Cornel Viorel Scorteanu v. Immigration and Naturalization Service

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0277P (6th Cir.)
File Name: 03a0277p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CORNEL VIOREL SCORTEANU,
Petitioner,
v.
IMMIGRATION AND
NATURALIZATION SERVICE,
Respondent.
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No. 01-4271
On Appeal from the Board of Immigration Appeals.
No. A72 171 730.
Argued: May 6, 2003
Decided and Filed: August 7, 2003
Before: KRUPANSKY, SILER, and GILMAN, Circuit
Judges.
_________________
COUNSEL
ARGUED: Michael E. Piston, Troy, Michigan, for
Petitioner. Hillel R. Smith, UNITED STATES
D E P A R T M E N T OF JUSTICE, OFFICE OF
IMMIGRATION LITIGATION, Washington, D.C., for
Respondent. ON BRIEF: Michael E. Piston, Sufen Li, Troy,
2 Scorteanu v. INS No. 01-4271
1The amendments made by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Division C of Pub.L.No. 104-208,
110 Stat. 3009-546 (“IIRIRA”), are not applicable to the instant case. As
such, references herein are made to the Immigration and Nationality Act
as it existed prior to the enactment of the IIRIRA. The IIRIRA repealed
the section under consideration in this case, but provided transitional rules
that apply to cases, such as the instant case, where the deportation
proceedings commenced prior to April 1, 1996. The transitional rules
provided that the INA app lies as codified prior to the passage of the
IIRIRA. See IIRIRA §§ 306 (c)(1), 309(a).
Michigan, for Petitioner. James A. Hunolt, Emily A.
Radford, UNITED STATES DEPARTMENT OF JUSTICE,
OFFICE OF IMMIGRATION LITIGATION, Washington,
D.C., for Respondent.
_________________
OPINION
_________________
KRUPANSKY, Circuit Judge. This appeal arises from a
decision by the Board of Immigration Appeals (“BIA” or
“Board”) to dismiss a motion by petitioner, Cornel Viorel
Scorteanu (“Scorteanu”), to reopen deportation proceedings
pursuant to section 242B(c)(3) of the Immigration and
Nationality Act (“INA” or “Act”), 8 U.S.C. § 1252b(c)(3),
alleging ineffective assistance of counsel.1 For the reasons
discussed below, the Board’s order of dismissal is affirmed.
I. BACKGROUND
Petitioner Scorteanu is a 31-year-old native and citizen of
Romania, of Hungarian ethnicity, who entered the United
States at Chicago, Illinois on June 20, 1994 as a B-2 visitor
for pleasure. His visa authorized him to remain in the United
States until December 19, 1994. On September 15, 1994,
petitioner applied for asylum. The Chicago Asylum Office
referred his application to an Immigration Judge (“IJ”).
Petitioner was served with an Order to Show Cause (“OSC”),

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No. 01-4271 Scorteanu v. INS 3
dated September 6, 1995, charging deportability as an
overstay under Section 241 (A)(1)(c)(i) of the INA. During
the pendency of his merits hearing, petitioner married a
United States citizen.
Petitioner retained Attorney Ronald A. Muresan
(“Muresan”) to represent him in his asylum case. On
April 11, 1996, Scorteanu appeared with Muresan before an
IJ for a Master Calendar hearing where petitioner renewed his
asylum application and the IJ scheduled an Individual Merits
Hearing for November 19, 1996. On November 8, 1996,
Muresan informed petitioner by telephone that the
immigration court had rescheduled the merits hearing and
would send Muresan a written notice of a new date. Attorney
Muresan received a letter, dated November 8, 1996, by
certified mail from the immigration court, advising that
Scorteanu’s deportation hearing was rescheduled for
March 26, 1997. Muresan never advised petitioner of the new
hearing date, nor did he file the requested notice of
petitioner’s change of address with the immigration court. In
the months that followed, Scorteanu contacted Muresan
several times regarding notice of a new hearing date and, each
time, Muresan informed petitioner that he would notify
petitioner when he received the new hearing date.
Unbeknownst to Scorteanu, during this period, Muresan
was suspended and eventually disbarred from the practice of
law. Muresan did not advise petitioner of this development
nor inform the immigration court of his suspension. As a
consequence of Muresan’s representation, petitioner did not
receive a copy of the hearing notice and neither Scorteanu nor
Muresan attended the March 26, 1997 merits hearing where,
consequently, petitioner was ordered deported in absentia to
Romania. During 1997 and 1998 Muresan fraudulently
advised Scorteanu that his asylum case was still pending
before the immigration court. In early 1999, Scorteanu
learned from members of the Romanian community in
Michigan that Muresan had been disbarred.
4 Scorteanu v. INS No. 01-4271
2In early 1996, Scorteanu had married Doina Zieminska and retained
attorney Mosabi Hamed to file an I-130 Immigrant Petition for Alien
Relative. At no time did Hamed enter an appearance on b ehalf of the
petitioner in the instant deportation proceedings. While Scorteanu has
averred that he informed Hamed of his pending asylum application and
that Hamed had agreed to inquire into the status of petitioner’s asylum
case, any statem ents ma de by Hamed with respect to the pendency of the
deportation proceedings are irrelevant to the petitioner’s claims of
exceptional circumstances and lack of notice where Hamed was not
petitioner’s counsel of record.
3The BIA accepted this time fram e in its November 9, 2001 dismissal
of petitioner’s ap peal.
Scorteanu then turned to attorney Mosabi Hamed.
Previously, after his 1996 marriage to a United States citizen,
petitioner had retained Hamed to handle his I-130 Immigrant
Petition for Alien Relative. Throughout 1999, Scorteanu kept
in contact with Hamed regarding his asylum petition even
though Hamed was not petitioner’s attorney of record for
those proceedings. Hamed continued to advise Scorteanu that
he had inquired into petitioner’s asylum case and assured him
that it was still pending.2
On January 18, 2000, Scorteanu retained new counsel. As
a result of his new counsel’s inquiry with the Immigration
and Naturalization Service (“INS”), petitioner learned of the
in absentia Order of Deportation of March 26, 1997 in late
March of 2000.3 Nevertheless, Scorteanu waited until
February 12, 2001 to file a Motion to Reopen Deportation
Proceedings with the immigration court. For that proceeding
Scorteanu submitted his own affidavit and an affidavit from
former attorney Muresan detailing his ineffective assistance
of counsel.
In denying Scorteanu’s Motion to Reopen, the IJ
determined in her March 15, 2001 Order that petitioner had
exceeded the statutory time limit of 180 days for filing a
motion to reopen based on exceptional circumstances
pursuant to INA § 242B(c)(3)(A). See Matter of A-A-, Int.

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No. 01-4271 Scorteanu v. INS 5
Dec. 3357 (BIA 1998). The IJ further observed that attorney
Muresan’s acknowledged receipt of notice for the March 26,
1997 deportation hearing met the statutory requirements of
the act. See INA § 242B(a)(2). Finally, the court addressed,
sua sponte, the effect of Muresan’s fraud, noting: “Even
assuming arguendo that the petitioner had some basis to
assert a claim for tolling of the 180 days, more than that
period elapsed between actual notice of the entry of the
Court’s order and the filing of the instant motion.”
Scorteanu petitioned for review of the IJ’s denial before the
BIA on April 13, 2001. The BIA returned a dismissal of
petitioner’s appeal on November 9, 2001. The Board noted
that petitioner’s motion was filed well beyond the 180 day
statutory time limit pursuant to § 242B(c)(3)(A) of the Act.
The Board also addressed the IJ’s sua sponte consideration of
the possibility of equitable tolling of the 180 day time limit,
observing that such equitable relief was unavailable when a
party, such as the petitioner, failed to exercise due diligence
on his own behalf, filing the recision motion almost a year
after actual notice. Scorteanu then perfected this timely
appeal.
Jurisdiction over this petition is conferred upon this Court
by section 106 of the Immigration and Nationality Act,
8 U.S.C. § 1105a as it existed immediately prior to April 1,
1997, the effective date of the Illegal Immigration Reform
and Responsibility Act of 1996 (“IIRIRA”).
II. ANALY SIS
The Court reviews the denial of a motion to reopen
deportation proceedings for abuse of discretion. See INS v.
Doherty, 502 U.S. 314, 323 (1992); Ashki v. INS, 233 F.3d
913, 921 (6th Cir. 2000); see also INS v. Abudu, 485 U.S. 94,
110 (1988).
Pursuant to section 242B(c)(3) of the Act, the IJ and the
BIA are permitted as a matter of discretion to rescind an in
6 Scorteanu v. INS No. 01-4271
absentia order of deportation under limited circumstances.
See Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996). An
in absentia order of deportation may be rescinded upon a
motion to reopen filed at any time if the alien demonstrates
that he or she did not receive notice in accordance with the
requirements in section 242B(a)(2) of the Act. 8 U.S.C.
§ 1252B(c)(3)(B) (1994). Alternatively, an in absentia order
may be rescinded upon a motion to reopen filed within 180
days of the date of the deportation order “if the alien
demonstrates that the failure to appear was because of
exceptional circumstances as defined in subsection (f)(2) of
this section.” § 242B(c)(3)(A). Thus, in seeking recision of
an in absentia deportation order, the burden rests on the
movant to demonstrate either improper notice or exceptional
circumstances. See Giday v. INS, 113 F.3d 230, 233 (D.C.
Cir. 1997).
Scorteanu has, first, averred that section 242B(c)(3)(B) of
the Act permitted him to file a motion to reopen the
in absentia order of deportation at any time because he failed
to receive notice of the hearing. Petitioner has specifically
contended that the language of section 242B(c)(3)(B) requires
notice of a scheduled deportation hearing to the alien while
making notice to the alien’s attorney insufficient, because
section 242B(c)(3)(B) refers to notice “to the alien,” rather
than to the alien or the alien’s counsel. A brief examination
of the applicable statutory language reveals the inadequacy of
petitioner’s contention.
Section 242B(c)(3)(B) of the Act directs that an in absentia,
order may be rescinded only--
...
(B) upon a motion to reopen filed at any time if the alien
demonstrates that the alien did not receive notice in
accordance with subsection (a)(2) or the alien
demonstrates that the alien was in Federal or State
custody and did not appear through no fault of the alien.

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No. 01-4271 Scorteanu v. INS 7
8 U.S.C. § 1252b(c)(3)(B) (1994). The referenced subsection
242B(a)(2) of the Act provides as follows:
In deportation proceedings under section 242--
(A) written notice 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), in the order to show
cause or otherwise,
...
(B) in the case of any change or postponement in the
time and place of such proceedings, written notice 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) & (B) (1994).
Petitioner has admitted that attorney Muresan, his then
counsel of record, received proper certified notification of the
March 26, 1997 hearing. Because § 242B(c)(3)(B) provides
for reopening of in absentia proceedings only as a “remedy
for improper service,” relief under this section is unavailable
to Scorteanu. See Dobrota v. INS, 311 F.3d 1206, 1211 (9th
Cir. 2002) (maintaining that § 242B makes clear that “[a]n
alien does not have to actually receive notice of a deportation
hearing in order for the requirements of due process to be
satisfied,” as the INS may satisfy notice requirements by
mailing notice of the hearing to petitioner’s attorney’s address
of record); Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir.
2000) (concluding that notice was adequate where served
only upon petitioners’ attorney); Arrieta v. INS, 117 F.3d 429,
431 (9th Cir. 1997) (finding that notice sent by certified mail
to last known address rendered service presumptively
effective); Wijeratne v. INS, 961 F.2d 1344, 1347 (7th Cir.
1992) (concluding that an IJ may send notice of hearing to
alien’s representative to effectively constitute notice to alien);
8 Scorteanu v. INS No. 01-4271
Men Keng Chang v. Jiugni, 669 F.2d 275, 277-78 (5th Cir.
1982) (explaining that service upon appellant’s counsel was
effective to constitute notice to appellant).
Additionally, Scorteanu’s contention that the Board abused
its discretion by not directly addressing his interpretation of
section 242B(c)(3)(B) is without merit. Relief under section
242B(c)(3)(B) was not available to the petitioner whose then
attorney of record had, admittedly, received proper notice.
Moreover, the Board need not “list every possible positive
and negative factor in its decision.” Rodriguez-Rivera v. INS,
993 F.2d 169, 170-71 (8th Cir. 1993). As the Fifth Circuit
has observed, the Board “has no duty to write an exegesis on
every contention. What is required is merely that it consider
the issues raised, and announce its decision in terms sufficient
to enable a reviewing court to perceive that it has heard and
thought and not merely reacted.” Osuchukwu v. INS, 744
F.2d 1136, 1142-43 (5th Cir. 1984). See Torres v. INS, No.
93-3617, 1994 WL 284540 (6th Cir. June 27, 1994)
(unpublished disposition) (concluding that it was sufficient to
prove that the Board fully considered the petitioner’s claims
when the Board explicitly recited that it had reviewed the
record and the IJ’s decision and adopted the reasoning of the
IJ); Najib v. INS, No. 93-3139, 1994 WL 95935 (6th Cir.
March 23, 1994) (unpublished disposition) (noting that the
Board adequately set forth its reasons for denying relief by
examining the IJ’s application of the facts to the law,
addressing petitioner’s arguments on appeal and then reaching
its own conclusion). Upon review, the BIA’s opinion and the
record have provided this court with sufficient basis upon
which to review the BIA’s decision.
Petitioner has, further, asserted that exceptional
circumstances warrant reopening the deportation proceedings
in light of his claim not to have received notice due to
ineffective assistance of counsel. Scorteanu has specifically
averred that a motion to reopen an in absentia deportation
proceeding may be pursued at any time where ineffective
assistance of counsel is shown and, as such, the BIA’s

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No. 01-4271 Scorteanu v. INS 9
dismissal was a violation of due process. Petitioner’s claim
has little merit.
This Circuit has recognized that Fifth Amendment
guarantees of due process extend to aliens in deportation
proceedings, entitling them to a full and fair hearing.
Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001).
The alien must prove that ineffective assistance of counsel
resulted in prejudice or denial of fundamental fairness in
order to prove a denial of due process. Dokic v. INS, No. 92-
3592, 1993 WL 265166, *3 (6th Cir. July 15,1993)
(unpublished) (citing Aguilera-Enriquez v. INS, 516 F.2d 565,
569 (6th Cir. 1975)). Due process requires notice that is
“reasonably calculated, under the circumstances, to apprise
interested parties of the pendency of the action and afford
them an opportunity to present their objections.” Al-
Rawahneh v. INS, No. 00-4447, 2002 WL 1021866 (6th Cir.
May 17, 2002) (unpublished opinion) (finding no due process
violation where aliens failed to have their mail forwarded to
new address and thus failed to receive notice of OSC
hearing).
Unlike the petitioner in Al-Rawahneh, Scorteanu had
provided a forwarding address to his attorney, but relied upon
him to notify the INS of that new address and to notify
Scorteanu of his March 26, 1997 hearing date. Muresan’s
subsequent misfeasance and fraud amounted to the type of
“exceptional circumstances” contemplated by
§§ 242B(c)(3)(A) & (f)(2) of the Act, as material incidents
beyond Scorteanu’s control. Section 242B(c)(3)(A) of the
Act, directs that an in absentia,
order may be rescinded ...
(A) upon a motion to reopen filed within 180 days after
the date of the order of removal if the alien demonstrates
that the failure to appear was because of exceptional
circumstances (as defined in subsection (f)(2))
10 Scorteanu v. INS No. 01-4271
8 U.S.C. § 1252b(c)(3)(A) (1994). Section 242B(f)(2),
provides:
The term ‘exceptional circumstances’ refers to
exceptional circumstances (such as serious illness of the
alien or death of an immediate relative of the alien, but
not including less compelling circumstances) beyond the
control of the alien.
8 U.S.C. § 1252(f)(2) (1994). See also In re Assaad, 23 I. &
N. Dec. 553, 558 (BIA Feb. 12, 2003); Matter of Grijalva-
Barrera, 21 I & N Dec. 472, 474 (BIA 1996) (finding
rescission of an in absentia deportation order under
§ 242B(c)(3)(A), when petitioner filed to reopen within 180
days of the deportation order due to exceptional
circumstances).
Both the immigration court and the Board noted that the
180 day time period prescribed in § 242B(c)(3)(A) could be
subject to equitable tolling due to Muresan’s ineffective
assistance of counsel and, thus, suspended from running until
Scorteanu had received actual notice. See Iturribarria v. INS,
321 F.3d 889, 897-98 (9th Cir. 2003) (holding that equitable
tolling is available where petitioner’s attorney engaged in
fraudulent or deceptive acts); see also Rodriguez-Lariz v. INS,
282 F.3d 1218, 1224 (9th Cir. 2002) (recognizing equitable
tolling of deadlines and numerical limits on motions to reopen
or reconsider during periods when a petitioner is prevented
from filing because of deception, fraud, or error, as long as
the petitioner acts with due diligence in discovering the
deception, fraud, or error).
Nevertheless, this court need not decide, in the instant case,
whether the statute is subject to equitable tolling because,
even if this court were to so concede, Scorteanu has failed to

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No. 01-4271 Scorteanu v. INS 11
4The issue of equitable tolling due to exceptional circumstances has
split the circuits. Comp are A nin v. Reno, 188 F.3d 127 3, 12 78 (11th Cir.
1999) (holding that § 242B(c)(3)(A) sets forth a “mandatory and
jurisdictional” time bar) with Lopez v. INS, 184 F.3d 10 97, 1100 (9th Cir.
1999) (holding that § 242B(c)(3 )(A)’s time bar is not jurisdictional and
thus subject to eq uitable tolling). See also Damon W . Taaffe, Comm ent:
Tolling the Deadline for Appealing in Absentia Deportation Orders Due
to Ineffective Assistance of Counsel, 68 U .CH I. L. REV. 1065 (2001)
(proposing a distinction between attorney misfeasance and nonfeasance,
and allowing misfeasant (or actively misleading) ineffective assistance
to constitute an “exceptional circum stance” sufficient to warrant equitably
tolling the 180 day appeal dead line).
prove entitlement to equitable relief.4 In Jobe v. INS, 238
F.3d 96, 100(1st Cir. 2001) (en banc), the First Circuit
reviewed the petition of an alien who had failed to make a
prima facie showing of entitlement to equitable tolling of
§ 242B(c)(3)(A)’s time limit. Evidence of Jobe’s insufficient
diligence disposed the court to dismiss the petition without
deciding whether the equitable tolling doctrine would apply
to the statutory provision. Id. Similarly, in the instant case,
this court need not address whether Muresan’s ineffective
assistance of counsel warranted equitable tolling because,
even after having received actual notice and having retained
different counsel, Scorteanu exceeded the statutory time limit
by waiting until February 12, 2001 to file his motion to
reopen.
Petitioner has averred that this lapse of time did not reflect
an absence of due diligence, but rather resulted from the
difficulty in locating former counsel Muresan and obtaining
his affidavit pursuant to the requirements of Matter of
Lozada, 19 I.&N. Dec. 637, 639, 1988 WL 235454 (BIA
1988), aff'd, 857 F.2d 10 (1st Cir.1988). However,
Scorteanu’s contention is not persuasive as it represents a
misapplication of the procedural requirements detailed in
Lozada. There, the BIA stated that when an alien has averred
ineffective assistance of counsel, the motion should be
supported by 1) an affidavit setting forth “in detail the
agreement that was entered into with former counsel with
12 Scorteanu v. INS No. 01-4271
respect to the actions to be taken,” as well as any
representations made by counsel to the alien; 2) proof that the
movant has informed former counsel of the allegations in
writing, as well as any response received; and 3) a statement
detailing “whether a complaint has been filed with
appropriate disciplinary authorities regarding such
representation, and if not, why not.” Id.; see also Saakian v.
INS, 252 F.3d 21, 25 (1st Cir. 2001); Lopez v. INS, 184 F.3d
1097, 1100 (9th Cir. 1999); Huicochea-Gomez v. INS, 237
F.3d at 699.
Scorteanu needed only to notify former attorney Muresan
of the charge of ineffective assistance of counsel. For his
part, Muresan was not required to submit an affidavit in
support of Scorteanu’s charge. In short, Scorteanu has failed
to prove, as he must, that the lapse of time between March
2000 and February of the following year was fostered by an
exceptional circumstance beyond his control. Consequently,
this court affirms the BIA’s dismissal of Scorteanu’s petition
to reopen proceedings.

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