* The Honorab le William Staff ord , Se nior United States Distr ict Judge for the Northern Distri ct of Florida, s itti ng by designation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0415P (6th C ir.) File Name: 03a04 15p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
G ERALD S SWAJJE , Petitione r,

v.

J OHN A SHCROFT , Attorney Genera l, Responde

nt. X - - - -
> , - - - - N Nos. 02-3558; 03-3023

On Appea

l from the Board o f Imm

igration Appeal s. No. A74 738 139. Argued: October 28, 2003
Decided and Filed: November 21, 2003

Before: CLAY a

nd COOK, Circuit Judges; STAFFORD, Senior District Judge. * 2 Sswajje v. Ashcroft Nos. 02-3558; 03-3023

_________________ COUNSEL

ARGUED: E. De nnis Muchnicki, Dublin, Ohio, for Petitione r. Carol Federighi, UNI TED STATE S DEPARTMENT OF JUSTICE, Washington, D.C., for Res ponde nt. ON BRI EF: E. Dennis Muchnicki, Dublin, Ohi o , for Petitioner. Carol Federighi, Allen W. Hausman, Emily A. Radford, Anthony W. Norwood, U NITED STATE S DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

_________________

OPINION

_________________ CLAY, Circu it J udge. I n Case No. 02-3558, Gerald Sswajje petitions this Court forreview of the April 22, 2002, order of the Boar d of Immigration Appea ls (“BIA”) dismissing as untimel

y his appeal of the March 7, 2001, order of the immigration judge, which had denied his application for asylum and withh olding of

deporta tion. I n Case No. 03- 3023, Sswajje pe

titions t hi s Court for review of the December

27, 2002, order of

the BI A deny ing his mo tion to reconsi der its April 22, 2002, order. Having had the benefit of oral argument and having c arefully c onsidered the reco rd
on appeal, the briefs of the parties, and the applica ble law, we
are persuaded

that the BIA committed no err or of fact or law and did not abuse its discretion when it dismissed Sswajje’s appeal as untimely and later de nied Sswajj e’s motion for reconsideration.

I.
Gerald Sswajje is

a nati ve and citizen of Uganda. On March 7, 2001, a

n immigra

ti on judg e conducted a mer its hearing on the government’s removability claim and onNos. 02-3558; 03-3023 Sswajje v. Ashcroft 3

1 All re ferenc es to “A.R.” refer t o the administrat ive record for Case No. 02-3558. Refere nces to J.A . refer to the Join t Appendi x for Case No. 03-3023. Sswajje’s application for asy lum and withholding of

removal or, alternatively, f

or voluntary depa

rture. (A.R. 94.) 1 Attorney Dennis Muc hnic ki, who represents Sswajje before this Court, als o repre sented Sswajj e at the immigration hearin g. (A.R. 139.) On the d ay of t he hearing, the immigration

judge sustained the charges of r em ov ab il it y, denied the asylum application a s untimely and denied the applications for withholding of removal and f or voluntary departure. (A.R. 123-24.)

After deliv ering h is fi ndin gs, th e imm igrati on ju dge engaged in the following colloquy with Sswajje a n d his counsel, Mr. Muchn

icki:

JUDGE TO MR. MUCHNICKI Q. You’re

reserving his r

ight to a ppeal? A. Yes.
JUDGE TO MR. SSEWAJJE [ sic] Q. Now, sir, y

our lawy er is indic ating he

is reserving y o ur right to appeal my decision, whichhas found that you have no t met your burden. And the Court denied all your applications for relief.

... Now, Mr. Muchnicki is an experienced immigration attorney . He knows that to effectuate a valid appeal, h e has to file your

appeal no later than April 6th of this year, at the Bo ard of I

mmigrat ion Appea

ls in Falls Church, Virginia. That app lication has to be completely filled out and all the appropr

iate fees paid or waived. He also unde rstands that if he doesn’t get this to t

he Board by t

hat date , it

w ill be deemed abandoned and the Court ’ s decisionwill beco me final. That me ans you 4 Sswajje v. Ashcroft Nos. 02-3558; 03-3023

can’t wait until A

pril 5th or 6th or

even the 4th to mail your appeal. I

t will get there too late. (A.R. 260-61.) Despite the clea r admoniti o n of

the immig

ration jud ge to file the appeal by

April 6, 2001, Mr. Muchnicki did not mail Sswajje’s notice of

appeal t o the BI A until Apr

il 7 , 2001

. (A.R. 89.) The BIA r

eceived the notice of appeal on April 9, 2001. (A.R. 85.)

The INS moved for summary dismissal of Sswa

jje’s B IA appeal on the ground of untimeliness. (A.R . 83.) Mr. Muchnicki filed an opposition on Sswajje’s behalf, admitting that he had made an error c alcul ating t he due date of the appe al due to a di stractin g “mini- crisis” i

n his law pr

acti ce

. (A.R. 44-52.) On Ap ril 22, 2002, the BIA issued an orde r dismissing the appeal as untimely. ( A.R. 2.)

OnMay 21, 2002, the

same day Sswajje noticed his appeal to this Court in Case No. 02-3558, Sswajje filed a motion with the B IA f

or reconsidera

tion of itsApril22, 2002, order dismissing his appeal of the immigration judge’s order. (J.A. 4-5.) Inthat motion, Sswajje argued that the late-filed appeal of the immig

r ation judg e’s dec ision was e xcusable b ecause his attorney had misca

lculated the due date and b ecause the

m erits of his immigration case allegedly showed he woul d face certain persecu

tion if he were returned to his native Uganda. On December

27, 2002, the BIA denied the motion to reconsider because Sswajje had “e stablished n o error of law or fact

” in th e B IA’ s A pr il 22 , 2 00 2, or de r. Sp ec if ic al ly, since Sswajje’s reconsideration mot io n confir med that h

is appeal was untimely due to his counsel’s er ror, th e BIA had notcommitted a factual error in its April 22, 2002, order. (J.A. 3.)Nos. 02-3558; 03-3023 Sswajje v. Ashcroft 5

II.
Fede r al Regulations in effect at the time of Sswajje’s im migration

proceedings in 2001 provide that the BI A ha s a ppellate jurisdict ion from d

ecisions of immigr

ation judg es i n asylum cases, deportation cases an d remova l procee dings. 8 C.F.R. §§ 3.1(b), 3.3(a)(1), 3.38(a) (2001). An appeal is not deemed p roperly filed unle ss it is rece ived at th e BI A within the specifie d time for

appeal. Id. § 3.3(a)(1). To effectuate a timely appeal o f the dec isi on o f an immigration judge, the petitioner has to ensure that the BI A receives the notice of appeal “within 30 calendar day s after the stating of an Immigration

Judge’s oral decision....” Id

. at §§ 3.3(a)(1), 3.38(b)-(c), 240.15. The decision of the immi gratio n jud ge becomes final upon expiration of the time to appeal if no appeal has been taken

. Id. at §§ 3.39, 240.14. The BIA ha s the authority

t o summaril

y di smiss any

appeal t

hat is untimely. Id. § 3.1(d)(2)(F).

It is undisputed that Sswajje filed his notice of appea l to o late. Since the

immigra ti on ju dge had rendered an oral decisionon March 7, 2001, Sswajje was required to have filed his notice of

appeal by no la

ter than April 6, 2001. He did not
even mail the no tice of a

ppeal unt il A p ril 7, 2001, and the appeal was not filed by

the BI A until Apr

il 9, 2001. Ssw ajje neverth eless argues that the BIA should have entertained the untimely appeal because of

“ex traordinary

and unique circumstances,” namely, the excus able neglec t of his attorney in missing the appeal deadline and thestrong likelihood that he will be persecuted

if he is denied an appeal

and retu rned to Uganda. Sswajje’s first ar

gument i s meritle ss in

light of this Court’s holding in Anssari-Gharachedaghy v. INS, 246 F.3d 512, 515 (6th Cir. 2000) (assu ming arg uendo that the BIA has discretionto en tertai n late-filed appeals in unique and extraordinary

circumstances, BI

A did notabuseits discretion indismissing

untimely appeals ; order o f immigr ati on judge had notified petitioners that

they had to file

their ap peals wit h 6 Sswajje v. Ashcroft Nos. 02-3558; 03-3023

the BIA by

November 12, 1998, but counsel mailed the appeals on November 9, 1998 and they did not reach

the BIA until November

13, 19 98). T he imm igrati on ju dge explicitly told Sswajj e in

the presence of his attorney that the BIA had t o re ceive th e appea

l no later than Apr il 6, 2001. T

hus, it makes no sense f

or Sswajje

to argu e th at his c ounsel, so distracted by other matters in his offic e, made a n e rror in calculatingthe appeal deadline. There were no calculations to be done. To find unique and extraordinary c ircumstances
on thesefacts, this Court would have to eviscerate its holding in Anssari-Gharachedaghy

. Sswajje also can not rely on the alleged merits of

his asylum applicationto show uni que and e xtraordina

ry circumst ances. This approac

h effectively

would require the Court to review the decision of the immigration judg e . This Court has no jurisdiction to re view the immigration judge’s decision, however , because Sswaj je faile d to exhaust

all avail able administrative remedies by f iling a timely appe al to the BIA. See Perkov ic v . INS, 33 F.3d 615, 619 (6th Cir. 1994) (“Insofar as a peti

tioner fa il s to exhaust his

availab le admini strative remedies, ... a federal court is without jurisdiction to conside

r his petit ion for r eview.” ); Harchenko

v. INS, 22 FED App. 540, 543 (6th Cir. 2001 ) (c ourt lacked jurisdiction over ce

rtain is sues; petitione

r had fa iled to exhaust admin istra tive reme dies as to those issues beca

use brief fi led with

the BIA on

those issued had been untimely) ; Da Cruz v. INS, 4 F.3d 721, 722 -23 ( 9th Ci r. 19 93) ( “We have no jurisdic

tion to rev

iew the I

mmigrat i on Ju dge’s decisionbecause

the I NS did nottimely appeal to the B IA.”) (citationomitted). Accordingly , Sswajje’s petition for review of the BIA’s or

der in Case No. 02-3558 is not well-taken.

III.

BIA regulations authorize a motion for r ec onsideration of
a BIA decision and pr

ovide that such a

motion “shall sta

te the reasons for the motion by specifying

the errors of

fact or l aw in th e prior Board decision and shall be supported byNos. 02-3558; 03-3023 Sswajje v. Ashcroft 7

p ertinent authority.” 8 C.F.R. § 1003.2(b)( 1). The BIA’ s decisionto deny

a motion for reconsideration is reviewed for abuseof discretion. Dawood-Haio v. INS, 800 F.2d 90, 95 (6th Cir. 1986.) Th e B IA a

buses its d

iscretion when it a

cts arbitra rily , irrationally

or contrary

to law. Babai v. INS, 985 F.2d 252, 255 (6th Cir. 1993).

The BIA did not abuse its discret ion in denying Sswajje’ s motion for rec onsid erati on because the motion alerted the BIA to no legal or factual arguments that had not alrea dy been presented to the BI

A in response to the INS’s motion for summary dismissal of the untimely appeal of the immigration judge’s or der. Perhaps recognizing this fact, Sswajje’s at to rn ey, Mr. Muchn

icki, now argue s that his failure

to filea timely appeal amounted

to ineffective assistanc e of coun sel, whichshould have excused his client’s noncompli ance wi th the appeal d

eadline . Sswajje c annot a vail himself of

this argume nt, howeve r, bec aus e he di d no t ra is e it in th e BIA proceedi ngs. There, he arg ued only that the me

rits of his immigration

case jus tified an

exception

to the appeal deadline and that Sswajje should not be pun is hed for his counsel’s “simple” mistake. He never argued that his counsel’s mistake rose to the level of a deprivation of due process

. This Court therefore lacks jurisdiction to entertain Sswajje’s ineffective assistance of counse l argument b ecause he faile d to exhaust his administrative remedies. Cf. Harchenko, 22 FED App. at 543 (holding that court lacks jurisdiction over issues not raised before the BI A; petition er had f

ailed to exhaust administrative remedies as to those issues because brief filed with the BIA on those issued ha d been un timely ); Akinwunmi

v. INS, 194 F.3d 1 340, 1341 ( 10th Cir. 1999) (“... [B]ec ause the BIA provides a me chanism for hearing an ine ffec tive assistance claim, an alien’s failure to raise the claim to the BIA deprives this cour

t of jurisdiction to review it.”).

T he proper avenue for raising ine ffective assistance of counsel is by

filing a motion to re open pro ceeding s with the BIA. Matter of Lozada, 19 I& N. Dec . 63 7, 6 39 ( 198 8). In support of that motion, the alien is required (1) to f ile an 8 Sswajje v. Ashcroft Nos. 02-3558; 03-3023

affida vit stating his agreement with form er couns el with respect to the actions to be taken on appeal and

what counsel did nor did not repres ent to the alien in this reg ard; (2)to show that former counsel was informed of the allegations and
was given an oppor tunity to respon d; and (3) to state whether
a complaint has been filed with approp r iate disciplinary authorities regar

ding the allege dly ineffective representation. Id.; see also Hamid

v. Ashcr oft, 336 F.3d 465, 469 (6th Cir. 2003) (“S ound policy reasons support c ompliance with the L ozada requirements.”). Sswajje arguably can bypa ss th e first two Lozad

a r equirements (because Mr. Muchnicki himself has arg ued that h

is repre sentation

was i ne ffective), butthere is no evidence in the record as to whether di sciplinary authorit

ies have been notified of Mr. Muchnicki’s all eged m isconduc t. The BI

A has expla

ined that this requirement

“not only

serves t o deter m eritless

cla ims of i neffective representation but also highlights the stand ar d whichshould be expected of attorney s who represent persons inim mi gr at io n p ro ce ed in gs , t he ou tc om e o f w hi ch ma y, and often does, have enormous significance for the person.” Id. at 639-40. Si

nce Sswa jje faile d to follow

this process for
c onsiderationof ineff

ective a ssistance

claims , this Court lack s jurisdict ion to dete

rmine the merits of this arg ument.

IV.

For the fore going

reasons , Gerald

Sswajje’ s petitions f

or review of t he B IA orders i

n Case Nos. 02-3558 and 03-3023
ar e h er eb y DENIED.