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No. 06-1603

 

In the Supreme Court of the United States

ROSALINE KENNEDY, PETITIONER

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
DONALD E. KEENER
FRANCIS W. FRASER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly held that the Board of Immigration Appeals (BIA or Board) did not abuse its discretion in denying petitioner's motion to re consider the denial of petitioner's second untimely mo tion to reopen her removal proceedings based on allega tions of ineffective assistance of counsel.

In the Supreme Court of the United States

No. 06-1603

ROSALINE KENNEDY, PETITIONER

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-5a) is not published in the Federal Reporter, but is reprin ted in 227 Fed. Appx. 786. The decisions of the Board of Immigration Appeals (Pet. App. 8a-9a) and the immigra tion judge (Pet. App. 10a-14a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on April 4, 2007. The petition for a writ of certiorari was filed on June 1, 2007. The jurisdiction of this Court is in voked under 28 U.S.C. 1254(1).

STATEMENT

1. a. The Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., provides that removal proceedings brought under 8 U.S.C. 1229a (2000 & Supp. V 2005) are initiated by a written Notice to Appear served in person on the alien, or, if personal service is not practical, "through service by mail to the alien or to the alien's counsel of record." 8 U.S.C. 1229(a)(1). The Notice to Appear must identify, among other things, the nature of the proceedings, the conduct alleged to be unlawful, and the charges against the alien. 8 U.S.C. 1229(a)(1)(A), (C), and (D). The Notice must also inform the alien of her obligations to provide the Attorney General with an address at which she may be contacted and to "immedi ately" notify the Attorney General of any changes, and state that not doing so could result in failure to receive further notices and an order of removal being entered in absentia. 8 U.S.C. 1229(a)(1)(F)(i)-(iii), 1229a(b)(5).

b. Section 1229a sets forth procedures for the con duct of removal proceedings. In situations where an alien fails to appear, Section 1229a(b)(5)(A) provides that the alien "shall be ordered removed in absentia if the [Immigration and Naturalization] Service estab lishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable." 8 U.S.C. 1229a(b)(5)(A).1 "The written notice * * * shall be considered sufficient," this provision continues, "if provided to the most recent ad dress provided under section 1229(a)(1)(F) of this title." Ibid.

Section 1229a(b)(5)(C) sets forth limited circum stances in which a removal order that was entered in absentia may be rescinded. "Such an order," it declares, "may be rescinded only-

(i) 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 subsec tion (e)(1) of this section),[2] or

(ii) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of sec tion 1229(a) of this title or the alien demonstrates that the alien was in Federal or State custody and the failure to appear was through no fault of the alien.

8 U.S.C. 1229a(b)(5)(C).

2. Petitioner is a native and citizen of Brazil who overstayed a nonimmigrant visitor visa. Administrative Record (A.R.) 121. On October 3, 2002, petitioner filed an application to change her status based on her mar riage to an American citizen. A.R. 183-186. On the application, petitioner gave her address as: "7101 Springer Road; Wilmington, NC 28410." A.R. 183. That application was later withdrawn after petitioner's hus band announced that he did not wish to proceed, and the marriage was later annulled. A.R. 165.

3.a. On December 16, 2003, the Department of Homeland Security (DHS) issued a Notice to Appear alleging that petitioner was removable under 8 U.S.C. 1227(a)(1)(B), and was subject to removal as a result.

A.R. 122, 189; see note 1, supra. The Notice to Appear was sent via regular mail to the last address petitioner had provided to DHS: the Springer Road residence listed on petitioner's October 2002 application for ad justment of status. A.R. 183, 189.

Unbeknownst to DHS, petitioner had changed her mailing address. At some point between her October 2002 application and the December 16, 2003 Notice to Appear, petitioner obtained a post office box in Wilmington, North Carolina and directed the Postal Service to forward mail from the Springer Road resi dence to that box. A.R. 165. Although petitioner ac knowledges that she did not inform DHS of her new ad dress, she has conceded that she personally received a copy of the Notice to Appear in "December 2003." Pet. 4; see A.R. 165.

The Notice to Appear contained all of the informa tion required by 8 U.S.C. 1229(a)(1). It informed peti tioner that her hearing would be held at a time set by the Office of the Immigration Judge, and that notice of the hearing "will be mailed to the address provided by [petitioner]." A.R. 189; see A.R. 190 ("Notices of hear ing will be mailed to this address."). The Notice to Ap pear also stated that petitioner was required to "notify the Immigration Court immediately * * * whenever you change your address." Ibid. Finally, the Notice stated that if petitioner failed to attend the hearing at the "date and time later directed by the Immigration Court, a removal order may be made by the immigration judge in your absence." Ibid. Despite these instructions, peti tioner never notified DHS or the Immigration Court that she had changed her address. Pet. 5.

On February 12, 2004, the Immigration Court mailed a Notice of Hearing in Removal Proceedings to peti tioner at the Springer Road address. A.R. 187-188. The hearing was scheduled for March 16, 2004. Ibid. Peti tioner did not appear at the hearing, and, on March 16, 2004, an immigration judge (IJ) entered an in absentia order directing that petitioner be removed to Brazil. A.R. 182.

b. On July 12, 2005-483 days after entry of the or der of removal-petitioner filed a motion with the Immi gration Court to reopen her removal proceedings. A.R. 165-168. In that initial motion, petitioner asserted that she had not learned about her March 16, 2004 removal hearing or the IJ's in absentia removal order until her attorney inquired as to whether a removal hearing had been scheduled. A.R. 166-167. Although the motion stated that petitioner had submitted a second applica tion for adjustment of status to United States Customs and Immigration Service (USCIS) in DHS in April 2004 that contained her new address, A.R. 166, it did not ac knowledge petitioner's failure to update her address with the Immigration Court in the Department of Jus tice either before or after she received the December 16, 2003 Notice to Appear or at any time before the removal hearing. Nor did the motion address petitioner's failure to seek reopening within the 180-day period specified in 8 U.S.C. 1229a(b)(5)(C)(i), or assert that petitioner had failed to "receive notice in accordance with paragraph (1) or (2) of [8 U.S.C] 1229(a)," see 8 U.S.C. 1229a(b)(5)(C)(ii).

On July 22, 2005, the IJ denied petitioner's motion. A.R. 124-126. Petitioner's receipt of the Notice to Ap pear, the IJ reasoned, had given petitioner notice that she was subject to removal proceedings and had clearly informed petitioner of both her obligation to ensure that the Immigration Court had her current address and the possible consequences of failing to do so. A.R. 125. The IJ also determined that petitioner satisfied none of the bases set forth in 8 U.S.C. 1229a(b)(5)(C) for rescinding an in absentia removal order. A.R. 125-126. Petitioner did not appeal the IJ's decision to the BIA.

c. On August 31, 2005, petitioner, now represented by new counsel, filed a second motion to reopen her re moval proceedings. A.R. 144-149. In the second motion, petitioner claimed that her failure to attend her removal hearing was the result of "exceptional circumstances," which she identified as the "ineffective assistance" of her former attorney in failing to file the proper change of address forms, instruct petitioner to do so, or contact the Immigration Court for a status update regarding petitioner's removal hearing. A.R. 144-147.

Although the BIA's decision in In re Lozada, 19 I. & N. Dec. 637, 639, review denied, 857 F.2d 10 (1st Cir. 1988), ordinarily requires, as a condition for relying on asserted ineffective assistance of counsel, "that disci plinary authorities be notified of breaches of profes sional conduct," petitioner conceded that she had not done so, see A.R. 147. Instead, the motion appended an affidavit of the former counsel, Kenneth Hatcher. A.R. 152-154. The affidavit described the services counsel performed for petitioner in connection with submitting an application for adjustment of status with USCIS in DHS, A.R. 152-153, but did not state that Hatcher had been retained by petitioner to represent her in the sepa rate removal proceedings before an IJ in the Depart ment of Justice. Also, although counsel stated that he "did not recognize" that there was a problem with peti tioner's receiving mail or that mail was being forwarded by a Postal Service forwarding order, and that he "failed to advise" petitioner to notify the government of a change of address, A.R. 152, he did not identify any cir cumstances that should have led him to recognize any problem with petitioner's receipt of mail or to reiterate the notice petitioner receive in the Notice to Appear that she should inform the Immigration Court of any change of address. Finally, petitioner did not acknowl edge in her motion that 8 U.S.C. 1229a(b)(5)(C)(i) de clares that "exceptional circumstances" rescissions are available only where the "motion to reopen [is] filed within 180 days after the date of the order of removal," and she did not assert that the 180-day period is subject to equitable tolling.

On September 22, 2005, the IJ denied petitioner's second motion to reopen on the grounds that petitioner had already filed one such motion, and that petitioner had failed to comply with the requirements of Lozada, supra. A.R. 119. The IJ also reiterated that the Notice to Appear had given petitioner notice of the need to up date her address with the Immigration Court. Ibid. Petitioner again did not appeal the IJ's denial of her motion to the BIA.

d. On October 24, 2005, petitioner filed with the IJ a motion to reconsider the denial of her second motion to reopen. A.R. 71-76. In that motion, petitioner at tached a bar complaint filed against her previous attor ney. A.R. 72, 79. In her motion to reconsider, petitioner acknowledged that the Notice to Appear had informed her of her obligation to keep her address up to date, but stated that she had relied upon the advice of her "expe rienced immigration law attorney" that she should "wait for a hearing notice." A.R. 72-73. In support of her mo tion to reconsider, petitioner and her new husband stated that they had retained Hatcher to represent them in seeking adjustment of status before USCIS; they did not, however, state that the retainer extended to repre senting petitioner before the Immigration Court, see A.R. 82-83, 85, and Hatcher did not enter a notice of appearance on petitioner's behalf with the Immigration Court, A.R. 73. Once again, petitioner neither acknowl edged the 180-day deadline, nor argued that the period could be tolled.

On October 26, 2005, the IJ denied petitioner's mo tion for reconsideration. Pet. App. 10a-14a. The IJ first identified a procedural defect with petitioner's motion: Although "[a] motion to reconsider shall * * * specify[] the errors of fact or law in the Immigration Judge's prior decision," petitioner's motion had not "cite[d] any errors of fact or law in the prior two decisions." Id. at 11a-12a; see 8 U.S.C. 1229a(c)(6)(C) (Supp. V 2005). In addition, although petitioner had not raised the issue, the IJ also concluded "that equitable tolling is not appli cable," because petitioner had "acknowledged service of" a document that clearly advised her of her duty to keep her address up to date and because the affidavit filed by petitioner's former attorney "does not state that he in formed [petitioner] not to advise the Government or the Court of any change of address." Pet. App. 12a-13a.

e. Petitioner appealed this ruling to the BIA. A.R. 7-20, 29-46. On that appeal, petitioner acknowledged for the first time that both of her motions to reopen had failed to comply with the 180-day time limit. A.R. 23. And, as pertinent here, petitioner also asserted, in one sentence, that the IJ "erred in holding that equitable tolling did not apply in this case." A.R. 58.3

The BIA dismissed petitioner's appeal. Pet. App. 8a- 9a. The BIA stated that the notice of hearing "was rea sonably calculated to reach [petitioner]," because it had been sent "to the same post office box where the Notice to Appear was successfully received by [petitioner] the month before the hearing notice was mailed," and be cause petitioner had "concede[d] in her brief that she was continuing to use the same * * * post office address for her mail at the time when the hearing notice was sent." Ibid.4 In addition, the BIA declined to consider petitioner's "exceptional circumstances claim because not one of her three motions was filed within the 180-day statutory period." Id. at 9a (citing Anin v. Reno, 188 F.3d 1273, 1278 (11th Cir. 1999)).

4. A unanimous panel of the Court of Appeals for the Eleventh Circuit denied a petition for review in an unpublished per curiam opinion. Pet. App. 1a-5a. Citing its earlier decisions in Anin, supra, and Abdi v. United States Attorney General, 430 F.3d 1148 (11th Cir. 2005), see Pet. App. 3a-4a, the court of appeals concluded that the 180-day period set forth in 8 U.S.C. 1229a(b)(5)(C)(i)

cannot be tolled "based upon alleged ineffectiveness of counsel," Pet. App. 4a. Accordingly, the court of appeals held that "the BIA did not abuse its discretion in declin ing to consider [petitioner's] exceptional circumstances claim because she did not file a motion to reopen within the 180-day filing period." Id. at 5a.

ARGUMENT

Petitioner contends (Pet. 7-17) that the Eleventh Circuit's refusal to require the BIA to apply equitable tolling in the circumstances of this case was both errone ous and conflicts with the decisions of other courts of appeals. Further review is not warranted, because the Eleventh Circuit's unpublished decision is correct, no other court of appeals would hold that the BIA abused its discretion in refusing to apply equitable tolling on these facts, and petitioner would be unable to obtain relief even if equitable tolling were sometimes available.

1. The BIA did not abuse its discretion in affirming the IJ's denial of petitioner's motion to reconsider its earlier denial of petitioner's second untimely motion to reopen her removal proceedings. Whether a given stat utory time limitation is subject to equitable tolling is ultimately a matter of statutory construction. See, e.g., United States v. Brockamp, 519 U.S. 347, 349-354 (1997). In addition, this Court's decisions confirm that the BIA's reasonable constructions of the immigration statutes that it administers are entitled to Chevron def erence, including in situations where those interpreta tions are announced in the course of adjudicating indi vidual cases. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-425 (1999).

In two decisions issued in 1998, the BIA concluded that the 180-day deadline for motions to reopen proceedings based on "exceptional circumstances" contained in former 8 U.S.C 1252b(c)(3)(A) (1994)-a provision whose language was in all material respects identical to the one at issue in this case5-contained no "exception" for situ ations "where the failure to timely file a motion to re open is due to ineffective assistance of counsel." In re Lei, 22 I. & N. Dec. 113 , 116 (B.I.A. 1998); see In re A- A-, 22 I. & N. Dec. 140, 143 (B.I.A. 1998). The statutory language, the Board stressed, clearly stated that deport ation orders could be rescinded "only" in the specifically enumerated circumstances, and contained "no excep tions to [the 180-day] time bar." Lei, 22 I. & N. Dec. at 116; A-A-, 22 I. & N. Dec. at 143. The BIA also ex plained that its interpretation was "consistent with the overall statutory scheme," because the broader provi sion of which the relevant language was a part had been "enacted to provide stricter and more comprehensive deportation procedures, particularly for in absentia hearings, to ensure that proceedings are brought to a conclusion with meaningful consequences." Lei, 22 I. & N. Dec. at 116; A-A-, 22 I. & N. Dec. at 144.

The BIA's conclusion that allegations of ineffective assistance of counsel are insufficient to prevent the run ning of the 180-day time period for filing motions to re open based on exceptional circumstances is entirely rea sonable and thus entitled to deference by the courts. Section 1229a(b)(5)(C) states that an in absentia re moval order may be rescinded "only" in three specified circumstances-where the alien's failure to attend the removal hearing was due to "exceptional circum stances," where the alien "did not receive notice in ac cordance with [8 U.S.C. 1229(a)(1) or (2)]", or where imprisonment prevented the alien from attending the hearing. 8 U.S.C. 1229a(b)(5)(C)(i) and (ii). Of the en umerated grounds, only one-the provision under which petitioner seeks relief-contains a time limitation. That "explicit listing" of provisions as to which time limits do and do not apply demonstrates "that Congress did not intend [the agency or] courts to read other unmen tioned, open-ended 'equitable' exceptions into the stat ute that it wrote." Brockcamp, 519 U.S. at 352.

In addition, "the nature of the underlying subject matter" (Brockcamp, 519 U.S. at 352) reinforces the conclusion that Congress did not intend to permit equi table tolling based on claims of ineffective assistance of counsel. As this Court has explained, motions to reopen removal proceedings are "especially" disfavored because "every delay works to the advantage of the deportable alien who wishes merely to remain in the United States." INS v. Doherty, 502 U.S. 314, 323 (1992). In addition, permitting aliens to avoid the 180-day time bar by claiming ineffective assistance of counsel would "waste the time and efforts of immigration judges called upon to preside at [the] hearings" that would presum ably be necessary whenever an alien could make a "prima facie" ineffectiveness claim. INS v. Abudu, 485 U.S. 94, 108 (1988) (internal quotation marks and cita tions omitted).

2. Petitioner nonetheless asserts (Pet. 7) that this Court should grant review because of what she asserts is a "true split" involving whether equitable tolling is available in situations where an alien claims that her failure to comply with the 180-day time limitation was due to the"ineffectiveness" of the alien's privately re tained attorney.6 Petitioner is mistaken; in fact, it is entirely likely that no court of appeals would have held that the BIA abused its discretion in declining to apply equitable tolling on the facts presented here.

a. Two of the published decisions that petitioner cites merely assumed without deciding that equitable tolling is sometimes available under 8 U.S.C. 1229a(b)(5)(C)(i) before denying relief on other grounds. The First Circuit did not "recogniz[e] equitable tolling" (Pet. 10), in Jobe v. INS, 238 F.3d 96 (2001) (en banc). Rather, the court "dimiss[ed the alien's] petition without deciding whether the equitable tolling doctrine may ap ply to this statutory provision." Id. at 100. The same is true of Scorteanu v. INS, 339 F.3d 407 (6th Cir. 2003) (Pet. 10), where the court stated that it "need not decide * * * whether the statute is subject to equitable tolling because, even if this court were to so concede, Scorteanu has failed to prove entitlement to equitable relief." Id. at 413; see Hernandez-Moran v. Gonzales, 408 F.3d 496, 499-500 (8th Cir. 2005) (similar).7

b. Although the Third and Ninth Circuits have con cluded that equitable tolling is sometimes available un der Section 1229a(b)(5)(C)(i), both courts have carefully limited their holdings to situations in which the alien's failure to file a timely and otherwise proper motion was the result of fraud. In Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005) (Pet. 10), an alien alleged that his failure to attend his removal hearing had been due to ineffec tive assistance of counsel, and that his failure to file a timely motion to reopen his removal proceedings on that basis had been due to a paralegal's false statement that such a document had, in fact, been filed. See 402 F.3d at 402. Taking care to note that the alien's argument was not "that ineffective assistance of counsel can or should constitute an 'exception' to the 180-day time limit," id. at 405, the Third Circuit held that the period may be equitably tolled where an alien has been the victim of "fraud," which it defined as a situation in which the alien actually and reasonably relied on "false representations of a material fact made with knowledge of [their] falsity and with intent to deceive the other party." Id. at 407 (brackets in original; internal quotation marks and cita tion omitted).

The Ninth Circuit's decisions are similar. In Lopez v. INS, 184 F.3d 1097 (1999), that court held that the 180-day limitations period contained in the predecessor statute that the BIA construed in Lei and A-A- (see pp. 11-12 & note 5, supra), was subject to equitable tolling "where the alien's late petition [to reopen was] the re sult of the deceptive actions by a notary posing as an attorney." Lopez, 184 F.3d at 1100; see id. at 1098 ("We conclude that the statutory time limit for reopening is tolled by the fraudulent representations made by Lopez's former 'counsel.'" (emphasis added)). In Varela v. INS, 204 F.3d 1237 (2000) (Pet. 14-15), the Ninth Cir cuit extended Lopez's reasoning to "[a] federal regula tion [that] places time and numerical limits on motions to reopen deportation proceedings" in situations where an alien attended the initial removal hearing. Id. at 1239 (citing 8 C.F.R. 3.2(c)(2) (2000)). Once again, however, the Ninth Circuit stressed that equitable toll ing was available because the alien had been "defrauded by an individual purporting to provide legal representa tion." Id. at 1240 (emphasis added). Rodriguez-Lariz v. INS, 282 F.3d 1218 (9th Cir. 2002) (Pet. 10), con strued the same regulation that had been at issue in Varela. 282 F.3d at 1223-1224. There, the Ninth Circuit concluded that equitable tolling was available because a non-lawyer to whom the aliens had given money to coordinate their removal proceedings had "missed the deadline for filing the application for suspension of de portation[,] * * * lied [to the aliens] about having done so," and later "compounded his mistakes and misrepre sentations by advising the filing of a motion for recon sideration that prejudiced [the alien's] claims. Id. at 1224-1225 (emphasis added). In such circumstances, the court of appeals concluded, the advisor's actions "con stitute the type of fraudulent representation that trig gers equitable tolling under Varela and Lopez." Id. at 1225.

Here, petitioner neither alleges fraud, nor asserts facts that could establish the kind of fraudulent conduct deemed sufficient to warrant equitable tolling in Borges, Lopez, Varela, and Rodriguez-Lariz. Petitioner's ques tions presented describe the issue before this Court as

whether the 180-day period may be tolled based "inef fective assistance of counsel." See Pet. 3 (same); Pet. 17 (characterizing counsel's actions as "deficient"). Nor does the petition for a writ of certiorari allege anything that could fairly be characterized as "fraud" by peti tioner's former attorney. Far from advising petitioner not to attend her removal hearing or misleading her into believing that a timely motion to reopen had been filed, see Borges, 402 F.3d at 401-402, petitioner asserts that the attorney failed expressly to reiterate an obliga tion-that is, to keep her mailing address up to date-of which petitioner was already on notice, and did not on his own initiative "call the Immigration Court informa tion line to find out if [petitioner] already had a hearing scheduled." Pet 5.8 Even taking these allegations at face value, silence and inaction fall far short of the sort of affirmative "false representations of a material fact made with knowledge of [their] falsity and with intent to deceive the other party" (Borges, 402 F.3d at 407) that would be necessary to support a finding of fraud. Accordingly, neither Third nor Ninth Circuit precedent would support the conclusion that the BIA abused its discretion in failing to apply equitable tolling in this case.

c. Petitioner is correct that the Second, Seventh, and Tenth Circuits have stated that ineffective assistance of counsel may, at least in certain circumstances, justify equitable tolling of various statutory or regula tory limitations on motions to reopen removal proceed ings. Two of the decisions she cites, however, do not even involve the statutory 180-day deadline for moving to reopen in absentia removal orders. All three of the decisions, moreover, predate this Court's recent clarifi cation, in the habeas corpus context, that "[a]ttorney miscalculation is simply not sufficient to warrant equita ble tolling, particularly in [a] context where [litigants] have no constitutional right to counsel." Lawrence v. Florida, 127 S. Ct. 1079, 1085 (2007). As explained above (see note 6, supra), an alien has no constitutional right to have counsel furnished by the government in removal proceedings, and therefore, under Coleman v. Thompson, 501 U.S. 722 (1991), has no constitutionally based claim of ineffective assistance of counsel. Accord ingly, to the extent that any of these decisions suggests that another court of appeals may have granted relief on the facts presented here, such a holding cannot survive Lawrence.

At any rate, it is highly unlikely that petitioner would have been able to obtain relief in any other circuit even before Lawrence. The relevant holding of Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000) (Pet. 10), was that ineffective assistance of immigration counsel could sometimes warrant tolling a 90-day limitations period set forth in a 1996 Department of Justice regulation that is not at issue in this case. See 232 F.3d at 129- 130.9 In so holding, the Second Circuit relied on the text of the statute directing the Department of Justice to place limitations on the number of and time for filing motions to reopen and reconsider, "the Department of Justice's own interpretation of its rulemaking mandate from Congress, and the BIA's view of the rules that were promulgated." Id. at 130. In addition, moreover, the Iavorski court held that equitable tolling was un available as a matter of law in that case because the alien had failed to exercise "due diligence" during the period that he sought to have tolled. Id. at 134.10 The Seventh and Tenth Circuits have likewise held that eq uitable tolling is unavailable absent a showing of due diligence by the alien. See Pervaiz v. Gonzales, 405 F.3d 488, 491 (7th Cir. 2005) (Pet. 10); Riley v. INS, 310 F.3d 1253, 1254-1255, 1258 (10th Cir. 2002) (involving alien who had attended initial removal hearing) (Pet. 10).

As the IJ found in this case (Pet. App. 12a-14a), peti tioner would not be eligible for equitable tolling even were allegations of ineffective assistance of counsel sometimes sufficient to authorize it. Petitioner ac knowledges that she received the December 16, 2003 Notice to Appear, and that she did so only because the Notice had been forwarded to her new post office box. Pet. 4; see A.R. 122, 189. Yet despite the fact that that notice clearly informed petitioner that a hearing would be scheduled for a later date and stressed that peti tioner had an obligation to keep the Immigration Court apprised of her most current address, A.R. 189-190, pe titioner neither updated her address nor made any ef fort to contact the Immigration Court about her re moval proceeding for nearly eighteen months, see Pet. 4. When petitioner finally did seek to reopen her re moval proceedings, she made no effort to explain her failure to comply with the 180-day deadline for seeking to reopen an in absentia removal order, let alone to jus tify equitable tolling of that deadline, in any of the three motions that she filed with the IJ. In fact, it was not until her appeal to the BIA of the IJ's denial of her mo tion to reconsider the denial of her second untimely mo tion that petitioner even acknowledged her failure to comply with the statutory deadline. See pp. 5-8, supra. Under these circumstances, no court could be expected to find that petitioner exercised sufficient "due diligence in preserving [her] legal rights" to justify resort to the "sparingly" invoked doctrine of equitable tolling. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990).

What is more, it is highly doubtful that petitioner could establish ineffective assistance by her former at torney in any event. In Lozada, supra, the Board stated that an alien claiming ineffective assistance of counsel in removal proceedings must "include a statement that sets forth in detail the agreement that was entered into with former counsel with respect to the actions to be taken." 19 I. & N. Dec. at 639. Although petitioner, her husband, and Hatcher, her former counsel, all re counted in their affidavits that Hatcher was retained to represent petitioner and her husband in filing an appli cation for adjustment of status with the USCIS in DHS, none of them stated that Hatcher had also been retained to represent petitioner in her separate removal proceed ings before the IJ in the Department of Justice. See pp. 6-8, supra. And before this Court, petitioner states only that she paid Hatcher "$1065 in anticipation of getting married and filing an adjustment of status for [peti tioner]." Pet. 4. On this record, petitioner has not es tablished that Hatcher's representation even encompas sed petitioner's removal proceedings during the rele vant time period and has therefore not established an essential predicate for a claim of ineffective assistance of counsel in those proceedings.11

Moreover, if it is assumed even arguendo that Hatcher's representation encompassed the removal pro ceeding, petitioner has not demonstrated ineffective assistance of counsel. Hatcher stated in his affidavit that petitioner filed with the IJ in support of her second motion to reopen that he "did not recognize" that there was a problem with petitioner's receiving her mail or that the mail was being forwarded pursuant to a Postal Service forwarding order, and that he "failed to advise" petitioner to notify the government of a change of ad dress. A.R. 152. But Hatcher did not identify any cir cumstance that should have led him to "recognize" any problem with petitioner's receipt of mail from the Immi gration Court; to the contrary, petitioner came to Hatcher in January 2004 to discuss the Notice to Appeal she had received, ibid. Nor did Hatcher identify any reason why he should have reiterated orally the warning explicitly set forth in the Notice to Appear that peti tioner should advise the Immigration Court of any change of address. The need for petitioner to do so would have been obvious to her in any event, since peti tioner represented in her affidavit submitted to the IJ that she had rented her post office box "specifically to receive all correspondence from the Department of Homeland Security and the Immigration Court." A.R. 82.

3. Finally, to the extent that there is any tension in the approaches currently followed by the various courts of appeals, there are two additional reasons why this case would be an unsuitable vehicle to address it. As explained earlier (pp. 5-8, supra), the filing at issue here is petitioner's motion to reconsider the IJ's denial of her second-and untimely-motion to reopen her removal proceedings. The relevant statute, however, clearly states that an alien may file one motion to reopen pro ceedings under this section. 8 U.S.C. 1229a(c)(7)(A) (Supp. V 2005). In addition, as the IJ noted, although a motion to reconsider must "specify the errors of law or fact in the previous order," 8 U.S.C. 1229a(c)(6)(C) (Supp. V 2005), petitioner's motion for reconsideration "d[id] not cite any errors of fact or law in the [IJ's] prior two decisions." Pet. App. 12a. Although neither of these bases was relied upon by the BIA or the court of appeals, they provide additional reasons why the result in petitioner's case would be exceedingly unlikely to change even were this Court to hold that the 180-day deadline may be equitably tolled in certain circum stances.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
DONALD E. KEENER
FRANCIS W. FRASER
Attorneys

SEPTEMBER 2007

1 The INS's immigration-enforcement functions have since been transferred to United States Immigration and Customs Enforcement in the Department of Homeland Security. See 6 U.S.C. 251 (Supp. V 2005).

2 The statute defines "exceptional circumstances" as "refer[ring] to exceptional circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien." 8 U.S.C. 1229a(e)(1) (Supp. V 2005).

3 Petitioner's other argument before the BIA was that her attorney's alleged ineffectiveness had caused her to lack "actual notice" of the removal hearing, which, she suggested, caused her to "fit within the [8 U.S.C. 1229a](b)(5)(C)(ii) exception for 'lack of notice.'" A.R. 24. Petitioner does not renew that claim before this Court, and it is without merit in any event. See 8 U.S.C. 1229a(b)(5)(C)(ii) (stating that motion to reopen proceedings may be "filed at any time if the alien demon strates that the alien did not receive notice in accordance with paragraph (1) or (2) of section 1229(a)" (emphasis added)).

4 As noted earlier (pp. 4-5, supra), both the Notice to Appear and Notice of Hearing were actually mailed to the Springer Road address that petitioner had provided to DHS in 2002. It is undisputed, however, that petitioner actually received the Notice to Appear after it was forwarded to the post office box she was using. Pet. 4. In her original motion to reopen her removal proceedings, moreover, petitioner stated that she maintained the post office box "until May 2004," A.R. 165, which was several months after the Notice of Hearing was mailed, A.R. 187-188.

5 Former Section 1252b(c)(3) provided that an order of deportation entered in absentia could be rescinded "only-

(A) 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 (as defined in subsection (f)(2) of this section), or

(B) upon a motion to reopen filed at any time if the alien demon strates that the alien did not receive notice in accordance with subsection (a)(2) of this section or the alien demonstrates that the alien was in Federal or State custody and did not appear through no fault of the alien.

8 U.S.C. 1252b(c)(3) (1994). This provision was repealed by Section 308(b)(6) of the Illegal Immigration Reform and Immigrant Responsi bility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009- 615, and redesignated as 8 U.S.C. 1229a by IIRIRA Section 304(a)(3), Div. C, 110 Stat. 3009-589. See pp. 2-3, supra (quoting current Section 1229a(b)(5)(C)).

6 Although it is not the ground upon which she seeks a writ of certiorari, petitioner errs in suggesting (Pet. 8) that "[a]liens enjoy the right to effective assistance of counsel in removal proceedings." An alien in removal proceedings has a statutory right to be represented by counsel of the alien's choice at no expense to the government. 8 U.S.C. 1229a(b)(4)(A). This Court has never held, however, that the Constitu tion requires the government to appoint counsel for aliens in removal proceedings. And in Coleman v. Thompson, 501 U.S. 722 (1991), a habeas corpus case, the Court held that, when the Constitution does not require the government to provide counsel, the ineffectiveness of privately retained counsel does not violate the Constitution. Id. at 754; see Wainwright v. Torna, 455 U.S. 586 (1982) (per curiam) (no basis for constitutional claim of ineffective assistance of counsel in seeking discretionary state supreme court review of criminal conviction, because there is no constitutional right to counsel in that setting).

There is no obvious reason why the result should be different in the removal context. As Judge Easterbrook has explained:

The Constitution entitles aliens to due process of law, but this does not imply a right to good lawyering. Every litigant * * * is entitled to due process, but it has long been understood that lawyers' mistakes in civil litigation are imputed to their clients and do not justify upsetting the outcome. The civil remedy is damages for malpractice, not a re-run of the original litigation.

Magala v. Gonzales, 434 F.3d 523, 525-526 (7th Cir. 2005) (citations omitted). Indeed, this Court has repeatedly held in other contexts that a party is bound by counsel's errors in civil proceedings. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 396-397 (1993); United States v. Boyle, 469 U.S. 241, 249-250 (1985); Link v. Wabash R.R., 370 U.S. 626, 633-634 (1962). Thus, although petitioner is correct that a number of courts have held that an alien has a constitutionally based claim of ineffective assistance of counsel in removal proceedings, this Court's decisions do not support that proposition.

7 Petitioner also refers (Pet. 10) to the Fourth Circuit's unpublished decision in Akwada v. Ashcroft, 113 Fed. Appx. 532 (2004). In that case, the court of appeals assumed-again without deciding-that equitable tolling is sometimes available under certain regulations governing removal proceedings. See id. at 539 n.7 ("Because we do not find equitable tolling in this case, we need not reach the issue whether the statutory and regulatory time and number bars on motions to reopen removal proceedings are jurisdictional such that equitabl[e] tolling may never be employed to overcome them.").

8 In her brief to the BIA, petitioner claimed that she failed to advise the Immigration Court of her change of address "[i]n reliance on [her former attorney's] advice." A.R. 24. As the IJ noted (A.R. 69), however, there does not appear to be any evidence in the record that petitioner's attorney affirmatively advised her not to notify the Immigration Court that her address had changed. See A.R. 152 (affidavit by petitioner's former attorney: "I failed to advise [petitioner] to notify USCIS of a change of address").

9 The regulation was the same one at issue in the Ninth Circuit's decision in Varela, supra. See Iavorski, 232 F.3d at 131.

10 In Zhao v. INS, 452 F.3d 154 (2006) (per curiam), the Second Circuit found that the BIA had "erred" in refusing to find equitable tolling of both the time and number limits sets forth in 8 C.F.R. 1003.2(c)(2) based on the combination of "the ineffective assistance of the attorney who filed [the alien's] first motion to reopen" and the alien's "impressive diligence in retaining new counsel and promptly filing a new motion." Zhao, 452 F.2d at 160.

11 Petitioner also summarily asserts (Pet. 16-17) that the court of appeals' decision in this case "amounts to a clear violation of [peti tioner's] due process rights" on the theory that she "had a clear avenue for relief from removal in that she was married to a U.S. citizen." Petitioner provides no legal authority for this assertion, nor does she assert a conflict with any other lower court. In any event, it is well- established that even a constitutional right "may be forfeited * * * by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." Yakus v. United States, 321 U.S. 414, 444 (1944).