Filed: Sep. 09, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 14-10993 Date Filed: 09/09/2014 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-10993 Non-Argument Calendar _ Agency No. A075-435-916 DENEISE BENJAMIN-STUBBS, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (September 9, 2014) Before WILSON, JORDAN and ANDERSON, Circuit Judges. PER CURIAM: Case: 14-10993 Date Filed: 09/09/2014 Page: 2 of 7 Deneise Benjamin
Summary: Case: 14-10993 Date Filed: 09/09/2014 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-10993 Non-Argument Calendar _ Agency No. A075-435-916 DENEISE BENJAMIN-STUBBS, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (September 9, 2014) Before WILSON, JORDAN and ANDERSON, Circuit Judges. PER CURIAM: Case: 14-10993 Date Filed: 09/09/2014 Page: 2 of 7 Deneise Benjamin-..
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Case: 14-10993 Date Filed: 09/09/2014 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10993
Non-Argument Calendar
________________________
Agency No. A075-435-916
DENEISE BENJAMIN-STUBBS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 9, 2014)
Before WILSON, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 14-10993 Date Filed: 09/09/2014 Page: 2 of 7
Deneise Benjamin-Stubbs, a native and citizen of Jamaica proceeding pro se,
seeks review of the Board of Immigration Appeals’s (BIA) affirmance of the
Immigration Judge’s (IJ) denial of her motion to reopen removal proceedings. She
argues that the BIA abused its discretion by affirming the IJ’s denial of her motion
to reopen because she did not have notice of her master calendar hearing and
because her failure to attend the hearing was the result of ineffective assistance of
counsel.
Benjamin-Stubbs entered the United States on July 18, 1992, at the age of
16, as a non-immigrant B-2 visitor with authorization to remain in the United
States until January 17, 1993. After remaining beyond that date without
authorization from the Department of Homeland Security (DHS), she was issued a
Notice to Appear (NTA) charging that she was subject to removal for overstaying
her visa. The NTA, along with a list of free legal service providers and an
instruction to notify the DHS of any change of address, was sent by regular mail to
her Laken Drive residence. On June 10, 1998, the immigration court continued her
master calendar hearing to August 5, 1998 and had her lawyer, who had filed an
appearance that day, personally served with a notice of the hearing. He was
subsequently granted leave to withdraw after attempting, and failing, to make
contact with Benjamin-Stubbs in connection with the hearing.
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Benjamin-Stubbs failed to appear at the master calendar hearing, and an
immigration judge ordered her removed in absentia. A copy of the immigration
judge’s order was mailed to the Laken Drive residence.
Thirteen years later, Benjamin-Stubbs retained new counsel and attempted to
rescind the removal order by filing a motion to reopen removal proceedings
alleging that she received ineffective assistance of counsel and that she was not
given notice of the master calendar hearing. In support, Benjamin-Stubbs stated
that an unnamed representative of a free legal service provider advised her not to
attend the master calendar hearing because the matter would be adjourned. She
only discovered the removal order when she filed for an adjustment of status based
on her 2002 marriage to a United States citizen.
The IJ denied Benjamin-Stubbs’s motion to reopen, concluding that she had
constructive notice of the master calendar hearing because her attorney had been
personally served with written notice of the hearing. Moreover, the IJ determined
that Benjamin-Stubbs failed establish that her absence from the hearing was
explained by exceptional circumstances because she did not provide adequate
documentary evidence. In addition, her motion to reopen, to the extent it was
based on a claim of exceptional circumstances, was time-barred as beyond the 180-
day time limit imposed by 8 C.F.R. § 1003.23(b)(4)(ii). The IJ’s decision was
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affirmed on appeal by the Board of Immigration Appeals. Benjamin-Stubbs now
appeals the denial of her motion to reopen.
We “review[] the BIA’s denial of a motion to reopen for an abuse of
discretion.” Mejia Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999). We
review the decision of the BIA as well as any portions of the IJ’s opinion with
which the BIA agrees. See Kazemzadeh v. U.S. Att’y Gen.,
577 F.3d 1341, 1350
(11th Cir. 2009) (reviewing the decisions of both the IJ and BIA as they related to
the question of whether petitioner had established a well-founded fear of
persecution because the BIA agreed with the IJ’s finding on that issue).
Petitioners are required to exhaust all administrative remedies available in
order for this Court to review a final order of removal. See Amaya-Artunduaga v.
U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam). Accordingly,
if a petitioner failed to raise a claim before the BIA, we lack jurisdiction to
consider that claim. See
id. Additionally, we have no authority to consider
evidence outside of the administrative record. Al Najjar v. Ashcroft,
257 F.3d
1262, 1282 (11th Cir. 2001).
An undocumented immigrant who fails to appear at her removal hearing will
be ordered removed in absentia when it is “establishe[d] by clear, unequivocal, and
convincing evidence that . . . written notice was . . . provided and that the
[undocumented immigrant] is removable.” 8 U.S.C. § 1229a(b)(5)(A). An in
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absentia order of removal may be rescinded by filing, within 180 days, a motion to
reopen that “demonstrates that the failure to appear was because of exceptional
circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). Ineffective assistance of counsel
may qualify as an “exceptional circumstance.” See Montano-Cisneros v. U.S. Att’y
Gen., 514 F.3d 1224, 1226 (11th Cir. 2008).
The 180-day deadline for seeking reopening of removal proceedings after an
in absentia order of removal based on exceptional circumstances is a non-
jurisdictional, claim-processing rule. Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d
1357, 1362 n.4 (11th Cir. 2013) (en banc) (per curiam). Moreover, this rule is
subject to equitable tolling. See
id. at 1363–65. “[E]quitable tolling requires a
litigant to show (1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way.”
Id. at 1363 n.5 (internal
quotation marks omitted). The facts underlying a claim of ineffective assistance of
counsel “may serve both as a basis for equitable tolling and for the merits of [a]
motion to reopen.” Ruiz-Turcios v. U.S. Att’y Gen.,
717 F.3d 847, 851 (11th Cir.
2013).
An undocumented immigrant may also move, at any time, to reopen removal
proceedings following an in absentia order of removal if she did not receive notice
of her removal hearing. 8 U.S.C. § 1229a(b)(5)(C)(ii). The notice requirement
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may be fulfilled by personally serving a notice of hearing to the undocumented
immigrant’s counsel. 8 U.S.C. § 1229(a)(1).
Unfortunately, Benjamin-Stubbs was misadvised about the consequences of
the August 5, 1998 hearing by the free legal clinic from which she sought
assistance. She was also ill-advised about her rights in connection with her
application to adjust her status to lawful permanent resident. The denial of her
motion to reopen appears harsh. Benjamin-Stubbs is married to a United States
citizen, is the mother of two United States citizens, and has been in the country
since she the age of 16—nearly 22 years.
However, we do not write on a blank slate, and we cannot say that the BIA
abused its discretion here. Benjamin-Stubbs’s motion to reopen was filed well
after the 180-day limitations period, and she has not presented any evidence
suggesting that she is entitled to equitable tolling. Thus, to the extent she sought
rescission based on the exceptional circumstance of ineffective assistance of
counsel, her claim is time-barred. See 8 U.S.C. § 1229a(b)(5)(C)(i). Second, the
BIA correctly determined that Benjamin-Stubbs had constructive notice of the
hearing because her counsel was personally received a notice of hearing. See 8
U.S.C. § 1229(a)(1). Moreover, by arguing that a free legal services representative
informed her not to attend the master calendar hearing, Benjamin-Stubbs admitted
to having actual notice of the hearing. Thus, Benjamin-Stubbs lacked a basis to
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justify reopening her removal proceedings, and the BIA did not abuse its discretion
by concluding otherwise. Accordingly, we deny the petition.
Benjamin-Stubbs now argues for the first time that her lawyer provided
ineffective assistance of counsel by failing to forward the notice of hearing to her
new address. Because this argument was not raised before the BIA, Benjamin-
Stubbs failed to exhaust her administrative remedies and we lack jurisdiction to
entertain it. Amaya-Artunduaga, 463 F.3d at 1250. Benjamin-Stubbs also asserts
for the first time that she did not seek assistance from the free legal services
representative until after the immigration court entered the order of removal and
that several other attorneys continued to provide ineffective assistance of counsel
over the course of 14 years. Despite these new contentions, we may not consider
factual matters outside the administrative record. Al
Najjar, 257 F.3d at 1282.
Because we lack jurisdiction to consider these newly-raised claims, we dismiss this
part of Benjamin-Stubbs’s petition.
PETITION DENIED IN PART AND DISMISSED IN PART.
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