineffective assistance of counsel, the BIA did not abuse its discretion by finding it
unwarranted in this case. Burton failed to act with the requisite due diligence,3
waiting more than 12 years after the 180-day period expired before filing his
motion to reopen. See Irwin v. Dep’t of Veterans Affairs, 111 S. Ct. 453, 457–48
(1990). Moreover, despite his knowledge of the hearing, Burton never inquired as
to his immigration status prior to filing his motion to reopen, and only filed his
motion to reopen after he was detained by immigration officials.
PETITION DENIED.
As Burton concedes, our decisions in Abdi, 430 F.3d at 1150, and Anin v. Reno, 1883
F.3d 1273 (11th Cir. 1999), do not allow in absentia deportation orders to be equitably tolled on
account of ineffective assistance of counsel.
3

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