Eftin Laboski v. John D. Ashcroft

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3130
E FTIN L ABOSKI ,
Petitioner,
v.
J OHN D. A SHCROFT ,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A77-753-810
____________
S UBMITTED S EPTEMBER 10, 2004—D ECIDED O CTOBER 21, 2004
____________
Before F LAUM , Chief Judge, and P OSNER and R OVNER ,
Circuit Judges.
F LAUM , Chief Judge. Petitioner Eftin Laboski, a citizen
of Macedonia, petitions this Court for review of an order of
the Board of Immigration Appeals (“BIA”), denying his mo-
tion for reconsideration of the dismissal of his administra-
tive appeal. The BIA dismissed the appeal on the ground
that it was untimely. The government now seeks dismissal
of Laboski’s petition for lack of subject matter jurisdiction,
or in the alternative, summary affirmance of the BIA’s de-
cision. For the reasons stated herein, we hold that we have
jurisdiction to review the BIA’s order, and that the BIA did
not abuse its discretion in determining that Laboski’s ap-

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2 No. 03-3130
1 As of February 2003, the INS ceased to exist. The Bureau
of Immigration and Customs Enforcement in the new U.S.
Department of Homeland Security now performs the immi-
gration enforcement function that was previously the re-
sponsibility of the INS.
peal of the Immigration Judge’s (“IJ’s”) denial of his motion
to reopen his case was untimely. Accordingly, we affirm the
BIA’s denial of Laboski’s motion to reconsider.
I. B ACKGROUND
Laboski was admitted to the United States on or about
February 18, 2001, as a non-immigrant visitor, and was au-
thorized to remain in the United States until May 17, 2001.
However, Laboski overstayed his visa and violated its terms
by being employed for wages or other compensation without
the authorization of the Immigration and Naturalization
Service (“INS”). 1 The INS commenced removal proceedings.
On September 10, 2001, the IJ granted Laboski’s motion
for a change of venue from El Paso, Texas to Chicago,
Illinois. On October 4, 2001, the INS mailed Laboski notice
of a hearing scheduled for February 7, 2002. Laboski ap-
peared at that hearing represented by counsel, where he ad-
mitted the allegations against him and conceded remova-
bility. Although he was scheduled to appear at a subsequent
hearing on September 12, 2002, Laboski did not show up on
that date. The IJ ordered Laboski removed from the United
States in absentia, stating: “The respondent, by failing to
appear at the scheduled hearing, has not established enti-
tlement to any relief from removal and has waived the right
to designate a country of removal under the provisions of
Section 241(b) of the [Immigration and Nationality] Act.”
(A.R. at 41.)
On November 18, 2002, Laboski filed a motion to reopen
the case and rescind the deportation order, claiming that he

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No. 03-3130 3
could not confirm his scheduled appearance because of his
inability to communicate with the court and with his coun-
sel. The IJ denied Laboski’s motion to reopen on December
17, 2002, finding that his loss of contact or miscommuni-
cation with his attorney did not constitute exceptional cir-
cumstances excusing Laboski’s failure to appear at the
hearing. The IJ issued a written decision dated December 17,
2002, which was sent to Laboski’s attorney with a “trans-
mittal letter” of the same date.
On January 17, 2003, Laboski filed a Notice of Appeal
with the BIA, seeking administrative review of the IJ’s de-
nial of his motion to reopen. The BIA dismissed the appeal
as untimely on March 28, 2003. The BIA found that the IJ’s
decision was mailed on December 17, 2002, and therefore,
the Notice of Appeal was due on or before January 16, 2003,
thirty days from the mailing of the IJ’s decision. On April
25, 2003, Laboski moved the BIA to reconsider, asserting
that the IJ’s decision dated December 17, 2002 had not been
mailed to his attorney until December 18, 2002, making
Laboski’s notice of appeal timely. The BIA denied Laboski’s
motion to reconsider on July 15, 2003. Based on its review
of the record, the Board concluded that the December 17,
2002 order was mailed out on that date, and therefore the
Notice of Appeal was due January 16, 2003. Laboski timely
petitioned this Court for review of the denial of the recon-
sideration motion.
II. D ISCUSSION
A. Subject Matter Jurisdiction
The government argues that we should dismiss Laboski’s
petition for lack of subject matter jurisdiction. Specifically,
it contends that, by failing to appeal the IJ’s initial order of
removal, Laboski has not exhausted his administrative
remedies.

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4 No. 03-3130
We disagree. To preserve the right to judicial review, an
alien must raise and exhaust his administrative remedies
as to each claim or ground for relief. Capric v. Ashcroft, 355
F.3d 1075, 1087 (7th Cir. 2004). Although Laboski did not
appeal the initial order of removal, he sought review of the
IJ’s denial of his motion to rescind the deportation order and
reopen the case. The BIA first dismissed Laboski’s ad-
ministrative appeal as untimely on March 28, 2003. Laboski
then moved the BIA to reconsider, arguing that his admin-
istrative appeal was in fact timely. However, the Board
denied his reconsideration motion on July 15, 2003. Because
the BIA had ample opportunity to consider Laboski’s argu-
ment concerning the timeliness of his appeal, he did not fail
to exhaust his administrative remedies on this issue, and it
is properly before this Court. Moreover, the government
concedes that Laboski timely petitioned this Court to review
the Board’s denial of his motion to reconsider. See 8 U.S.C.
§ 1252(b)(1), (2); cf. Awad v. Ashcroft, 328 F.3d 336, 340 (7th
Cir. 2003) (stating that because the appellant “failed to
raise the stop time issue in her motion to reconsider, she
disregarded the statutory requirement that she exhaust all
administrative remedies before seeking this Court’s review
of the INS decision”); Bosede v. Ashcroft, 309 F.3d 441, 447
(7th Cir. 2002) (stating that before the appellant is entitled
to judicial review, she must file a motion to reopen or a
petition to the INS director to have the agency decide the
issue).
B. Review of BIA Decision
We review the BIA’s denial of Laboski’s motion for re-
consideration for abuse of discretion. Awad, 328 F.3d at
341. Our review is limited to “whether the discretion was
actually exercised and whether it was exercised in an
arbitrary or capricious manner.” Nwaokolo v. INS, 314 F.3d
303, 307 (7th Cir. 2002).

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No. 03-3130 5
2 The letter itself had several options for the clerk of court
to mark, one of which states: “Attached is a copy of the
decision of the Immigration Judge. This decision is final
unless an appeal is filed with the Board of Immigration
Appeals within 30 calendar days of the date of the mailing
of this written decision.” (A.R. at 32.) This paragraph was
not checked in Laboski’s letter; the paragraph actually
checked states: “Other: Judge Cuevas’ decision dated Dec.
17, 2002 denying motion to re-open.” (Id.)
Laboski argues that the BIA’s denial of his motion for
reconsideration constitutes an abuse of discretion because
the decision contains no rational explanation. It is undisputed,
however, that Laboski had thirty days from the mailing of
the IJ’s decision to file a Notice of Appeal with the BIA. See
8 C.F.R. § 1003.38(b) (“The Notice of Appeal to the Board of
Immigration Appeals of Decision of Immigration Judge
(Form EOIR-26) shall be filed directly with the Board of
Immigration Appeals within 30 calendar days after the stat-
ing of an Immigration Judge’s oral decision or the mailing
of an Immigration Judge’s written decision.”); 8 C.F.R.
§ 1003.3(a)(1) (“An appeal is not properly filed unless it is
received at the Board . . . within the time specified in the
governing sections of this chapter.”).
Laboski contends that the BIA’s conclusion that the IJ’s
December 17, 2002 decision was mailed on that date is not
supported by substantial evidence in the record. Laboski
disputes that the document accompanying the decision is a
“transmittal letter,” arguing that the INS form letter did
not have the proper box checked. 2 Laboski has not argued,
however, that he did not receive notice of his right to appeal,
nor does he cite any authority to show that the transmittal
letter in the record was inadequate.
The BIA did not abuse its discretion in refusing to re-
consider its denial of Laboski’s appeal. The BIA’s finding
that Laboski failed to file the appeal within the proper time

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6 No. 03-3130
period is supported by the record. The IJ’s decision was dated
December 17, 2002. A letter referring to that decision and
identifying Laboski’s case number was signed by the clerk
of court and sent to Laboski’s attorney on the same date.
While Laboski contends that the IJ’s decision was actually
mailed the following day, he points to no evidence to sup-
port this contention. Laboski did not submit any affidavits
regarding the date of mailing or receipt of the IJ decision,
nor did he submit a postmark showing a December 18 mail-
ing date. Courts have held in similar circumstances that a
BIA decision is presumed to be mailed on the date of the
transmittal letter, absent evidence to the contrary. See
Haroutunian v. INS, 87 F.3d 374, 375 (9th Cir. 1996) (“[T]he
only proof we have as to when the BIA’s order was mailed
is the cover letter accompanying the order. The cover letter
was dated June 17, 1994, and we presume that the final
order of deportation was mailed on that date.”); Karimian-
Kaklaki v. INS, 997 F.2d 108, 111 (5th Cir. 1993) (“Because
it adequately appears from the record that the BIA decision
was properly mailed to petitioners’ counsel on November 18,
1992, and because there is nothing before us to indicate
otherwise, . . . the date of the BIA decision is controlling.”).
In In re Ali, 21 I. & N. Dec. 1058 (BIA 1997), the case on
which Laboski relies, the BIA did not find petitioner’s mo-
tion to reconsider untimely where the record contained no
transmittal letter indicating proof of service of the IJ deci-
sion. Id. at 1058 n.1. Because the record in this case contains
evidence of a transmittal letter dated December 17, 2002,
the BIA was correct to conclude that Laboski’s administra-
tive appeal was due on January 16, 2003.
Laboski also contends that the BIA abused its discretion
in denying Laboski’s motion to reconsider because the IJ’s
decision failed to address whether, in light of his inability
to understand English, Laboski received proper notice of
the September 12 hearing and the consequences of failing
to appear at this hearing. We decline to review the merits

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No. 03-3130 7
of the IJ’s decision, however, because they are not properly
before us. Laboski’s petition only seeks review of the BIA’s
July 15, 2003 decision denying his motion to reconsider. See
Awe v. Ashcroft, 324 F.3d 509, 514 (7th Cir. 2003) (“Since
our appellate review is limited to the BIA’s final orders of
removal, we decline to look beyond the BIA’s stated, proce-
dural reasons for dismissing Awe’s appeal and will not un-
dertake a review of the merits of Awe’s case as decided by
the IJ.”).
Finally, to the extent that Laboski claims that he was
deprived of effective assistance of counsel during his depor-
tation proceedings, he has waived this claim by raising it for
the first time on appeal. See Mojsilovic v. INS, 156 F.3d
743, 748 (7th Cir. 1998).
III. C ONCLUSION
For the foregoing reasons, the decision of the BIA is
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-21-04

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