In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-3130

EFTIN LABOSKI,

Petitioner,

v.

JOHN D. ASHCROFT,

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A77-753-810

____________

SUBMITTED SEPTEMBER 10, 2004—DECIDED OCTOBER 21, 2004

____________

Before FLAUM, Chief Judge, and POSNER and ROVNER,

Circuit Judges.

FLAUM, Chief Judge. Petitioner Eftin Laboski, a citizen

of Macedonia, petitions this Court for review of an order of

the Board of Immigration Appeals (“BIA”), denying his motion for reconsideration of the dismissal of his administrative appeal. The BIA dismissed the appeal on the ground

that it was untimely. The government now seeks dismissal

of Laboski’s petition for lack of subject matter jurisdiction,

or in the alternative, summary affirmance of the BIA’s decision. For the reasons stated herein, we hold that we have

jurisdiction to review the BIA’s order, and that the BIA did

not abuse its discretion in determining that Laboski’s ap-
2 No. 03-3130

1 As of February 2003, the INS ceased to exist. The Bureau

of Immigration and Customs Enforcement in the new U.S.

Department of Homeland Security now performs the immigration enforcement function that was previously the responsibility of the INS.

peal of the Immigration Judge’s (“IJ’s”) denial of his motion

to reopen his case was untimely. Accordingly, we affirm the

BIA’s denial of Laboski’s motion to reconsider.

I. BACKGROUND

Laboski was admitted to the United States on or about

February 18, 2001, as a non-immigrant visitor, and was authorized to remain in the United States until May 17, 2001.

However, Laboski overstayed his visa and violated its terms

by being employed for wages or other compensation without

the authorization of the Immigration and Naturalization

Service (“INS”).1

 The INS commenced removal proceedings.

On September 10, 2001, the IJ granted Laboski’s motion

for a change of venue from El Paso, Texas to Chicago,

Illinois. On October 4, 2001, the INS mailed Laboski notice

of a hearing scheduled for February 7, 2002. Laboski appeared at that hearing represented by counsel, where he admitted the allegations against him and conceded removability. Although he was scheduled to appear at a subsequent

hearing on September 12, 2002, Laboski did not show up on

that date. The IJ ordered Laboski removed from the United

States in absentia, stating: “The respondent, by failing to

appear at the scheduled hearing, has not established entitlement to any relief from removal and has waived the right

to designate a country of removal under the provisions of

Section 241(b) of the [Immigration and Nationality] Act.”

(A.R. at 41.)

On November 18, 2002, Laboski filed a motion to reopen

the case and rescind the deportation order, claiming that he
No. 03-3130 3

could not confirm his scheduled appearance because of his

inability to communicate with the court and with his counsel. The IJ denied Laboski’s motion to reopen on December

17, 2002, finding that his loss of contact or miscommunication with his attorney did not constitute exceptional circumstances excusing Laboski’s failure to appear at the

hearing. The IJ issued a written decision dated December 17,

2002, which was sent to Laboski’s attorney with a “transmittal letter” of the same date.

On January 17, 2003, Laboski filed a Notice of Appeal

with the BIA, seeking administrative review of the IJ’s denial of his motion to reopen. The BIA dismissed the appeal

as untimely on March 28, 2003. The BIA found that the IJ’s

decision was mailed on December 17, 2002, and therefore,

the Notice of Appeal was due on or before January 16, 2003,

thirty days from the mailing of the IJ’s decision. On April

25, 2003, Laboski moved the BIA to reconsider, asserting

that the IJ’s decision dated December 17, 2002 had not been

mailed to his attorney until December 18, 2002, making

Laboski’s notice of appeal timely. The BIA denied Laboski’s

motion to reconsider on July 15, 2003. Based on its review

of the record, the Board concluded that the December 17,

2002 order was mailed out on that date, and therefore the

Notice of Appeal was due January 16, 2003. Laboski timely

petitioned this Court for review of the denial of the reconsideration motion.

II. DISCUSSION

A. Subject Matter Jurisdiction

The government argues that we should dismiss Laboski’s

petition for lack of subject matter jurisdiction. Specifically,

it contends that, by failing to appeal the IJ’s initial order of

removal, Laboski has not exhausted his administrative

remedies.
4 No. 03-3130

We disagree. To preserve the right to judicial review, an

alien must raise and exhaust his administrative remedies

as to each claim or ground for relief. Capric v. Ashcroft, 355

F.3d 1075, 1087 (7th Cir. 2004). Although Laboski did not

appeal the initial order of removal, he sought review of the

IJ’s denial of his motion to rescind the deportation order and

reopen the case. The BIA first dismissed Laboski’s administrative appeal as untimely on March 28, 2003. Laboski

then moved the BIA to reconsider, arguing that his administrative appeal was in fact timely. However, the Board

denied his reconsideration motion on July 15, 2003. Because

the BIA had ample opportunity to consider Laboski’s argument concerning the timeliness of his appeal, he did not fail

to exhaust his administrative remedies on this issue, and it

is properly before this Court. Moreover, the government

concedes that Laboski timely petitioned this Court to review

the Board’s denial of his motion to reconsider. See 8 U.S.C.

§ 1252(b)(1), (2); cf. Awad v. Ashcroft, 328 F.3d 336, 340 (7th

Cir. 2003) (stating that because the appellant “failed to

raise the stop time issue in her motion to reconsider, she

disregarded the statutory requirement that she exhaust all

administrative remedies before seeking this Court’s review

of the INS decision”); Bosede v. Ashcroft, 309 F.3d 441, 447

(7th Cir. 2002) (stating that before the appellant is entitled

to judicial review, she must file a motion to reopen or a

petition to the INS director to have the agency decide the

issue).

B. Review of BIA Decision

We review the BIA’s denial of Laboski’s motion for reconsideration for abuse of discretion. Awad, 328 F.3d at

341. Our review is limited to “whether the discretion was

actually exercised and whether it was exercised in an

arbitrary or capricious manner.” Nwaokolo v. INS, 314 F.3d

303, 307 (7th Cir. 2002).
No. 03-3130 5

2 The letter itself had several options for the clerk of court

to mark, one of which states: “Attached is a copy of the

decision of the Immigration Judge. This decision is final

unless an appeal is filed with the Board of Immigration

Appeals within 30 calendar days of the date of the mailing

of this written decision.” (A.R. at 32.) This paragraph was

not checked in Laboski’s letter; the paragraph actually

checked states: “Other: Judge Cuevas’ decision dated Dec.

17, 2002 denying motion to re-open.” (Id.)

Laboski argues that the BIA’s denial of his motion for

reconsideration constitutes an abuse of discretion because

the decision contains no rational explanation. It is undisputed,

however, that Laboski had thirty days from the mailing of

the IJ’s decision to file a Notice of Appeal with the BIA. See

8 C.F.R. § 1003.38(b) (“The Notice of Appeal to the Board of

Immigration Appeals of Decision of Immigration Judge

(Form EOIR-26) shall be filed directly with the Board of

Immigration Appeals within 30 calendar days after the stating of an Immigration Judge’s oral decision or the mailing

of an Immigration Judge’s written decision.”); 8 C.F.R.

§ 1003.3(a)(1) (“An appeal is not properly filed unless it is

received at the Board . . . within the time specified in the

governing sections of this chapter.”).

Laboski contends that the BIA’s conclusion that the IJ’s

December 17, 2002 decision was mailed on that date is not

supported by substantial evidence in the record. Laboski

disputes that the document accompanying the decision is a

“transmittal letter,” arguing that the INS form letter did

not have the proper box checked.2

 Laboski has not argued,

however, that he did not receive notice of his right to appeal,

nor does he cite any authority to show that the transmittal

letter in the record was inadequate.

The BIA did not abuse its discretion in refusing to reconsider its denial of Laboski’s appeal. The BIA’s finding

that Laboski failed to file the appeal within the proper time
6 No. 03-3130

period is supported by the record. The IJ’s decision was dated

December 17, 2002. A letter referring to that decision and

identifying Laboski’s case number was signed by the clerk

of court and sent to Laboski’s attorney on the same date.

While Laboski contends that the IJ’s decision was actually

mailed the following day, he points to no evidence to support this contention. Laboski did not submit any affidavits

regarding the date of mailing or receipt of the IJ decision,

nor did he submit a postmark showing a December 18 mailing date. Courts have held in similar circumstances that a

BIA decision is presumed to be mailed on the date of the

transmittal letter, absent evidence to the contrary. See

Haroutunian v. INS, 87 F.3d 374, 375 (9th Cir. 1996) (“[T]he

only proof we have as to when the BIA’s order was mailed

is the cover letter accompanying the order. The cover letter

was dated June 17, 1994, and we presume that the final

order of deportation was mailed on that date.”); KarimianKaklaki v. INS, 997 F.2d 108, 111 (5th Cir. 1993) (“Because

it adequately appears from the record that the BIA decision

was properly mailed to petitioners’ counsel on November 18,

1992, and because there is nothing before us to indicate

otherwise, . . . the date of the BIA decision is controlling.”).

In In re Ali, 21 I. & N. Dec. 1058 (BIA 1997), the case on

which Laboski relies, the BIA did not find petitioner’s motion to reconsider untimely where the record contained no

transmittal letter indicating proof of service of the IJ decision. Id. at 1058 n.1. Because the record in this case contains

evidence of a transmittal letter dated December 17, 2002,

the BIA was correct to conclude that Laboski’s administrative appeal was due on January 16, 2003.

Laboski also contends that the BIA abused its discretion

in denying Laboski’s motion to reconsider because the IJ’s

decision failed to address whether, in light of his inability

to understand English, Laboski received proper notice of

the September 12 hearing and the consequences of failing

to appear at this hearing. We decline to review the merits
No. 03-3130 7

of the IJ’s decision, however, because they are not properly

before us. Laboski’s petition only seeks review of the BIA’s

July 15, 2003 decision denying his motion to reconsider. See

Awe v. Ashcroft, 324 F.3d 509, 514 (7th Cir. 2003) (“Since

our appellate review is limited to the BIA’s final orders of

removal, we decline to look beyond the BIA’s stated, procedural reasons for dismissing Awe’s appeal and will not undertake a review of the merits of Awe’s case as decided by

the IJ.”).

Finally, to the extent that Laboski claims that he was

deprived of effective assistance of counsel during his deportation proceedings, he has waived this claim by raising it for

the first time on appeal. See Mojsilovic v. INS, 156 F.3d

743, 748 (7th Cir. 1998).

III. CONCLUSION

For the foregoing reasons, the decision of the BIA is

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-21-04