Piotr Cozac v. Attorney General of the United States

*Honorable A. Wallace Tashima, Senior Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1070
PIOTR COZAC,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
(No. A97-965-595)
Submitted pursuant to Third Circuit LAR 34.1(a)
March 24, 2008
Before: McKEE, RENDELL and TASHIMA *, Circuit Judges
(Opinion Filed: April 22, 2008)
OPINION

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McKEE, Circuit Judge.
Piotr Cozac petitions for review of the decision of the Board of Immigration
Appeals upholding the Immigration Judge’s denial of his motion to reopen removal
proceedings and rescind an in absentia order of removal. For the reasons that follow, we
will deny the petition for review.
I.
Inasmuch as we write primarily for the parties who are familiar with this case, we
need not set forth the factual or procedural history except insofar as it may be helpful to
our brief discussion. We review the BIA’s decision under an abuse of discretion standard,
and must uphold the decision unless it is arbitrary, capricious, or contrary to law. Sevoin
v. Ashcroft, 290 F.3d 166, 173 (3d Cir. 2002).
Because the BIA and IJ ruled on the merits of Cozac’s motion to reopen as if it
were timely, we will assume arguendo, that Cozac’s motion to reopen was timely filed
because the 180-day filing deadline was equitably tolled.
A motion to reopen removal proceedings in which a removal order is issued in
absentia will be granted if the petitioner can show that exceptional circumstances
excused his failure to appear. 8 C.F.R. § 1003.23(b)(4)(ii) (2008). “Exceptional
circumstances” are defined in 8 U.S.C. § 1229a(e)(1) as those circumstances beyond the
control of the alien, such as being in federal custody, serious illness, or death of an
immediate relative. Ineffective assistance of counsel has been held to qualify as an

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“exceptional circumstance”which excuses an alien’s absence and allows reopening of
removal proceedings in which an in absentia order of removal issues. See Borges v.
Gonzales, 402 F.3d 398, 408 (3d Cir. 2005). Cozac argues that the actions of his attorney
rise to the level of ineffective assistance of counsel and excuse his absence from his
removal hearing.
However, Cozac has failed to establish that his absence was the result of his
attorney’s actions, or that his attorney’s conduct was tantamount to ineffective assistance
of counsel qualifying as the exceptional circumstance required to excuse his absence.
Although we have held that ineffective assistance of counsel can constitute an
exceptional circumstance under 8 U.S.C. § 1229a(e)(1), we have only done so where
counsel made misrepresentations to the alien about the need to attend the removal
hearing, the time or place of the removal hearing, or the consequences of not attending
the hearing. See Borges, 402 F.3d at 408 (reasoning that attorney’s telling alien that if he
went to court without an attorney he would be deported would constitute ineffective
assistance rising to the level of an exception circumstance). While Cozac’s counsel
surely failed in his responsibility to Cozac, that does not excuse Cozac’s own failure to
attend the hearing.
Cozac mistakenly points to Mahmood v. Gonzales, 427 F.3d 248 (3d Cir. 2005),
for the proposition the ineffective assistance not rising to the level of fraud can constitute
an exceptional circumstance. However, there, we only considered whether the attorney’s

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actions, which did not include fraud, constituted a basis for equitably tolling the filing
deadline for a motion to reopen. 427 F.3d at 250. The alien’s failure to appear at
removal proceedings was not an issue. Cozac has not alleged any fraudulent
misrepresentations by his attorney, and he was fully aware of the time and place of the
removal proceeding.
Cozac’s affidavit suggests that he did not attend because he feared deportation, not
because of any actions by his attorney. That is clearly not an “exceptional circumstance.”
Thus, we conclude that the BIA did not abuse its discretion in upholding the IJ’s denial
of the motion to reopen.
II.
Accordingly, for the reasons set forth above, we will deny his petition for review.

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