Unpublished Disposition, 931 F.2d 59 (9th Cir. 1988)

MEMORANDUM^* 

Petitioner appeals from a decision of the Board of Immigration Appeals (BIA), upholding the immigration judge's (IJ) denial of petitioner's motion to reopen his deportation hearing. Petitioner urges the panel to reverse the BIA so he can have his asylum claim heard on the merits. We affirm.

FACTS AND PROCEEDINGS BELOW

Petitioner, a thirty-one year old Nicaraguan, was detained near Harlingen, Texas in October 1986. The Immigration and Naturalization Service (INS) detained him and served him with an order to show cause why he should not be deported. On November 12, 1986, petitioner's first attorney, Juan Pena, filed a notice of appearance with the INS. Five days later, petitioner appeared for his deportation hearing, but his attorney did not attend. The judge rescheduled the hearing to December 1, 1986. On November 24, 1986, petitioner filed a bond with the INS and moved to San Francisco, his original destination before he was detained. His bond worksheet failed to indicate his forwarding address in San Francisco.¹ 

On November 25, 1986, petitioner's attorney admitted deportability and requested additional time to file an application for political asylum. The judge accepted this request and ordered that the application be filed by January 7, 1987. The judge later amended that ruling upon the request of petitioner's attorney. The new deadline was January 21, 1987. Pena never filed the application for asylum. On January 27, 1987, the immigration judge issued an order for deportation. The judge sent this order to Pena.

On September 18, 1987, Jonathan Kaufman, petitioner's new attorney in San Francisco, submitted a notice of appearance on behalf of petitioner. He also filed a completed asylum application, a motion to reopen the deportation proceedings based on ineffective assistance of counsel, a motion to change venue to San Francisco, and petitioner's affidavit, which indicated that he never received notice of the asylum application deadline from the INS or from his former attorney.

Petitioner alleged in his asylum application that the Nicaraguan government was punishing him for his discovery and subsequent disclosure of fraud at the state run telephone company. Petitioner was an accountant for TELCOR, the agency charged with providing postal and telephone services in Nicaragua. In 1985, petitioner discovered that agency officials were diverting agency funds for their personal use. He reported the diversions to his supervisor. His supervisor later informed him that the supervisor's superiors wanted petitioner sent to a military combat unit serving in the mountains. Petitioner claims he was the only accountant who had to perform these duties. He believes this assignment was punitive and retaliatory. Petitioner resigned his position at TELCOR, obtained an exit visa and passport, and left the country.

On February 23, 1988, the IJ denied petitioner's motion to reopen, finding that the INS's notice to counsel of the asylum application deadline constituted notice to petitioner.²  On appeal to the BIA, petitioner claimed that he had received ineffective assistance of counsel and that the IJ erred by failing to notify him rather than his attorney of the deadline for his asylum application. In April 1989, the BIA affirmed the IJ's order. The BIA concluded that notice to Pena constituted notice to petitioner, so there was no reason for petitioner to have missed the application deadline.³  Moreover, the BIA found that petitioner failed to prove a claim for ineffective assistance of counsel. Petitioner did not demonstrate that he had ever tried to contact his previous attorney or that he had kept Pena apprised of his whereabouts after he moved to San Francisco. The BIA said "the respondent has not shown that he received ineffective assistance of counsel, since he has not shown that prior counsel had any means of contacting him. Accordingly, the respondent has not shown that the proceedings should be reopened." A.R. at 3.

Neither the IJ nor the BIA ever addressed the merits of petitioner's asylum application.

JURISDICTION

This court has jurisdiction over an appeal from the denial of a motion to reopen. See 8 U.S.C. § 1105a(a) (1988); Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 96 (1988).

STANDARD OF REVIEW

Congress has left the standards for reopening deportation proceedings to the discretion of the Attorney General and his agents. See Immigration & Naturalization Serv. v. Rios-Pineda, 471 U.S. 444, 449 (1985). This court will review a denial of a motion to reopen for abuse of discretion. See Abudu, 485 U.S. at 105. The moving party bears a "heavy burden" when requesting that proceedings be reopened. See id. at 110.

Petitioner cites a case suggesting that the proper standard of review is de novo. See Mohsseni Behbahani v. Immigration & Naturalization Serv., 796 F.2d 249, 250 (9th Cir. 1986). Petitioner's reliance on this case is misplaced. The case involved a direct appeal from the BIA's denial of claims involving ineffective assistance of counsel, which are mixed questions of law and fact that are reviewed de novo. While a claim for ineffective assistance of counsel is part of this appeal, the central question involves the BIA's denial of the motion to reopen deportation proceedings. Because the BIA has the discretion to deny these motions, this court will review the BIA's decision for abuse of discretion.

DISCUSSION

Before the BIA, petitioner argued that the IJ erred by failing to notify him of the asylum application deadline and the final deportation order. Petitioner has abandoned this claim on appeal. See Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir. 1988) (noting that claims that are not addressed in appellant's brief are deemed abandoned).⁴ 

Petitioner's principal argument on appeal is that Juan Pena's failure to file an asylum application constituted ineffective assistance of counsel. He argues that Pena's failure is a sufficient reason for the BIA to reopen the proceedings.

To prevail on his ineffective assistance of counsel claim, the petitioner must prove that his counsel was "so ineffective as to have impinged upon the fundamental fairness of the hearing in violation of the fifth amendment due process clause." See Magallanes-Damian v. Immigration & Naturalization Serv., 783 F.2d 931, 933 (9th Cir. 1986). Petitioner must also show that he was prejudiced by his counsel's ineffectiveness. See Mohsseni, 796 F.2d at 251.

We hold that petitioner has failed to satisfy the first requirement. Petitioner has failed to demonstrate that his previous attorney was ineffective in any manner. The BIA correctly concluded that:

The respondent has not shown that he ever made any attempt to contact his former counsel or that he kept his counsel informed of his whereabouts. Thus the respondent has not shown that he received ineffective assistance of counsel, since he has not shown that prior counsel had any means of contacting him. Accordingly, the respondent has not shown that the proceedings should be reopened.

A.R. at 4.⁵  The petitioner has only alleged that Pena was ineffective. Nothing has been offered to support that conclusion.

In his appeal brief, petitioner also argues that this court should remand his case back to the IJ because the INS violated its own regulations by failing to record his hearing before the IJ or the BIA. This claim was not presented to the IJ or the BIA.

This court does not have jurisdiction to hear this new claim on appeal. "Failure to raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter." Vargas v. United States Dep't of Immigration & Naturalization, 831 F.2d 906, 907-08 (9th Cir. 1987); see Israel v. Immigration & Naturalization Serv., 710 F.2d 601, 606 (9th Cir. 1983), cert. denied, 465 U.S. 1068 (1984).

For the foregoing reasons, the BIA's denial of petitioner's motion to reopen is affirmed.

AFFIRMED.