NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 08a0350n.06

Filed: June 19, 2008

No. 07-3770

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ARTUR XHUTI,

Petitioner,

v.

MICHAEL B. MUKASEY, U.S. Attorney General,

Respondent.

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ON PETITION FOR REVIEW

OF A DECISION OF THE

BOARD OF IMMIGRATION

APPEALS

BEFORE: ROGERS, COOK, and McKEAGUE, Circuit Judges.

McKEAGUE, Circuit Judge. Artur Xhuti, on behalf of himself and his wife, Majlinda,

asks this court for relief from an adverse decision of the Board of Immigration Appeals (“Board”).

He maintains that he cannot return to his home country of Albania because of his past political

activities and his well-founded fear of future persecution. Because of several procedural miscues

during the immigration proceedings, however, we do not reach the merits of the claims presented

in the asylum application or the claim of ineffective assistance of counsel. As explained below, we

affirm the decision of the Board.

I
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The Xhutis, natives and citizens of Albania, came to the United States as nonimmigrant

students. Mr. Xhuti sought asylum on February 25, 2002, and listed his wife as a derivative

beneficiary. They were both charged with removability for failing to comply with the conditions of

their visas. They admitted to the Immigration Judge (“IJ”) most of the factual allegations in their

notices to appear, including that they arrived in the United States on July 24, 2001. The IJ noted at

their initial hearing that the Xhutis were physically in the United States less than a year before they

were served with their notices to appear. Neither challenged this factual assertion. They asked for

asylum, withholding of removal, protection from torture, and voluntary departure.

Mr. Xhuti admitted removability at the initial hearing. During a second hearing, the IJ found

that Mrs. Xhuti was removable as well because she asked to be included on her husband’s asylum

application and no longer had a foreign residence which she had no intention of abandoning.

The IJ held a merits hearing on February 9, 2005. He adjourned the hearing without issuing

a decision. He reconvened the hearing on May 20, 2005, and issued an oral decision. He reaffirmed

the Xhutis’ removability, denied the application for relief, and found them ineligible for voluntary

departure.

The Xhutis timely appealed to the Board on June 17, 2005. While the appeal was still

pending, the Xhutis moved to remand their case to allow them to apply for adjustment of status

based on Mrs. Xhuti’s approved I-140 employment-based visa petition. The Department of

Homeland Security (“DHS”) opposed the motion, arguing that the Xhutis were ineligible for

adjustment of status because they were not in lawful nonimmigrant status. In their reply brief, the

Xhutis argued for the first time that their ineligibility should be excused due to the ineffective
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assistance of their prior counsel. They also argued, contrary to the IJ’s earlier finding, that they had

been in the United States for at least a year before being served with their notice to appear and were,

therefore, eligible for voluntary departure.

On December 29, 2006, the Board dismissed their appeal and denied their motion to remand.

The Board found sufficient factual support for the IJ’s finding that the conditions in Albania had

changed enough to rebut a presumption of a well-founded fear of future persecution. As to remand,

the Board questioned why the Xhutis failed to inform the IJ that they had been in the United States

for at least a year prior to being served with the notice to appear. Moreover, they failed to submit

any proof that their prior counsel had been informed of the allegation of ineffective assistance of

counsel or that a grievance had been filed against him.

The Xhutis then took two avenues in search of relief. First, they filed a petition for review

in this court. The clerk of the court subsequently dismissed the petition. See infra § II.A.

The second avenue taken was a motion to reconsider filed with the Board. They asked that

the Board reconsider its decision not to remand for adjustment of status based on ineffective

assistance of counsel or, alternatively, that it consider their time spent in the United States prior to

July 2001 for purposes of meeting the one-year physical presence requirement for voluntary

departure. They attached a copy of their grievance against their prior counsel filed with the State of

Michigan Attorney Grievance Commission; several affidavits; and a copy of correspondence sent

by their current counsel to past counsel.

The Board treated the second motion as one to reconsider in part and to remand in part. On

the reconsider part, the Board held that the motion was untimely, but went on to deny reconsideration
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on the merits because the Xhutis had waived the argument that they were in the country at least a

year before service of the notice to appear. On the reopen part, the Board held that it was not time

barred because the period for filing a motion to reopen (ninety days) is longer than that for

reconsideration (thirty days). The Board concluded, however, that the Xhutis failed to explain why

they did not present their evidence sooner. Accordingly, the Board denied their second motion by

order filed on May 16, 2007. 

Mr. Xhuti petitioned this court for review of the Board’s May 16, 2007, decision.

II

A. December 29, 2006, Decision of the Board

Mr. Xhuti devotes considerable space in his briefs to the Board’s December 29, 2006,

decision on the merits of the asylum application and first motion. That decision, however, is not

before us. Pursuant to Sixth Circuit Rule 45(a)(3), the clerk of the court dismissed an earlier petition

from that decision for want of prosecution. Xhuti v. Gonzales, No. 07-3094, order (6th Cir. May 16,

2007). The Xhutis failed to seek reconsideration of the dismissal. 6th Cir. R. 45(b) (ten days to seek

reconsideration). The time limit for judicially challenging the December 29, 2006, decision of the

Board has since passed. 8 U.S.C. § 1252(b)(1) (thirty days). Therefore, we lack jurisdiction to

consider the merits of that decision. Prekaj v. INS, 384 F.3d 265, 267-68 (6th Cir. 2004).

B. May 16, 2007, Decision of the Board
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The Board decision properly before us for review is the May 16, 2007, decision on the second

motion for reconsideration and to reopen. We review the Board’s decision for an abuse of discretion.

Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003) (citation omitted); see also 8 C.F.R. § 1003.2(a).

“An abuse of discretion can be shown when the IJ or Board offers no rational explanation,

inexplicably departs from established policies, or rests on an impermissible basis such as invidious

discrimination against a particular race or group.” Denko, 351 F.3d at 723 (internal quotation marks

and alterations omitted). Questions of law are reviewed de novo. Ashki v. INS, 233 F.3d 913, 917

(6th Cir. 2000).

1. Motion for Reconsideration

To be eligible for voluntary departure, a petitioner must be physically in the United States

for at least one year before being served with a notice to appear. 8 U.S.C. § 1229c(b)(1)(A). The

DHS contends that this period must be uninterrupted—any voluntary departure from the United

States would start the clock over at the time of reentry. Mr. Xhuti argues to the contrary—a

temporary departure only pauses the clock while the alien is outside of the country. The Board did

not address the merits of this argument, however, because it concluded in its December 29, 2006,

decision that the couple had waived the argument by not challenging the IJ’s finding that the clock

began ticking on July 24, 2001. They sought reconsideration of that decision, and the Board denied

their second motion as untimely and on the merits.

We need not address the issue of timeliness. The purpose of a motion to reconsider is the

correction of legal or factual errors that occurred in the Board’s original decision. 8 U.S.C. §
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1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1). Therefore, a motion to reconsider “shall specify the errors

of law or fact in the previous order and shall be supported by pertinent authority.” 8 U.S.C. §

1229a(c)(6)(C).

It is undisputed that the Xhutis did not object to the IJ’s initial ruling or final ruling that they

did not meet the one-year requirement. Mr. Xhuti instead points to a line of questioning during the

merits hearing when the couple’s attorney attempted to show that they in fact were in the country

more than a year before being served with the notice to appear. Mrs. Xhuti was testifying about a

trip she made with her husband to Albania in 2001 to see her ill mother-in-law. The following

colloquy then took place: 

Q. Okay. And after leaving Albania did you spend any time in any other

country?

A. We just transit, I’m not sure it was a few hours or what. Just a transit, you

know, change of airplanes.

Q. Mrs. Xhuti, do you have any criminal convictions?

A. No.

Q. Do you have enough money in your savings account to buy a ticket --

JUDGE TO MS. SULLIVAN

Q. How is that relevant?

A. Voluntary departure, Your Honor.

Q. They’re not eligible.

A. Okay.
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Q. They don’t have the one-year after the Notice to Appear or before the Notice

to Appear was served.

Hr. Tr. at 139. Counsel then began asking Mrs. Xhuti about her fear of returning to Albania.

The IJ’s conclusion that the Xhutis did not qualify for voluntary departure is not before us.

Rather, we only review whether the Board abused its discretion in concluding that the Xhutis waived

the issue by not pursuing the matter further before the IJ or objecting to the IJ’s conclusion.

Regulations grant the Board the authority to prescribe its own procedural rules. 8 C.F.R. §

1003.1(d)(4). In prior administrative decisions, the Board has developed and applied a rule that

issues not objected to below are waived on appeal. See, e.g., In re R-S-H, 23 I&N Dec. 629, 638

(BIA 2003) (“[T]he record does not reflect that the respondent raised any objections . . . at the

hearing. Therefore, the respondent waived his opportunity to pursue this issue on appeal.”);see also

Matter of Edwards, 20 I&N Dec. 191, 196 n.4 (BIA 1990) (cited in the Board’s Dec. 29, 2006,

decision). Several courts have recognized the validity of the Board’s waiver rule. Pinos-Gonzalez

v. Mukasey, 519 F.3d 436, 440 (8th Cir. 2008); Torres de la Cruz v. Maurer, 483 F.3d 1013, 1022-23

(10th Cir. 2007); Eduard v. Ashcroft, 379 F.3d 182, 195 n.14 (5th Cir. 2004); Ayyoub v. INS, 93 F.

App’x 828, 834 (6th Cir. 2004) (unpublished). As the Tenth Circuit explained in Torres de la Cruz,

“The [Board]’s waiver rule, as with most appellate bodies, is wholly consistent with its rules of

practice.” 483 F.3d at 1023 (citing 8 C.F.R. § 1003.1(d)(1)).

On at least three different occasions the IJ noted that the Xhutis were ineligible for voluntary

departure because they entered the country in July 2001. Not once did the Xhutis specifically object

or argue their legal theory that prior periods of physical presence should be considered. While
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counsel did elicit testimony to support that argument, counsel did not object when the IJ cut off that

line of questioning or argue that the IJ was wrong in his conclusion. In short, when presented with

several opportunities to raise their argument before the IJ, the Xhutisremained silent. Accordingly,

we find that the Board did not abuse its discretion when it concluded that the Xhutis waived their

voluntary-departure claim. As the Board did not abuse its discretion, we will not consider the claim

for the first time on a petition for review. Pinos-Gonzalez, 519 F.3d at 440 (“Where the agency

properly applies its own waiver rule and refuses to consider the merits of an argument that was not

raised in the initial hearing, we will not permit an end run around those discretionary agency

procedures by addressing the argument for the first time in a petition for judicial review.”).

2. Motion to Reopen

As part of their motion, the Xhutis also sought to reopen their application for adjustment of

status. Initially, Mr. Xhuti admitted that he was removable and that the IJ determined that Mrs.

Xhuti was also removable. After the IJ rendered his final decision, the Xhutis sought to adjust their

status to that of lawful permanent residents based on Mrs. Xhuti’s I-140 employment-based visa

petition. They argued before the Board that they had not maintained their lawful nonimmigrant

status based on the erroneous advice of their prior counsel, advice so defective that it rose to the level

of ineffective assistance of counsel.

The Board has set forth procedures that parties must follow in asserting the ineffective

assistance of counsel. As the Board explained in Matter of Lozada, 
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A motion based upon a claim of ineffective assistance of counsel should be

supported by an affidavit of the allegedly aggrieved respondent attesting to the

relevant facts. . . . [T]hat affidavit should include a statement that sets forth in detail

the agreement that was entered into with former counsel with respect to the actions

to be taken on appeal and what counsel did or did not represent to the respondent in

this regard. Furthermore, before allegations of ineffective assistance of former

counsel are presented to the Board, former counsel must be informed of the

allegations and allowed the opportunity to respond. Any subsequent response from

counsel, or report of counsel’s failure or refusal to respond, should be submitted with

the motion. Finally, if it is asserted that prior counsel’s handling of the case involved

a violation of ethical or legal responsibilities, the motion should reflect whether a

complaint has been filed with appropriate disciplinary authorities regarding such

representation, and if not, why not.

The high standard announced here is necessary if we are to have a basis for

assessing the substantial number of claims of ineffective assistance of counsel that

come before the Board.

19 I&N Dec. 637, 639 (BIA 1988). The Board rejected the Xhutis’ ineffective assistance of counsel

claim in its December 29, 2006, decision because it found that they had failed to provide any

evidence that they informed prior counsel of the allegations or that a grievance had been filed with

the appropriate disciplinary authority. In their second motion, the Xhutis provided the documentary

evidence. However, the Board denied their motion because the Xhutis had failed to explain why

they could not have provided the documents earlier.

Mr. Xhuti now argues that the couple met the requirements of Lozada in their first motion

to reopen because they informed the Board that their prior counsel had been notified of the

allegations and that a grievance had been filed. Thus, they should not have been required to provide

evidence of those assertions in the first place, and the Board abused its discretion in denying their

second motion for failing to include the evidence with the first motion.
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The argument suffers from at least three fatal defects. First, the Xhutis failed to argue to the

Board that they were not required to provide evidence of their communication to counsel or their

grievance filed against him. Instead, in their second motion, they argued that they had in fact

provided a copy of the grievance with the first motion even though the record does not reflect this

to be accurate. (They made no mention of whether the email correspondence was included with the

attachments submitted in support of the first motion. The record reflects that copies of the emails

were not attached.) We cannot review a claim raised for the first time in a petition for review.

Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004) (holding “that only claims properly presented

to the [Board] and considered on their merits can be reviewed by this court in an immigration

appeal”).

Second, whether counsel was informed of the allegations and whether a grievance had been

filed are factual matters that the Xhutis would have been required to establish at a new hearing. The

Board’s regulations require that a motion to reopen “state the new facts that will be proven at a

hearing” and, importantly, submit “affidavits or other evidentiary material” to support those factual

statements. 8 C.F.R. § 1003.2(c)(1). They were also required to show that the evidence “was not

available and could not have been discovered or presented” earlier. Id. Thus, under § 1003.2(c)(1),

the Xhutis were required in their first motion to support with evidence their factual assertions that

they had informed their prior counsel of the allegations and had filed a grievance against him. And,

they were required in their second motion not only to provide this evidence (which they appear to

have done) but also to show that the evidence was not available to them during the proceedings on
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the first motion. As the Board explained in its decision on the second motion, the Xhutis failed to

make this latter showing.

This leads to the third problem. While the email correspondence and grievance were

available during the proceedings on the first motion, they were just barely available. The Xhutis

filed their first motion to reopen on July 24, 2006. Nowhere in that motion did they set forth a claim

of ineffective assistance of counsel. Only in their reply brief did they raise the claim. They

submitted their reply brief for filing on September 26, 2006. On September 20, their present counsel

sent an email to their prior counsel stating in a perfunctory manner that the latter gave incorrect

advice to the Xhutis on how to keep in-status. They then filed a grievance against their prior counsel

on September 26, the same day they filed their reply brief. Thus, prior to raising the claim before

the Board, the Xhutis gave their prior counsel six days’ notice of the general allegation against him,

and no prior notice of the specific allegations set forth in the grievance filed with the attorney

grievance commission. This was insufficient time for counsel to respond to the charges in the

grievance. Asaba v. Ashcroft, 377 F.3d 9, 12 (1st Cir. 2004) (holding that three days prior notice of

charges was insufficient time for the attorney to respond under Lozada); see also Nikollbibaj v.

Gonzales, 232 F. App’x 546, 555 (6th Cir. 2007) (unpublished) (“Simply put, two days were not

sufficient to provide Azzam with an opportunity to respond to the ineffective assistance

allegations.”), petition for cert. filed, 76 U.S.L.W. 3583 (U.S. Apr. 14, 2008) (No. 07-1306).

Because Mr. Xhuti has failed to show that the Board abused its discretion by denying the

motion to reopen, we will not reach the merits of the underlying ineffective assistance of counsel

claim. See Nikollbibaj, 232 F. App’x at 560 (Batchelder, J., concurring in part and dissenting in part)
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(explaining that because the petitioners did not comply with Lozada, the majority should not have

gone ahead and reached the merits of their ineffective assistance of counsel claim).

III

Accordingly, we AFFIRM the Board’s May 16, 2007, order and DENY the petition.