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Sembhi v. Sessions

United States Court of Appeals, Seventh Circuit

July 31, 2018

Manjit Singh Sembhi, Petitioner,
Jefferson B. Sessions III, Attorney General of the United States, Respondent.

          Argued February 14, 2018

          Petition for Review of an Order of The Board of Immigration Appeals No. A076-726-625

          Before Easterbrook and Rovner, Circuit Judges, and Griesbach, District Judge. [*]

          Rovner, Circuit Judge.

         When Manjit Singh Sembhi failed to appear for an October 2001 hearing in his removal proceeding, the immigration judge ordered him removed to his home country of India. More than 10 years later, Sembhi filed a motion to reopen and rescind the in absentia removal order, which the immigration judge denied. Sembhi then sought relief, unsuccessfully, from the Board of Immigration Appeals. After a total of five adverse decisions from the Board, Sembhi now faces the unenviable task of convincing us that the Board abused its discretion in denying his third motion to reconsider and fifth motion to reopen, with the latter being presumptively barred in both number and time. Finding no error in the Board's latest decision that would warrant a remand, we deny Sembhi's petition for review.


         Sembhi, a native and citizen of India, entered the United States in 1995 as a non-immigrant visitor and subsequently overstayed his visa. Two years later, after he was unsuccessful in seeking asylum from an Immigration and Naturalization Service officer, Sembhi was served with a notice to appear charging him with being removable from the country for want of authorization to remain here. Initially, it was Sembhi's expectation that he would be able to obtain an I-130 visa based on his marriage to a U.S. citizen, and with such a visa in hand he would be able to seek adjustment of status. But when Sembhi appeared before an immigration judge for a hearing in August 2001, his counsel reported that his wife had obtained a default judgment of divorce against Sembhi earlier that year, rendering him ineligible for adjustment of status. Sembhi's counsel, Justin Burton, indicated to the judge that Sembhi intended to explore the possibility of vacating the divorce judgment and, in the alternative, apply for cancellation of removal as an allegedly battered spouse or, failing that, to seek voluntary departure from the country. The judge put the matter over to October 10, 2001, in order to permit Sembhi and his counsel to pursue these possibilities.

         When the hearing convened on October 10, Burton was present but Sembhi was not. Burton advised the judge that he had not communicated with his client in several weeks despite attempts to contact him but that Sembhi was on notice of the court date. Agreeing that Sembhi had received both written and oral notice of the October 10 hearing, the judge proceeded with the hearing in absentia, and, noting that Sembhi had previously conceded his removability and by virtue of his absence had effectively abandoned any requests for relief from removal, ordered Sembhi removed to India.

         More than ten years later, in August 2012, Sembhi, now represented by attorney Sakina Carbide, filed a motion with the immigration judge seeking to reopen and rescind the in absentia removal order. Sembhi placed the blame for his failure to appear at the October 2001 hearing squarely on the attorney representing him at that time: Burton.[1] Burton, Sembhi alleged, had not given him advance notice of the hearing and had made statements leading Sembhi to believe that he need not appear at that hearing; and once the judge ordered him removed in absentia, Burton had failed to inform Sembhi of that order, thus preventing him from filing a timely motion to reopen. Sembhi contended that Burton's ineffective assistance in these respects constituted an "exceptional circumstance[ ]" warranting (belated) rescission of the removal order. See 8 U.S.C. § 1229a(b)(5)(C)(i) (rescission of in absentia removal order requires alien to demonstrate that his failure to appear was due to "exceptional circumstances"); § 1229a(e)(1) (defining "exceptional circumstances" to include circumstances beyond control of alien which are as compelling as extreme cruelty to alien, his child, or parent; serious illness of alien; or serious illness or death of alien's spouse, child, or parent).

         The immigration judge denied Sembhi's request. The judge pointed out that Sembhi had been present in court in August 2001, when the October hearing was scheduled, and had received both oral and written notice of that hearing. To the extent he was seeking to reopen the proceeding based on his previous attorney's ineffectiveness, the judge noted that Sembhi had "provided no evidence of [his] compliance with any aspect of the[ ] requirements" that Matter of Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988), overruling vacated by Matter of Compean, 25 I. & N. Dec. 1 (B.I.A. 2009), specifies for such claims. A.R. 882. Lozada requires: (1) that the motion be supported by an affidavit from the respondent setting forth in detail the agreement that he entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in that regard; (2) that counsel be informed of the allegations leveled against him and be given an opportunity to respond; and (3) that the motion reflect whether a complaint has been filed with the appropriate disciplinary authority as to any violation of counsel's ethical or legal responsibilities, and if not, why not. Id.

         Sembhi appealed the immigration judge's decision to the Board, which dismissed the appeal. Contrary to what he had represented to the immigration judge, Sembhi acknowledged to the Board that his attorney had informed him orally of the hearing date and that Sembhi mistakenly understood (perhaps due to language difficulties) that the hearing was scheduled for October 12 rather than October 10. Sembhi also acknowledged that when he appeared in his attorney's office on October 12, counsel did timely inform him of the in absentia removal order but added that there was nothing he could do about that order.

         The Board was satisfied that the record supported the immigration judge's finding that Sembhi had both oral and written notice of the October 2001 hearing but nonetheless failed to appear. In that regard, the Board pointed out that Sembhi now admitted that his attorney did inform him of the October hearing date but said that he thought the hearing was set for October 12 rather than October 10. In the Board's view, a mistake in Sembhi's mind as to the hearing date did not constitute an exceptional circumstance excusing his absence. And even if it might so qualify, Sembhi had filed his motion to reopen and rescind the removal order more than 10 years after the fact, far beyond the 180 days that the statute allowed for a motion to reopen the removal order. See 8 U.S.C. § 1229a(b)(5)(C)(i). Because, as Sembhi now acknowledged, he was aware of the removal order in 2001, the Board saw no basis for equitable tolling of the 180-day time limit.

         Over two years later, early in 2016, Sembhi presented the Board with a second motion to reopen, returning to a version of events that placed the blame for both his absence at the October 2001 hearing and his failure to timely challenge the in absentia removal order on attorney Burton. (Sembhi now alleged that Burton had misinformed him that the hearing was scheduled for October 12, and, after Sembhi failed to appear on October 10, advised him there was nothing he could do about the removal order and that he would have to leave the United States.) By the time he filed this second motion, Sembhi had been married to another U.S. citizen for more than 10 years, and the I-130 visa petition she had filed on his behalf had been approved. But for the removal order, Sembhi would have the opportunity to have his status adjusted, just as he had before his first marriage broke up. Sembhi contended, inter alia, that the approval of his I-130 visa and his prospective eligibility for adjustment of status constituted new evidence and a change of circumstances warranting reopening of the removal proceeding.

         The Board, in denying this second motion, indicated that it would not revisit Sembhi's claimed lack of notice of the October 2001 hearing or his attorney's alleged misconduct, "as a motion to reopen is not an opportunity to repeat previously-considered arguments." A.R. 416. The Board did add, however, that to the extent Sembhi meant to advance a new claim of attorney ineffectiveness, he had neither "meaningfully raised" such a claim, nor had he complied with the requirements of Lozada for such claims. A.R. 416. (The Board had more to say in its order regarding the equities ...

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