UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CECILIA RIVERA,

Petitioner,

v.

No. 96-2489

U.S. IMMIGRATION & NATURALIZATION

SERVICE,

Respondent.

On Petition for Review of an Order

of the Board of Immigration Appeals.

(A73-089-446)

Submitted: August 19, 1997

Decided: September 3, 1997

Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Alberto Manuel Benitez, GEORGE WASHINGTON UNIVERSITY

IMMIGRATION CLINIC, Washington, D.C., for Petitioner. Frank

W. Hunger, Assistant Attorney General, Francesco Isgro, Senior Litigation Counsel, Donald A. Couvillon, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Respondent.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Cecilia Rivera seeks review of the Board of Immigration Appeals'

order denying her motion to reopen her deportation proceedings.

Rivera's hearing was held in absentia as permitted under Immigration

and Nationality Act (INA) § 242B, 8 U.S.C.A.§ 1252b(c)(1) (West

Supp. 1997), in cases where an alien or her counsel receives written

notice of the proceeding, but the alien fails to appear. Because we

conclude that the Board did not abuse its discretion in finding that

Rivera's failure to appear at her deportation hearing was not the result

of exceptional circumstances, we affirm the Board's denial of the

motion to reopen and deny Rivera's petition for review.

Rivera contends that the Board abused its discretion in denying her

motion to reopen and in concluding that she had not shown exceptional circumstances for her failure to appear at her deportation hearing. Rivera claims that she did not appear because she failed to

receive notice of the hearing from her attorney, and that the motion

to reopen should have been granted on that ground.* Additionally,

Rivera alleges that the Board exceeded its powers by addressing

whether counsel provided ineffective assistance when Rivera alleged

attorney inadvertence but did not explicitly raise ineffective assistance

of counsel.

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*Rivera concedes that her counsel received notice, but contends that

the notice should not be imputed to her because she tried to contact counsel several times to no avail, and because counsel told her, almost three

months before the scheduled hearing, that she did not have a hearing date

"soon." Counsel filed an affidavit stating that she mailed to Rivera a copy

of the hearing notice two months before the hearing, advised Rivera to

get new counsel, and included a list of attorneys. Rivera contends that

she did not receive the notice and letter, either through postal error or

because counsel inadvertently failed to send the letter and notice to her.

Rivera, however, acknowledges receipt of a list of attorneys.

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This court reviews the denial of a motion to reopen deportation

proceedings for abuse of discretion. See INS v. Doherty, 502 U.S.

314, 323-24 (1992); Yanez-Popp v. INS, 998 F.2d 231, 234 (4th Cir.

1993). An order of deportation entered in absentia may be rescinded

if the petitioner demonstrates that she failed to appear because of

exceptional circumstances or if the petitioner establishes that she did

not receive proper notice. See INA § 242B(c)(3), 8 U.S.C.A.

§ 1252b(c)(3) (West Supp. 1997).

We find that the Board did not abuse its discretion in determining

that Rivera did not establish exceptional circumstances requiring

rescission of the denial of her motion to reopen. See INA

§ 242B(f)(2), 8 U.S.C.A. § 1252b(f)(2) (West Supp. 1997). Exceptional circumstances are "circumstances (such as serious illness of the

alien or death of an immediate relative of the alien, but not including

less compelling circumstances) beyond the control of the alien." INA

§ 242B(f)(2), 8 U.S.C.A. § 1252b(f)(2). We conclude that Rivera's

claim that she failed to receive notice due to postal error or her attorney's inadvertence does not establish exceptional circumstances. See

id.; see also Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996) (finding

that aliens' traffic difficulties did not constitute exceptional circumstances beyond their control). Further, to the extent that Rivera contends that she did not receive proper notice of her deportation

hearings, we determine that the Board properly found that Rivera

received proper notice when her attorney received notice by certified

mail. See 8 C.F.R. § 292.5(a) (1997) (requiring notice to be served on

attorney, if alien is represented); see also INA § 242B(a)(2), (c)(1),

8 U.S.C.A. § 1252b(a)(2), (c)(1) (West Supp. 1997).

Additionally, to the extent that Rivera contends that the Board

abused its powers by analyzing her claim that her attorney's inadvertence created exceptional circumstances as an ineffective assistance

claim when she did not explicitly raise the issue on appeal, we find

no abuse. See 8 C.F.R. § 3.1(d)(1) (1997). Because the Board concluded that Rivera's allegations of postal error and attorney inadvertence were not sufficient to establish exceptional circumstances, we

conclude that the Board's analysis of her attorney inadvertence claim

as an ineffective assistance of counsel claim was appropriate and necessary, see 8 C.F.R. § 3.1(d)(1) (1997) (stating that the Board has discretion and authority as appropriate and necessary for disposition of

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case), because a showing of ineffective assistance may establish

exceptional circumstances, see In re Grijalva , Interim Dec. 3284, slip

op. at 3-4 (BIA June 14, 1996) (finding alien's failure to appear

because of ineffective assistance of counsel sufficient to rescind in

absentia order of deportation).

Accordingly, we affirm the Board's denial of Rivera's motion to

reopen and deny Rivera's petition for review. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the

decisional process.

AFFIRMED

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