FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

August 2, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-16920

Non-Argument Calendar

________________________

BIA No. A79-399-389

HUSSAM CHAHIN, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(August 2, 2006)

Before DUBINA, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
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Petitioner Hussam Chahin, a citizen and native of Syria, through counsel,

petitions for review of the Board of Immigration Appeals (“BIA’s”) decision

affirming the Immigration Judge’s (“IJ’s”) final removal order and denial of

Chahin’s motion to reopen his asylum hearing. Chahin missed his scheduled

March 14, 2005, asylum hearing, and it is his reasons as to why he missed the

hearing that are the subject of the instant petition. 

In his petition, Chahin argues that he suffered from ineffective assistance of

counsel because, over the four-year course of their relationship, his attorney always

had provided him with prior notice of his immigration hearings, so he expected to

hear from his attorney regarding the hearing that he missed. He contends that, his

failure to appear was understandable due to the facts that (1) shortly before the

hearing, he and his family had to change residences; and (2) because of that

change, his former attorney claimed that he was unable to get in touch with them. 

“In this Circuit, we review the [IJ]'s denial of a motion to reopen removal

proceedings for abuse of discretion.” Dakane v. U.S. Att'y Gen., 399 F.3d 1269,

1272 n.2 (11th Cir 2005). “We review only the [BIA’s] decision, except to the

extent that it expressly adopts the IJ’s opinion. Insofar as the Board adopts the IJ’s

reasoning, we will review the IJ’s decision as well.” Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001) (citations omitted). Here, because the BIA adopted

the IJ’s decision, but also provided its own analysis for why the IJ was correct, we
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review the reasoning of both the BIA and the IJ. See id.

Any alien, who, after written notice has been provided, does not attend a

proceeding, shall be ordered removed in absentia if the Immigration and

Naturalization Service (“INS”) establishes by “clear, unequivocal, and convincing

evidence” that it gave written notice and the alien was removable. INA §

240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). An in absentia removal order may be

rescinded if, within 180 days of the order, the alien moves to reopen,

demonstrating that the failure to appear was because of exceptional circumstances.

INA § 240(b)(5)(C), 8 U.S.C. § 1229a(b)(5)(C). Exceptional circumstances

include circumstances beyond the control of the alien, such as serious illness of the

alien, or serious illness or death of the alien's spouse, child, or parent, but do not

include less compelling circumstances. INA § 240(e), 8 U.S.C. § 1229a(e).

Incompetent representation by counsel can qualify as an “exceptional

circumstance.” Saakian v. I.N.S., 252 F.3d 21, 25 (1st Cir. 2001). 

Pursuant to the Fifth Amendment Due Process Clause, aliens enjoy the right

to a fundamentally fair hearing with effective assistance of counsel. Dakane, 399

F.3d at 1273. A petitioner claiming ineffective assistance must demonstrate

prejudice. Dakane, 399 F.3d at 1274. “Prejudice exists when the performance of

counsel is so inadequate that there is a reasonable probability that but for the

attorney's error, the outcome of the proceedings would have been different.” Id. 
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Because Chahin has abandoned his argument, raised before the IJ, that the

stress of his move was the cause of him missing his removal hearing, and he has

failed to satisfy the prejudice component of his ineffective assistance of counsel

claim, we conclude that the BIA did not err by affirming the IJ’s denial of Chahin’s

motion to reopen and rescind the removal order. We therefore deny his petition on

this ground. 

Chahin also argues that his wife, who suffers from depression and anxiety,

was ill, and that illness was the cause of his failure to attend the hearing, which,

although brought up in his pro se motion to reopen, was not considered either by

the IJ or the BIA in their denials of his motion. 

We are obligated to inquire into subject-matter jurisdiction whenever it may

be lacking. Chacon-Botero v. U.S. Att'y Gen., 427 F.3d 954, 956 (11th Cir. 2005). 

“The exhaustion requirement applicable to immigration cases is found in 8 U.S.C.

§ 1252(d)(1), which provides that '[a] court may review a final order of removal

only if . . . the alien has exhausted all administrative remedies available to the alien

as of right.’” Sundar v. I.N.S., 328 F.3d 1320, 1323 (11th Cir. 2003). We have

“interpreted that requirement to be jurisdictional, so we lack jurisdiction to

consider claims that have not been raised before the BIA.” Id.

After reviewing the record, we conclude that we do not have jurisdiction to

review Chahin’s claim that his wife’s illness was an exceptional circumstance
We DENY Chahin’s motion to supplement the record as moot. 1

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justifying his failure to attend the hearing because it was not clearly raised below. 

Accordingly, Chahin’s petition is dismissed on this ground. For the above-stated

reasons, we deny the petition in part, and dismiss it in part.

PETITION DENIED IN PART, DISMISSED IN PART.1