* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-61115

Summary Calendar

Malik Muradali Haryani; Hamida Visnani

Petitioners,

v.

Michael B. Mukasey, U.S. Attorney General

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA Nos. A95-238-508, A78-885-601

Before JONES, Chief Judge, and HIGGINBOTHAM and CLEMENT, Circuit

Judges.

PER CURIAM:*

Petitioners Malik Muradali Haryani (“Haryani”) and Hamida Visnani

(“Visnani”) seek review of the Board of Immigration Appeals’s decision denying

on the merits a motion to reconsider its previous order, which affirmed an IJ’s

denial of their motion to reopen an in absentia removal order dated October 12,

2004 . For the following reasons, the petition is denied.

United States Court of Appeals

Fifth Circuit

F I L E D

November 21, 2007

Charles R. Fulbruge III

Clerk
No. 06-61115

2

BACKGROUND

The following facts are sufficient for the purposes of our review.

Petitioners are a married couple and natives of Pakistan. Haryani was admitted

to the United States in September 1990 as a non-immigrant visitor with

permission to remain for approximately one month. Mr. Haryani remained in

the United States beyond his designated date of departure. His wife, Ms.

Visnani, entered the United States without inspection in January 1998. In May

2003, the Department of Homeland Security issued Haryani and Visnani each

a Notice to Appear, charging them with being subject to removal. Their

proceedings were consolidated, and joint removal hearings were held before the

immigration court in Dallas, Texas. 

At the conclusion ofthe joint hearing in July 2004, the Immigration Judge

(“IJ”) advised Petitioners and their attorney, Lynn Olinger, that the next

hearing would be continued until August, 2004. The IJ later postponed the

hearing to October 12, and mailed notice of the change to Olinger. On October

12, Olinger appeared at the hearing, but Petitioners were absent. Olinger

advised the court that her legal assistant had just contacted Haryani on his

mobile phone and learned that Haryani and Visnani were in Houston. The IJ

ruled that notice of the hearing date to counsel was notice to Haryani and

Visnani, and proceeded in their absence. The IJ found both Haryani and

Visnani were removable, denied their applications for relief, and ordered them

removed from the United States.

Petitioners filed a motion with the IJ to reopen their removal proceedings,

arguing that they did not receive notice of the hearing date from their attorney

and raising a related claim of ineffective assistance of counsel. The IJ held a

hearing on the motion in February 2005 to receive evidence and testimony. The

IJ found that Haryani and Visnani lacked credibility and had failed to establish

that they did not receive notice of the October 12, 2004 hearing. The IJ also
No. 06-61115

1 Briefly, Lozada requires an alien asserting ineffective assistance of counsel to

(1) submit an affidavit detailing his claim, (2) inform counsel of the claim and allow an

opportunity to respond, and (3) file a grievance against counsel with the appropriate

disciplinary authorities or explain why a grievance has not been filed. Mai v. Gonzales,

473 F.3d 162, 165 (5th Cir. 2006).

3

found that Haryani and Visnani had failed to comply with the procedural

requirements for asserting a claim of ineffective assistance of counsel. See

Matter of Lozada, 19 I. & N. Dec. 637, 639-40 (BIA 1988).1In March 2005, the

IJ denied Petitioners’ motion to reopen the case. 

The Board of Immigration Appeals (“BIA”) affirmed this decision in July

2006, agreeing that Haryani and Visnani“did not credibly establish they had not

received proper notice” of the October 12, 2004 hearing. The BIA further noted

that even if Petitioners had satisfied the Lozada requirements for raising an

ineffective assistance of counsel claim, they failed to show that Olinger’s

performance resulted in a lack of notice. Petitioners filed a motion for

reconsideration, and the BIA affirmed its decision in November 2006. Haryani

and Visnani filed this petition for review under 8 U.S.C. § 1252(b); the petition

is timely only as to the order denying reconsideration.

DISCUSSION

Petitioners’ threshold issue is that their removal proceedings should be

reopened because they did not receive notice of the October 12, 2004 hearing.

Motions to reopen a removal proceeding are disfavored, and the moving party

bears a heavy burden. Altamirano-Lopez v. Gonzales, 435F.3d 547, 549 (5th Cir.

2006). We review the BIA’s denial of a motion to reopen under a highly

deferential abuse of discretion standard. Lara v. Trominski, 216 F.3d 487, 496

(5th Cir. 2000). The BIA’s “abundant discretion” in this area is not to be

disturbed unless its decision is “capricious, racially invidious, utterly without

foundation in the evidence, or otherwise so aberrational that it is arbitrary

rather than the result of any perceptible rational approach.” Pritchett v. I.N.S.,
No. 06-61115

2 Visnani, who had admitted under oath and through counsel that she entered the

United States without inspection, later changed her story and claimed to have gained entry

by means of a fake or fraudulent passport. The IJ found this statement contrary to her earlier

admissions and unsupported by any corroborating evidence.

4

993 F.2d 80, 83 (5th Cir. 1993). Because this case concerns an in absentia

removal order, our review is further limited by statute to three questions,

namely: (1) whether the alien received valid notice of the hearing; (2) whether

“exceptional circumstances” justified the alien’s absence from the hearing; and

(3) whether or not the alien is removable. 8 U.S.C. § 1229a(b)(5)(C)(i), (b)(5)(D);

Lonyem v. United States Atty Gen., 352 F.3d 1338, 1340 (11th Cir. 2003). 

The first question, whether there was notice to Petitioners, is not

debatable. The IJ correctly ruled, as the statute provides, that notice to counsel

was effective notice to Haryani and Visnani. 8 U.S.C. § 1229(a)(2); Men Keng

Chang v. Jiugni, 669 F.2d 275, 277 (5th Cir. 1982) (citing 8 C.F.R. § 292.5(a)).

Petitioners’ contention that counsel never advised them of the hearing date

might be relevant to their ineffective assistance of counsel claim—discussed at

greater length below—but not to the issue of notice itself. See DominguezCapistran v. Gonzales, 438 F.3d 876, 878 (8th Cir. 2006). The third question,

removability, is also beyond dispute. Both Haryani and Visnani conceded

removability before the IJ,2 and the IJ concluded they were removable.

Petitioners have not challenged this conclusion on appeal, and even if they had

it was not an abuse of discretion.

The only issue remaining is the second question, whether Petitioners’

absence from the October 12, 2004 hearing is excusable. Petitioners insist that

their attorney Olinger never notified them of the October hearing date. In

some cases, courts have held that an attorney’s failure to notify the client of a

hearing date amounted to ineffective assistance of counsel and was an

“exceptional circumstance” excusing the alien’s failure to appear. See 8 U.S.C.
No. 06-61115

3 Petitioners testified that they moved from the Dallas area to Houston on October 27,

2004, the same day they notified the court and Ms. Olinger of their change of address.

5

§ 1229a(b)(5)(C)(i); see also, e.g., Scorteanu v. I.N.S., 339 F.3d 407, 412-13 (6th

Cir. 2003) (holding notice to attorney was sufficient as to alien, but attorney’s

failure to notify alien of hearing date amounted to an “exceptional circumstance”

that could warrant rescission of in absentia removal order); DominguezCapistran, 438 F.3d at 878 (same). To maintain a claim for ineffective

assistance, an alien in a removal proceeding must fulfill Lozado’s procedural

requirements and must show that counsel’s actions were prejudicial to his case.

Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006).

The BIA concluded that even if Petitioners fulfilled the Lozado

requirements, they did not credibly establish that Olinger failed to notify them

of the removal hearing. At the hearing to reopen in February 2005, Olinger and

her assistant provided testimony and documentation tending to show that they

mailed notice of the October hearing to Petitioners on September 28, 2004. For

their part, Petitioners testified that they did not receive this notice, though they

acknowledged the address in Olinger’s files was correct.3 Petitioners testified

they made a day trip to Houston on the 12th of October, but they denied

receiving a phone call from Olinger or her assistant that day. This is in tension

with the transcript from October 12th, which includes Olinger’s statement that

her assistant had just spoken with Haryani, who advised he was in Houston. 

Though the question of notice was hotly contested, there was substantial

evidence to support the BIA’s determination. The BIA noted a number of

inconsistencies in Petitioners’ testimony concerning their communications with

Olinger. At the same time, while the record indicates that Olinger had a

tendency to be uncommunicative and disorganized in her representation of

Petitioners, both she and her paralegal testified exactly how the petitioners were

notified of the October 12 hearing, and Olinger represented to the court during
No. 06-61115

6

that hearing that her paralegal had been in contact with petitioners, who were

in Houston. On this record, we cannot say the BIA’s decision to credit her

testimony was “utterly without foundation in the evidence” or otherwise an

abuse of discretion. Pritchett, 993 F.2d at 83. Without proving a lack of notice,

Petitioners cannot show prejudice and cannot maintain a claim for ineffective

assistance of counsel. This case is unlike Galvez-Vergara v.Gonzales, 484 F.3d

798 (5th Cir. 2007), in which the attorney affirmatively misinformed a petitioner

that he need not appear at a hearing. Accordingly there is no basis for

disturbing the BIA’s decision.

In passing we note that Petitioners attempt to raise a number of other

issues on appeal. These arguments are beyond the limited scope of our review

or unexhausted, and in any event are inadequately briefed. Fed. R. App. P.

28(a)(4). 

Because Petitioners have not shown the BIA’s decision was an abuse of

discretion, the petition for review is DENIED.