Manjit Sembhi v. Jefferson Sessions III ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-2746
MANJIT SINGH SEMBHI,
Petitioner,
v.
JEFFERSON B. SESSIONS III,
Attorney General of the United
States,
Respondent.
Petition for Review of an Order of
The Board of Immigration Appeals
No. A076-726-625
ARGUED FEBRUARY 14, 2018— DECIDED JULY 31, 2018
Before EASTERBROOK and ROVNER, Circuit Judges, and
GRIESBACH, District Judge.*
*
The Honorable William C. Griesbach, Chief Judge of the United States
District Court for the Eastern District of Wisconsin, sitting by designation.
2 No. 17-2746
ROVNER, Circuit Judge. When Manjit Singh Sembhi failed to
appear for an October 2001 hearing in his removal proceeding,
the immigration judge ordered him removed to his home
country of India. More than 10 years later, Sembhi filed a
motion to reopen and rescind the in absentia removal order,
which the immigration judge denied. Sembhi then sought
relief, unsuccessfully, from the Board of Immigration Appeals.
After a total of five adverse decisions from the Board, Sembhi
now faces the unenviable task of convincing us that the Board
abused its discretion in denying his third motion to reconsider
and fifth motion to reopen, with the latter being presumptively
barred in both number and time. Finding no error in the
Board’s latest decision that would warrant a remand, we deny
Sembhi’s petition for review.
I.
Sembhi, a native and citizen of India, entered the United
States in 1995 as a non-immigrant visitor and subsequently
overstayed his visa. Two years later, after he was unsuccessful
in seeking asylum from an Immigration and Naturalization
Service officer, Sembhi was served with a notice to appear
charging him with being removable from the country for want
of authorization to remain here. Initially, it was Sembhi’s
expectation that he would be able to obtain an I-130 visa based
on his marriage to a U.S. citizen, and with such a visa in hand
he would be able to seek adjustment of status. But when
Sembhi appeared before an immigration judge for a hearing in
August 2001, his counsel reported that his wife had obtained
a default judgment of divorce against Sembhi earlier that year,
rendering him ineligible for adjustment of status. Sembhi’s
counsel, Justin Burton, indicated to the judge that Sembhi
No. 17-2746 3
intended to explore the possibility of vacating the divorce
judgment and, in the alternative, apply for cancellation of
removal as an allegedly battered spouse or, failing that, to seek
voluntary departure from the country. The judge put the
matter over to October 10, 2001, in order to permit Sembhi and
his counsel to pursue these possibilities.
When the hearing convened on October 10, Burton was
present but Sembhi was not. Burton advised the judge that he
had not communicated with his client in several weeks despite
attempts to contact him but that Sembhi was on notice of the
court date. Agreeing that Sembhi had received both written
and oral notice of the October 10 hearing, the judge proceeded
with the hearing in absentia, and, noting that Sembhi had
previously conceded his removability and by virtue of his
absence had effectively abandoned any requests for relief from
removal, ordered Sembhi removed to India.
More than ten years later, in August 2012, Sembhi, now
represented by attorney Sakina Carbide, filed a motion with
the immigration judge seeking to reopen and rescind the in
absentia removal order. Sembhi placed the blame for his failure
to appear at the October 2001 hearing squarely on the attorney
representing him at that time: Burton.1 Burton, Sembhi alleged,
1
Sembhi’s motion erroneously named attorney Jeffrey Kriezelman as the
attorney responsible for his absence, but as later pleadings would make
clear, it was Burton whom he should have named. Burton was associated
with Kriezelman, whose firm Sembhi had hired in 1997 to represent him in
the removal proceeding. Kriezelman had appeared on Sembhi’s behalf at
prior hearings, but it was Burton who had appeared at both the October 10
hearing as well as the prior hearing in August. Beginning with Sembhi’s
(continued...)
4 No. 17-2746
had not given him advance notice of the hearing and had made
statements leading Sembhi to believe that he need not appear
at that hearing; and once the judge ordered him removed in
absentia, Burton had failed to inform Sembhi of that order, thus
preventing him from filing a timely motion to reopen. Sembhi
contended that Burton’s ineffective assistance in these respects
constituted an “exceptional circumstance[ ]” warranting
(belated) rescission of the removal order. See 8 U.S.C.
§ 1229a(b)(5)(C)(i) (rescission of in absentia removal order
requires alien to demonstrate that his failure to appear was due
to “exceptional circumstances”); § 1229a(e)(1) (defining
“exceptional circumstances” to include circumstances beyond
control of alien which are as compelling as extreme cruelty to
alien, his child, or parent; serious illness of alien; or serious
illness or death of alien’s spouse, child, or parent).
The immigration judge denied Sembhi’s request. The judge
pointed out that Sembhi had been present in court in August
2001, when the October hearing was scheduled, and had
received both oral and written notice of that hearing. To the
extent he was seeking to reopen the proceeding based on his
previous attorney’s ineffectiveness, the judge noted that
Sembhi had “provided no evidence of [his] compliance with
any aspect of the[ ] requirements” that Matter of Lozada, 19 I. &
N. Dec. 637, 639 (B.I.A. 1988), overruling vacated by Matter of
Compean, 25 I. & N. Dec. 1 (B.I.A. 2009), specifies for such
claims. A.R. 882. Lozada requires: (1) that the motion be
1
(...continued)
first motion to reconsider and third motion to reopen, Sembhi and his
counsel recognized the error and charged Burton with ineffectiveness.
No. 17-2746 5
supported by an affidavit from the respondent setting forth in
detail the agreement that he entered into with counsel with
respect to the actions to be taken and what representations
counsel did or did not make to the respondent in that regard;
(2) that counsel be informed of the allegations leveled against
him and be given an opportunity to respond; and (3) that the
motion reflect whether a complaint has been filed with the
appropriate disciplinary authority as to any violation of
counsel's ethical or legal responsibilities, and if not, why not.
Id.Sembhi appealed the immigration judge’s decision to the
Board, which dismissed the appeal. Contrary to what he had
represented to the immigration judge, Sembhi acknowledged
to the Board that his attorney had informed him orally of the
hearing date and that Sembhi mistakenly understood (perhaps
due to language difficulties) that the hearing was scheduled for
October 12 rather than October 10. Sembhi also acknowledged
that when he appeared in his attorney’s office on October 12,
counsel did timely inform him of the in absentia removal order
but added that there was nothing he could do about that order.
The Board was satisfied that the record supported the
immigration judge’s finding that Sembhi had both oral and
written notice of the October 2001 hearing but nonetheless
failed to appear. In that regard, the Board pointed out that
Sembhi now admitted that his attorney did inform him of the
October hearing date but said that he thought the hearing was
set for October 12 rather than October 10. In the Board’s view,
a mistake in Sembhi’s mind as to the hearing date did not
constitute an exceptional circumstance excusing his absence.
And even if it might so qualify, Sembhi had filed his motion to
6 No. 17-2746
reopen and rescind the removal order more than 10 years after
the fact, far beyond the 180 days that the statute allowed for a
motion to reopen the removal order. See 8 U.S.C.
§ 1229a(b)(5)(C)(i). Because, as Sembhi now acknowledged, he
was aware of the removal order in 2001, the Board saw no
basis for equitable tolling of the 180-day time limit.
Over two years later, early in 2016, Sembhi presented the
Board with a second motion to reopen, returning to a version
of events that placed the blame for both his absence at the
October 2001 hearing and his failure to timely challenge the in
absentia removal order on attorney Burton. (Sembhi now
alleged that Burton had misinformed him that the hearing was
scheduled for October 12, and, after Sembhi failed to appear on
October 10, advised him there was nothing he could do about
the removal order and that he would have to leave the United
States.) By the time he filed this second motion, Sembhi had
been married to another U.S. citizen for more than 10 years,
and the I-130 visa petition she had filed on his behalf had been
approved. But for the removal order, Sembhi would have the
opportunity to have his status adjusted, just as he had before
his first marriage broke up. Sembhi contended, inter alia, that
the approval of his I-130 visa and his prospective eligibility for
adjustment of status constituted new evidence and a change of
circumstances warranting reopening of the removal proceed-
ing.
The Board, in denying this second motion, indicated that it
would not revisit Sembhi’s claimed lack of notice of the
October 2001 hearing or his attorney’s alleged misconduct, “as
a motion to reopen is not an opportunity to repeat previously-
considered arguments.” A.R. 416. The Board did add, however,
No. 17-2746 7
that to the extent Sembhi meant to advance a new claim of
attorney ineffectiveness, he had neither “meaningfully raised”
such a claim, nor had he complied with the requirements of
Lozada for such claims. A.R. 416. (The Board had more to say in
its order regarding the equities of Sembhi’s changed circum-
stances, but for present purposes we may restrict our summary
to the foregoing aspects of the Board’s order.)
Thereafter, Sembhi returned to the Board multiple times on
successive motions to reconsider and to reopen, in each
instance relying on the alleged ineffectiveness of the multiple
attorneys who had represented him previously in an effort to
circumnavigate the chronological and numerical limits on his
requests to reopen. Sembhi again attributed his failure to both
appear at the October 2001 hearing and then to timely chal-
lenge the resulting removal order to attorney Burton, who
allegedly had misinformed him of the October hearing date,
failed to effectively advocate for him in his absence by asking
that his presence be waived or that the hearing be continued,
and later told him that nothing short of a doctor’s note indicat-
ing that he was in an emergency room at the time of the
October 2001 hearing would suffice to convince the immigra-
tion judge to retroactively excuse his absence from that hearing
and rescind the removal order. He attributed his decision to
wait for more than 10 years before he finally sought to reopen
the removal order to another attorney, Cheryl Lenz-Calvo.
According to Sembhi, he and his second wife consulted with
Lenz-Calvo in 2003, but she told them, erroneously, that he
would have to wait for a minimum of 10 years after the entry
of his removal order in order to file a motion to reopen the
removal proceeding and to apply for any relief based on his
8 No. 17-2746
second marriage to a U.S. citizen. And he attributed his failure
to meet the Lozada requirements in seeking relief based on
Burton’s alleged ineffectiveness on attorney Carbide, who had
prepared the first motion to reopen attributing his failure to
appear at the October 2001 hearing to Burton’s erroneous
advice that he need not attend.
In disposing of these serial motions, the Board (as relevant
here) in each instance found no legal or factual error in its prior
decisions warranting reconsideration. As for Sembhi’s requests
to reopen, the Board repeatedly observed that Sembhi had not
shown full compliance with the Lozada requirements for
ineffective assistance claims, despite his representations that he
had corrected the omissions, so he could not rely on the
purported ineffectiveness of his previous counsels as a basis
for tolling the time and numerical limits on his motions to
reconsider.
Sembhi’s consecutive efforts at having the Board change its
mind culminated in the July 25, 2017 order under review here.
A.R. 3–4. That order disposed of Sembhi’s third motion to
reconsider and fifth motion to reopen. To the extent Sembhi’s
motion to reconsider asked the Board to revisit the denial of his
previous two motions to reconsider, the Board pointed out that
it was barred by regulation from doing so. See 8 C.F.R.
§ 1003.2(b)(2). To the extent the motion to reconsider was
directed at the prior denial of Sembhi’s request to reopen, the
Board noted that Sembhi had not identified any legal or factual
error in its prior decision or any argument that it had over-
looked; Sembhi simply repeated the same arguments he had
made before, nearly verbatim. Contrary to those arguments,
the Board noted that Sembhi had not submitted sufficient
No. 17-2746 9
evidence showing that he had provided notice to his former
attorneys of his ineffectiveness allegations as required by
Lozada; simply filing a charge with the Illinois Attorney
Registration and Disciplinary Commission (“ARDC”), the
Board added was insufficient. “Lozada compliance is especially
important,” the Board explained, “as the attorneys should have
the opportunity to answer the assertions made against them.
Proper evaluation of the respondent’s ineffective assistance
allegations includes consideration of prior counsel’s responses,
if any, to the alleged deficient performance.” A.R. 3–4. The
Board went on to deny Sembhi’s fifth motion to reopen,
finding that he had not established an exception to the chrono-
logical and numerical limits barring consideration of that
motion. The only new evidence accompanying the motion to
reopen was Lenz-Calvo’s response to the ARDC charge Sembhi
and his wife had filed; and that response revealed that al-
though Lenz-Calvo had had preliminary discussions with
Sembhi, they had not entered into an attorney-client relation-
ship with her concerning the removal proceedings. “Under the
circumstances,” the Board concluded, “the respondent has not
met his burden of demonstrating ineffective assistance of
counsel to equitably toll the time and number limits on
motions. We will not revisit the remaining ineffective assis-
tance allegations, as we have already considered and rejected
them.” A.R. 4 (citations omitted). Finally, the Board declined to
exercise its discretion to sua sponte reopen, as Sembhi had not
shown there were exceptional circumstances warranting that
action.
10 No. 17-2746
II.
Sembhi’s serial motions to the Board to reopen and recon-
sider its prior rulings denying reopening trace back to the
immigration judge’s 2012 order refusing his original motion to
reopen the removal proceeding and rescind the in absentia
removal order the judge had entered in 2001 as well as the
Board’s 2013 order dismissing Sembhi’s appeal from the
immigration judge’s adverse decision on that motion. Recall
that the Board was not convinced at the outset that Sembhi had
a meritorious case to make for rescinding the removal order:
Sembhi was on notice of the October 2001 hearing that he
missed, the Board pointed out, and his professed confusion
about the date of that hearing did not constitute the sort of
extraordinary circumstance that would warrant reopening the
proceeding and rescinding the removal order.
Sembhi would like us to review the Board’s judgment on
that point and conclude that it was an abuse of discretion.
Citing Singh v. INS, 295 F.3d 1037, 1040 (9th Cir. 2002), Sembhi
argues that confusion about a hearing date can constitute
extraordinary circumstances excusing an alien’s failure to
appear, where he has previously demonstrated a strong
intention to appear and defend against removal as evidenced
by his prior record of attendance and his likely eligibility for
relief from removal. Sembhi’s prospects for avoiding removal
as of October 2001 were less rosy than the alien in Singh’s were,
given his divorce. Sembhi’s counsel believes that he would
have been able to secure voluntary departure if no other relief,
although it is not clear that the abstract possibility of such
discretionary relief is enough to place his case on par with
Singh. See Valencia-Fragoso v. INS, 321 F.3d 1204, 1205–06 (9th
No. 17-2746 11
Cir. 2003) (per curiam) (distinguishing Singh where sole relief
potentially available to alien was voluntary departure).
But given Sembhi’s delay in pursuing reopening, and the
limits in number and time on his efforts to seek reopening, we
cannot reach that issue unless Sembhi first convinces us that
the Board committed some error in concluding that he has not
demonstrated a basis for equitably tolling those limits. The
basis Sembhi has proffered is the alleged ineffective assistance
of his previous attorneys. But the Board concluded that Sembhi
never satisfied the prerequisites that its decision in Lozada
establishes for those claims. And that is where our own
analysis begins and ends, for we agree with the Board that
Sembhi has not demonstrated compliance with Lozada.
Notwithstanding the number of orders the Board has
issued in Sembhi’s case, the only order before us now is the
Board’s most recent order of January 25, 2017. That order
denied Sembhi’s fifth motion to reopen, as well as his motion
to reconsider its prior order denying his fourth motion to
reopen. We review the Board’s denial of both requests for
abuse of discretion. See INS v. Abudu, 485 U.S. 94, 107, 108 S. Ct.
904, 913 (1988); Yusev v. Sessions, 851 F.3d 763, 766 (7th Cir.
2017).
With respect to the motion to reconsider, there is no dispute
that Sembhi’s fourth motion to reopen was barred in time,
given that it was filed more than 90 days after the April 2013
dismissal of his appeal from the immigration judge’s order
refusing to rescind the in absentia removal order. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); Yusev, 851 F.3d at 766. So the relevant
question is whether there is an equitable basis warranting
12 No. 17-2746
tolling of that limitation. See id. at 767 (time and numerical
limits may be tolled when there is equitable basis to do so).
Sembhi has argued that his former attorneys’ ineffective
assistance supplies this basis. See id. (recognizing that ineffec-
tive assistance of counsel can be appropriate basis for lifting
time and numerical limits). The Board concluded otherwise,
and Sembhi bears the burden of convincing us that there was
some legal or factual error in the Board’s decision (denying his
fourth motion to reopen) that warranted reconsideration. See
8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1); e.g., Aparicio-
Brito v. Lynch, 824 F.3d 674, 687 (7th Cir. 2016).
As for the (fifth) motion to reopen, it was not only late,
given that it was filed more than 90 days after the Board’s 2013
order dismissing his appeal from the immigration judge’s
refusal to rescind the 2001 removal order, but also numerically
barred, as the regulation allows an alien to file only one such
motion. 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(b)(2). So
again the question is whether Sembhi is entitled to equitable
tolling of those limitations in light of the evidence Sembhi
submitted in support of his latest motion to reopen, and more
to the point whether the Board abused its discretion in con-
cluding that he is not.2
Sembhi is alleging that attorneys Burton (who told him
there was essentially no hope of reopening and rescinding the
in absentia removal order absent an emergency room note) and
2
Apart from Sembhi’s motion to reopen, the Board also considered
whether it should exercise its power to sua sponte reopen the removal
proceeding but declined to do so. That decision is beyond our jurisdiction
to review. E.g., Fuller v. Lynch, 833 F.3d 866, 872 (7th Cir. 2016).
No. 17-2746 13
Lenz-Calvo (who told him he had to wait for 10 years) were
responsible for his delay in seeking to reopen the removal
proceeding, and that attorney Carbide was responsible for his
initial failure to comply with the Lozada requirements as to the
ineffectiveness of the other two attorneys.
An alien in removal proceedings does not have a right to
counsel per se, but he does have a due process right to a fair
hearing, and his attorney’s ineffectiveness can excuse a default
where it deprives him of a fundamentally fair proceeding in
which he may make his case. Lozada, supra, 19 I. & N. Dec. at
638; see, e.g., Sanchez v. Sessions, — F.3d —, 2018 WL 3285780,
at *3 (7th Cir. July 5, 2018). In order to make out a prima facie
claim of attorney ineffectiveness, Lozada as we have mentioned
requires an alien to: (1) submit an affidavit identifying his
agreement with the attorney he now charges with ineffective-
ness, including the tasks counsel represented he would
undertake on his behalf; (2) show that he has given his former
counsel notice of his allegations of ineffectiveness and the
opportunity to respond to them; and (3) to the extent the
charged ineffectiveness involves a violation of counsel’s ethical
or legal duties, indicate whether he has filed a complaint with
the appropriate attorney disciplinary agency and, if not,
explain why not. Lozada, 19 I. & N. Dec. at 639. Collectively,
these requirements help to establish that a charge of ineffec-
tiveness has enough substance to warrant the time and effort
that will be required to resolve the claim on its merits. See id. at
639–40; Patel v. Gonzales, 496 F.3d 829, 831 (7th Cir. 2007).
Toward that end, the requirement that the allegedly ineffective
attorney be given notice of the allegations serves to discourage
baseless charges, afford the attorney whose competence is
14 No. 17-2746
being questioned the chance to present his version of events,
and, where the attorney admits having erred, expedite the
resolution of the claim. Lozada, 19 I. & N. Dec. at 639–40;
Guzman-Rivadeneira v. Lynch, 822 F.3d 978, 983–84 (7th Cir.
2016); Patel, 496 F.3d. at 832. So long as the Board does not act
arbitrarily, it may refuse to address the merits of ineffective-
ness claims when the alien has not complied with these
requirements. Id. at 831.
Sembhi has never shown that he provided notice of his
ineffectiveness claims and the opportunity to respond to either
Burton or Carbide. His briefs represent that he did so, but he
has tendered no evidence as to when and how he gave them
notice. Representations in a brief do not constitute evidence of
compliance with Lozada’s requirements. Patel, 496 F.3d at832–33. The affidavits Sembhi submitted to the Board are silent
on the matter of notice,3 and in support of his assertion on this
point, his briefs to both the Board and to this court have cited
only proof that he filed disciplinary complaints with the Illinois
ARDC against these attorneys. The requirement that an alien
file a disciplinary charge is distinct from the requirement that
3
We note that Sembhi’s original affidavit, filed in support of the 2012
motion asking the immigration judge to rescind the in absentia removal
order, indicated that he had filed a complaint with the “bar committee”
regarding his former counsel’s performance and that he sent a copy of the
complaint to counsel. A.R. 871. But that affidavit misidentified Kriezelman
as the attorney who was responsible for his absence at the October 2001
hearing and Kriezelman as the attorney to whom he sent a copy of his bar
complaint. So based on that affidavit, we can have no confidence that
Burton, who handled the October 2001 hearing, was ever notified of
Sembhi’s charge of ineffectiveness.
No. 17-2746 15
he give his former attorney notice of the alleged ineffective-
ness. Marinov v. Holder, 687 F.3d 365, 369 (7th Cir. 2012).
Copying counsel on a disciplinary charge does not necessarily
alert him that his conduct is at issue in a pending immigration
proceeding and that he has the right to be heard in that
proceeding as well as the disciplinary proceeding. More to the
point, the fact that the petitioner has filed a charge with the
state disciplinary agency does not by itself establish that the
attorney in question has received notice of the charge, as the
ARDC does not invariably ask an attorney for a response to the
charge. See Marinov, 687 F.3d at 369; see also Illinois Attorney
Registration & Disciplinary Commission website,
http://www.iardc.org/htr_filingarequest.html#9 (attorney is
notified of complaint if commission decides to investigate)
(visited July 21, 2018). In short, Sembhi failed to establish that
he gave the requisite notice to Burton and Carbide of his
ineffectiveness allegations.
The allegations against Lenz-Calvo arguably stand on a
different footing, as Sembhi submitted proof that she filed a
response to the ARDC charge he filed against her (so we know
that she had at least some notice of his allegations); but that
response, as the Board reasoned, reveals a fatal flaw in
Sembhi’s claim. Lenz-Calvo’s response indicates that although
Sembhi consulted with her, she and Sembhi never entered into
an attorney-client relationship. Sembhi does not dispute the
point; indeed, the evidence he submitted in an effort to comply
with Lozada itself indicates that he and his wife never engaged
Lenz-Calvo to represent Sembhi because they did not have the
money to do so. (There is a dispute between Lenz-Calvo and
Sembhi as to the size of the retainer she requested, but that is
16 No. 17-2746
immaterial.) Lozada’s first requirement is that the alien describe
the terms of his agreement with counsel and identify the
specific tasks that counsel undertook to perform. 19 I. & N.
Dec. at 639. Given that Lenz-Calvo never undertook to perform
any tasks on Sembhi’s behalf, the Board committed no error in
concluding that any mistake or omission on her part did not
deprive him of a fundamentally fair proceeding in contraven-
tion of his Fifth Amendment right to due process.
The Board thus committed no error in finding that Sembhi
failed to meet Lozada’s threshold requirements for making a
claim of attorney ineffectiveness. As to Lenz-Calvo, there was
no undertaking to act on Sembhi’s behalf that might support
such a claim, and as to Burton and Carbide, Sembhi did not
establish that he gave them the requisite notice of his charges.
In the absence of a potentially meritorious claim of ineffec-
tiveness, Sembhi was left without a basis on which to urge the
Board to equitably toll the limits in number and time on his
motions to reopen; and absent a valid basis for tolling those
limits, he also had no ground on which to argue that the Board
should reconsider its previous decision to deny his request to
reopen the proceeding. We therefore have no need to consider
whether, assuming Sembhi could surmount the obstacles to
consideration of his motion(s) to reopen, the Board, in the
exercise of its discretion, improperly rejected Sembhi’s request
to reopen its 2013 order dismissing his appeal from the
unsuccessful effort to convince the immigration judge to
rescind the in absentia removal order.
No. 17-2746 17
III.
For all of the foregoing reasons, we DENY Sembhi’s
petition to review.