FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Dec. 21, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-13311

Non-Argument Calendar

________________________

Agency No. A098-320-097

LANXIANG CHEN,

a.k.a. Lan Xiang Chen,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(December 21, 2009)

Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

Lanxiang Chen, a citizen of China, petitions for review of the Board of
Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”)

decision to deny her motion to reopen her removal proceedings. After review, we

dismiss in part and deny in part the petition.

I. BACKGROUND

On July 11, 2007, the Department of Homeland Security served Chen with a

Notice to Appear charging her with removability for overstaying her visitor’s visa.

On September 29, 2007, Chen was personally served with notice of her master

hearing scheduled for October 16, 2007. The notice indicated that her failure to

attend the master hearing could result in an order of removal.

Chen did not appear at the master hearing. The IJ found that Chen was

provided written notice of the hearing and the consequences for failing to appear.

The IJ conducted the hearing in absentia in accordance with 8 U.S.C.

§ 1229a(b)(5)(A), INA § 240(b)(5)(A) and ordered her removal to China.

On December 7, 2007, Chen moved the IJ to reopen the removal

proceedings based on exceptional circumstances in the form of ineffective

assistance of counsel and on changed country conditions. As to her ineffective

assistance claim, Chen asserted that Jessica Li at Account, Inc., told her to

disregard the notice of the hearing.

Chen attached an affidavit stating that she went to Account, Inc., a

“government-registered legal services agency” at 62 E. Broadway in Chinatown,

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New York City, for help in obtaining authorization to work in the United States.

Jessica Li assisted Chen in filing paperwork to obtain a green card and adjust her

status to permanent resident. When Chen received the October 16, 2007 hearing

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notice, she consulted Account, Inc. and was told to disregard the notice and not to

attend the hearing. The day after the hearing, Chen went to a law firm and learned

that she had been ordered removed. Chen confronted Li, who told Chen that she

had not expected that result, but that she could no longer help Chen. On October

24, 2007, Chen sent a letter to Li at “Account, Inc., 62 E. Broadway Basement,

New York, NY,” stating Chen’s intention to file a complaint with the New York

State Attorney General’s Office based on ineffective and misleading assistance.

However, Chen averred that “due to personal reasons, I had to terminate the

complaining process . . . .”

As to her changed country conditions claim, Chen attached an application

for asylum and withholding of removal stating that Chen was pregnant with her

second child and feared she would be forcibly sterilized if she returned to China.

The IJ denied Chen’s motion to reopen. With regard to Chen’s ineffective

assistance claim, the IJ concluded that Chen failed to meet the procedural

requirements of In re Lozada, 19 I. & N. Dec. 637 (BIA 1988). Specifically, the IJ

Chen averred that she later learned that the immigration forms Li prepared had been 1

falsified, and Chen had to withdraw them.

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found that Chen had not provided any evidence: (1) that Account, Inc. actually

existed, had a place of business at the address on Broadway in New York City

where she sent her letter to Li, provided legal services or was “government

registered”; or (2) that Jessica Li worked for Account, Inc. The IJ noted that Chen

“could have drafted and sent any letter to any one at that address, and this does not

suffice to demonstrate that [Chen] informed any purported attorney about the

allegations being lodged against that attorney and allowed former counsel an

opportunity to respond.” The IJ also found that Chen had not shown that she filed

a formal complaint with the New York State Bar or explained why she had not

done so other than for “personal reasons.” Finally, the IJ concluded that Chen had

not shown prejudice resulting from any alleged ineffective assistance. As for her

claim of changed country conditions, the IJ concluded that Chen’s evidence was

insufficient because it pre-dated her order of removal.

The BIA dismissed Chen’s appeal for the reasons given by the IJ. As to

Chen’s ineffective assistance claim, the BIA agreed that Chen had not shown

exceptional circumstances. The BIA stated that Chen had failed to prove the

existence of Account, Inc. or any legal representation by Li and that Chen’s excuse

for not filing a complaint with the appropriate authorities was an “insufficient

explanation.” Chen filed this petition for review.

II. DISCUSSION

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An alien who seeks to reopen removal proceedings following the entry of an

in absentia removal order must demonstrate that the alien’s failure to appear was

due to “exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i), INA

§ 240(b)(5)(c)(i). “Exceptional circumstances” are only those “beyond the control

of the alien” such as serious illness, death of a family member, or extreme cruelty

towards the alien. 8 U.S.C. § 1229a(e)(1); INA § 240(e)(1).

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In this context, our jurisdiction is limited to reviewing only: (1) the validity

of the notice provided to the alien; (2) the reasons why the alien did not attend the

proceeding; and (3) whether the alien is removable. 8 U.S.C. § 1229a(b)(5)(D);

INA § 240(b)(5)(D). Thus, we have jurisdiction to review Chen’s claim that she

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failed to appear because of her alleged attorney’s ineffective assistance. However,

we lack jurisdiction to review Chen’s arguments regarding her motion to reopen

based on changed country conditions and dismiss Chen’s petition to the extent she

seeks review of that ruling.

We review for abuse of discretion the denial of a motion to reopen in absentia removal 2

proceedings based on exceptional circumstances. Montano Cisneros v. U.S. Att’y Gen., 514

F.3d 1224, 1226 (11th Cir. 2008). “In this particular area, the BIA’s discretion is quite broad.”

Anin v. Reno, 188 F.3d 1273, 1276 (11th Cir. 1999) (internal quotation marks omitted). Our

review is limited to whether the exercise of discretion was “arbitrary or capricious.” Abdi v.

U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). Where, as here, the BIA expressly

adopted the IJ’s reasons for the ruling, we review the IJ’s and the BIA’s decisions. Al Najjar v.

Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).

Chen does not challenge the validity of the notice of the removal hearing or her 3

removability.

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A claim of ineffective assistance of counsel may amount to exceptional

circumstances “when an applicant’s failure to appear is due to his attorney’s errant

instruction . . . .” Montano Cisneros, 514 F.3d at 1226; In re Grijalva-Barrera, 21

I. & N. Dec. 472, 474 (BIA 1996). To establish ineffective assistance of counsel as

“exceptional circumstances” for an alien’s failure to appear, the alien must

substantially comply with the procedural requirements set forth by the BIA in

Lozada. Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005); see

also Grijalva-Barrera, 21 I. & N. Dec at 474. Lozada requires the alien to: (1)

support the motion with an affidavit setting forth in detail the agreement that was

entered into with counsel and what representations counsel did or did not make to

the alien in this regard; (2) inform counsel of the allegations being leveled against

him or her and give counsel an opportunity to respond; and (3) state in the motion

“‘whether a complaint has been filed with appropriate disciplinary authorities with

respect to any violation of counsel’s ethical or legal responsibilities, and if not,

why not.’” Dakane, 399 F.3d at 1274 (quoting Lozada, 19 I. & N. Dec. at 639).

We conclude that the BIA and the IJ did not abuse their discretion by

denying Chen’s motion to reopen based on her ineffective assistance claim. Chen

does not challenge the IJ and BIA’s findings that she failed to prove that Account,

Inc. and Li provided her legal representation or that she gave them proper notice

and an opportunity to respond to her allegations of ineffective assistance. Thus,

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she did not show she complied with the second Lozada requirement.

Furthermore, Chen did not file a disciplinary complaint against Li or

Account, Inc. and did not explain why she did not do so except to say that she had

“personal reasons.” The IJ and the BIA concluded that Chen’s vague assertion of

personal reasons, without elaboration, was inadequate to comply with the third

Lozada requirement. We cannot say this determination was arbitrary or capricious.

DISMISSED IN PART; DENIED IN PART.

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