*

The Honorable William Stafford, Senior United States District Judge

for the Northern District of Florida, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0415P (6th Cir.)

File Name: 03a0415p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

GERALD SSWAJJE,

Petitioner,

v.

JOHN ASHCROFT, Attorney

General,

Respondent.

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Nos. 02-3558;

03-3023

On Appeal from the Board of Immigration Appeals.

No. A74 738 139.

Argued: October 28, 2003

Decided and Filed: November 21, 2003 

Before: CLAY and COOK, Circuit Judges; STAFFORD,

Senior District Judge.*

2 Sswajje v. Ashcroft Nos. 02-3558; 03-3023

_________________

COUNSEL

ARGUED: E. Dennis Muchnicki, Dublin, Ohio, for

Petitioner. Carol Federighi, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent. ON BRIEF: E. Dennis Muchnicki, Dublin,

Ohio, for Petitioner. Carol Federighi, Allen W. Hausman,

Emily A. Radford, Anthony W. Norwood, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent. 

_________________

OPINION

_________________

CLAY, Circuit Judge. In Case No. 02-3558, Gerald

Sswajje petitions this Court for review of the April 22, 2002,

order of the Board of Immigration Appeals (“BIA”)

dismissing as untimely his appeal of the March 7, 2001, order

of the immigration judge, which had denied his application

for asylum and withholding of deportation. In Case No. 03-

3023, Sswajje petitions this Court for review of the

December 27, 2002, order of the BIA denying his motion to

reconsider its April 22, 2002, order. Having had the benefit

of oral argument and having carefully considered the record

on appeal, the briefs of the parties, and the applicable law, we

are persuaded that the BIA committed no error of fact or law

and did not abuse its discretion when it dismissed Sswajje’s

appeal as untimely and later denied Sswajje’s motion for

reconsideration.

I.

Gerald Sswajje is a native and citizen of Uganda. On

March 7, 2001, an immigration judge conducted a merits

hearing on the government’s removability claim and on
Nos. 02-3558; 03-3023 Sswajje v. Ashcroft 3

1

All references to “A.R.” refer to the administrative record for Case

No. 02-3558. References to J.A. refer to the Joint Appendix for Case No.

03-3023.

Sswajje’s application for asylum and withholding of removal

or, alternatively, for voluntary departure. (A.R. 94.)1

Attorney Dennis Muchnicki, who represents Sswajje before

this Court, also represented Sswajje at the immigration

hearing. (A.R. 139.) On the day of the hearing, the

immigration judge sustained the charges of removability,

denied the asylum application as untimely and denied the

applications for withholding of removal and for voluntary

departure. (A.R. 123-24.)

After delivering his findings, the immigration judge

engaged in the following colloquy with Sswajje and his

counsel, Mr. Muchnicki:

JUDGE TO MR. MUCHNICKI

Q. You’re reserving his right to appeal?

A. Yes.

JUDGE TO MR. SSEWAJJE [sic]

Q. Now, sir, your lawyer is indicating he is

reserving your right to appeal my decision,

which has found that you have not 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, he has

to file your appeal no later than April 6th of this

year, at the Board of Immigration Appeals in

Falls Church, Virginia. That application has to

be completely filled out and all the appropriate

fees paid or waived. He also understands that if

he doesn’t get this to the Board by that date, it

will be deemed abandoned and the Court’s

decision will become final. That means you

4 Sswajje v. Ashcroft Nos. 02-3558; 03-3023

can’t wait until April 5th or 6th or even the 4th

to mail your appeal. It will get there too late.

(A.R. 260-61.)

Despite the clear admonition of the immigration judge to

file the appeal by April 6, 2001, Mr. Muchnicki did not mail

Sswajje’s notice of appeal to the BIA until April 7, 2001.

(A.R. 89.) The BIA received the notice of appeal on April 9,

2001. (A.R. 85.)

The INS moved for summary dismissal of Sswajje’s BIA

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 calculating the due date of the

appeal due to a distracting “mini-crisis” in his law practice.

(A.R. 44-52.) On April 22, 2002, the BIA issued an order

dismissing the appeal as untimely. (A.R. 2.) 

On May 21, 2002, the same day Sswajje noticed his appeal

to this Court in Case No. 02-3558, Sswajje filed a motion

with the BIA for reconsideration of its April 22, 2002, order

dismissing his appeal of the immigration judge’s order. (J.A.

4-5.) In that motion, Sswajje argued that the late-filed appeal

of the immigration judge’s decision was excusable because

his attorney had miscalculated the due date and because the

merits of his immigration case allegedly showed he would

face certain persecution if he were returned to his native

Uganda. On December 27, 2002, the BIA denied the motion

to reconsider because Sswajje had “established no error of

law or fact” in the BIA’s April 22, 2002, order. Specifically,

since Sswajje’s reconsideration motion confirmed that his

appeal was untimely due to his counsel’s error, the BIA had

not committed a factual error in its April 22, 2002, order.

(J.A. 3.)
Nos. 02-3558; 03-3023 Sswajje v. Ashcroft 5

II.

Federal Regulations in effect at the time of Sswajje’s

immigration proceedings in 2001 provide that the BIA has

appellate jurisdiction from decisions of immigration judges in

asylum cases, deportation cases and removal proceedings.

8 C.F.R. §§ 3.1(b), 3.3(a)(1), 3.38(a) (2001). An appeal is not

deemed properly filed unless it is received at the BIA within

the specified time for appeal. Id. § 3.3(a)(1). To effectuate a

timely appeal of the decision of an immigration judge, the

petitioner has to ensure that the BIA receives the notice of

appeal “within 30 calendar days 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 immigration judge

becomes final upon expiration of the time to appeal if no

appeal has been taken. Id. at §§ 3.39, 240.14. The BIA has

the authority to summarily dismiss any appeal that is

untimely. Id. § 3.1(d)(2)(F).

It is undisputed that Sswajje filed his notice of appeal too

late. Since the immigration judge had rendered an oral

decision on March 7, 2001, Sswajje was required to have filed

his notice of appeal by no later than April 6, 2001. He did not

even mail the notice of appeal until April 7, 2001, and the

appeal was not filed by the BIA until April 9, 2001. Sswajje

nevertheless argues that the BIA should have entertained the

untimely appeal because of “extraordinary and unique

circumstances,” namely, the excusable neglect of his attorney

in missing the appeal deadline and the strong likelihood that

he will be persecuted if he is denied an appeal and returned to

Uganda. 

Sswajje’s first argument is meritless in light of this Court’s

holding in Anssari-Gharachedaghy v. INS, 246 F.3d 512, 515

(6th Cir. 2000) (assuming arguendo that the BIA has

discretion to entertain late-filed appeals in unique and

extraordinary circumstances, BIA did not abuse its discretion

in dismissing untimely appeals; order of immigration judge

had notified petitioners that they had to file their appeals with

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, 1998). The immigration judge explicitly

told Sswajje in the presence of his attorney that the BIA had

to receive the appeal no later than April 6, 2001. Thus, it

makes no sense for Sswajje to argue that his counsel, so

distracted by other matters in his office, made an error in

calculating the appeal deadline. There were no calculations

to be done. To find unique and extraordinary circumstances

on these facts, this Court would have to eviscerate its holding

in Anssari-Gharachedaghy. 

Sswajje also cannot rely on the alleged merits of his asylum

application to show unique and extraordinary circumstances.

This approach effectively would require the Court to review

the decision of the immigration judge. This Court has no

jurisdiction to review the immigration judge’s decision,

however, because Sswajje failed to exhaust all available

administrative remedies by filing a timely appeal to the BIA.

See Perkovic v. INS, 33 F.3d 615, 619 (6th Cir. 1994)

(“Insofar as a petitioner fails to exhaust his available

administrative remedies, ... a federal court is without

jurisdiction to consider his petition for review.”); Harchenko

v. INS, 22 FED App. 540, 543 (6th Cir. 2001) (court lacked

jurisdiction over certain issues; petitioner had failed to

exhaust administrative remedies as to those issues because

brief filed with the BIA on those issued had been untimely);

Da Cruz v. INS, 4 F.3d 721, 722-23 (9th Cir. 1993) (“We

have no jurisdiction to review the Immigration Judge’s

decision because the INS did not timely appeal to the BIA.”)

(citation omitted). Accordingly, Sswajje’s petition for review

of the BIA’s order in Case No. 02-3558 is not well-taken.

III.

BIA regulations authorize a motion for reconsideration of

a BIA decision and provide that such a motion “shall state

the reasons for the motion by specifying the errors of fact or

law in the prior Board decision and shall be supported by
Nos. 02-3558; 03-3023 Sswajje v. Ashcroft 7

pertinent authority.” 8 C.F.R. § 1003.2(b)(1). The BIA’s

decision to deny a motion for reconsideration is reviewed for

abuse of discretion. Dawood-Haio v. INS, 800 F.2d 90, 95

(6th Cir. 1986.) The BIA abuses its discretion when it acts

arbitrarily, irrationally or contrary to law. Babai v. INS, 985

F.2d 252, 255 (6th Cir. 1993).

The BIA did not abuse its discretion in denying Sswajje’s

motion for reconsideration because the motion alerted the

BIA to no legal or factual arguments that had not already been

presented to the BIA in response to the INS’s motion for

summary dismissal of the untimely appeal of the immigration

judge’s order. Perhaps recognizing this fact, Sswajje’s

attorney, Mr. Muchnicki, now argues that his failure to file a

timely appeal amounted to ineffective assistance of counsel,

which should have excused his client’s noncompliance with

the appeal deadline. Sswajje cannot avail himself of this

argument, however, because he did not raise it in the BIA

proceedings. There, he argued only that the merits of his

immigration case justified an exception to the appeal deadline

and that Sswajje should not be punished 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 counsel argument because he failed to exhaust

his administrative remedies. Cf. Harchenko, 22 FED App. at

543 (holding that court lacks jurisdiction over issues not

raised before the BIA; petitioner had failed to exhaust

administrative remedies as to those issues because brief filed

with the BIA on those issued had been untimely); Akinwunmi

v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999) (“... [B]ecause

the BIA provides a mechanism for hearing an ineffective

assistance claim, an alien’s failure to raise the claim to the

BIA deprives this court of jurisdiction to review it.”).

The proper avenue for raising ineffective assistance of

counsel is by filing a motion to reopen proceedings with the

BIA. Matter of Lozada, 19 I & N. Dec. 637, 639 (1988). In

support of that motion, the alien is required (1) to file an

8 Sswajje v. Ashcroft Nos. 02-3558; 03-3023

affidavit stating his agreement with former counsel with

respect to the actions to be taken on appeal and what counsel

did nor did not represent to the alien in this regard; (2) to

show that former counsel was informed of the allegations and

was given an opportunity to respond; and (3) to state whether

a complaint has been filed with appropriate disciplinary

authorities regarding the allegedly ineffective representation.

Id.; see also Hamid v. Ashcroft, 336 F.3d 465, 469 (6th Cir.

2003) (“Sound policy reasons support compliance with the

Lozada requirements.”). Sswajje arguably can bypass the

first two Lozada requirements (because Mr. Muchnicki

himself has argued that his representation was ineffective),

but there is no evidence in the record as to whether

disciplinaryauthorities have been notified of Mr. Muchnicki’s

alleged misconduct. The BIA has explained that this

requirement “not only serves to deter meritless claims of

ineffective representation but also highlights the standard

which should be expected of attorneys who represent persons

in immigration proceedings, the outcome of which may, and

often does, have enormous significance for the person.” Id.

at 639-40. Since Sswajje failed to follow this process for

consideration of ineffective assistance claims, thisCourt lacks

jurisdiction to determine the merits of this argument.

IV.

For the foregoing reasons, Gerald Sswajje’s petitions for

review of the BIA orders in Case Nos. 02-3558 and 03-3023

are hereby DENIED.