LE

                                                                  Interim Decision #3356




                       In re Guo Yu LEI, Respondent

                         File A42 733 363 - San Francisco

                                 Decided July 16, 1998


                            U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals


     A claim of ineffective assistance of counsel does not constitute an exception to the
180-day statutory limit for the filing of a motion to reopen to rescind an in absentia order of
deportation under section 242B(c)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §
1252b(c)(3)(A) (1994), on the basis of exceptional circumstances.

Nancy A. Fellom, Esquire, San Francisco, California, for the respondent

James S. Stolley, Jr., Assistant District Counsel, for the Immigration and Naturalization
Service

Before:   Board En Banc: VACCA, HEILMAN, HOLMES, HURWITZ, FILPPU, COLE,
          MATHON, JONES, and GRANT, Board Members. Concurring and Dissenting
          Opinions: ROSENBERG, Board Member; GUENDELSBERGER, Board
          Member. Dissenting Opinions: SCHMIDT, Chairman; VILLAGELIU, Board
          Member.

MATHON, Board Member:

     In a decision dated September 14, 1995, an Immigration Judge ordered
the respondent deported in absentia after he failed to appear for his scheduled hearing. On September 26, 1995, the respondent filed a motion to
reopen, which was denied by the Immigration Judge. The Board affirmed
the Immigration Judge’s decision on April 30, 1996, and on September 30,
1996, the respondent filed this motion to reopen with the Board. The motion
will be denied.


                            I. PROCEDURAL HISTORY

     The record reflects that the respondent and his first attorney appeared

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at a hearing before the Immigration Judge on January 31, 1995. He conceded deportability on the charge under section 241(a)(1)(D)(i) of the
Immigration and Nationality Act, 

(a)(1)(D)(i) (1994), but
denied the remaining charges against him. The continued hearing was
originally set for October 10, 1995, and the respondent’s attorney was
personally served with the notice of hearing in court. However, the hearing was later rescheduled for September 14, 1995. Notice of the rescheduled hearing was sent to the respondent’s attorney of record by certified
mail, and the signed certified mail receipt is included in the record.
However, neither the respondent nor his attorney appeared for the
September 14, 1995, hearing, and the Immigration Judge ordered the
respondent deported in absentia pursuant to section 242B(c)(3) of the Act,
8 U.S.C. § 1252b(c) (1994).
     On September 26, 1995, the respondent, through the same attorney,
filed a motion to reopen requesting rescission of the in absentia deportation
order under section 242B(c)(3)(B) of the Act, alleging that neither he nor
his attorney received notice of the rescheduled hearing. On November 27,
1995, the Immigration Judge denied the motion after determining that sufficient notice had been provided to counsel in accordance with section
242B(a)(2) of the Act. See also 

(a) (1995) (providing that
notice to counsel constitutes notice to the alien). The respondent timely
appealed the Immigration Judge’s decision, reiterating his lack of notice
claim. On April 30, 1996, the Board dismissed the respondent’s appeal.1
     On September 30, 1996, the respondent, through new counsel, filed
a motion to reopen with the Board. He now contends that his original failure to appear was due to “exceptional circumstances” under section
242B(c)(3)(A) of the Act.2 The respondent concedes that the time limit for
filing a motion seeking rescission of an in absentia deportation order on
such a basis has expired. However, he contends that the time bar should not
apply in this case, given the fact that the failure to timely file was due to the
ineffective assistance of his former attorney. Specifically, he argues that due
to his former attorney’s lack of familiarity with immigration law, she failed
to recognize the potential “exceptional circumstances” claim within the
statutory time limit for such motions.



     1
        The decision was affirmed with regard to the issue of lack of notice. However, we
rejected that part of the Immigration Judge’s decision which required the respondent to
demonstrate prima facie eligibility for relief.
      2
        Specifically, the respondent claims that his attorney’s failure to provide him with
notice of the hearing constituted ineffective assistance of counsel. Most of the respondent’s
motion is devoted to discussing whether the attorney’s failure to notify the respondent can be
considered an “exceptional circumstance” excusing his failure to appear. However, due to our
disposition in this case, we do not reach the substance of the respondent’s motion.


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                               II. ISSUE PRESENTED

    The issue before the Board is whether a claim of ineffective assistance
of counsel constitutes an exception to the 180-day time limit under section
242B(c)(3)(A) of the Act.


                               III. APPLICABLE LAW

     Section 242B(c)(3) of the Act provides for the rescission of a deportation order entered in absentia under section 242B(c)(1) as follows:

   RESCISSION OF ORDER. — Such an order may be rescinded only —
   (A) upon a motion to reopen filed within 180 days after the date of the order of deportation if the alien demonstrates that the failure to appear was because of exceptional
   circumstances (as defined in subsection (f)(2)), or

   (B) upon a motion to reopen filed at any time if the alien demonstrates that the alien
   did not receive notice in accordance with subsection (a)(2) or the alien demonstrates
   that the alien was in Federal or State custody and did not appear through no fault of
   the alien.

Section 242B(c)(3) of the Act.
    The use of the term “only” makes this the exclusive method for rescinding an in absentia deportation order entered pursuant to section 242B(c) of
the Act. See Matter of Gonzalez-Lopez, 

 (BIA 1993).


                                     IV. ANALYSIS

    Section 242B(c)(3)(A) of the Act expressly requires that a motion to
reopen based on exceptional circumstances be filed within 180 days of the
in absentia order. The record in this case reflects that the order of deportation was entered on September 14, 1995. The respondent did not file his
current motion until September 30, 1996, well beyond the 180 days allotted
by the statute. Therefore, we find that the respondent is statutorily barred
from rescinding the deportation order under section 242B(c)(3)(A).3
    The respondent concedes that the time limit for filing a motion to
reopen to rescind based upon exceptional circumstances has elapsed.
However, he essentially urges us to create an exception to the 180-day rule,

      3
       We acknowledge that the respondent’s motion to reopen is timely under the regulations
at 

 (1997), but we note that the issue of timeliness of the motion is governed by
section 242B of the Act and not by the general regulations regarding motions found at 

, 3.23, and 242.22 (1997).

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Interim Decision #3356


where the failure to timely file a motion to reopen is due to ineffective assistance of counsel. We decline to do so.
     It is well settled that the language of the statute is the starting point of
statutory construction. See INS v. Cardoza-Fonseca, 

(1987). The plain meaning of the words used in the statute as a whole has
been held to be the paramount index of congressional intent. 

;
Matter of W-F-, 

 (BIA 1996), Moreover, it is
assumed that the legislative purpose is expressed by the ordinary meaning
of the words used. INS v. Phinpathya, 

 (1984); see also
Matter of Shaar, 

 (BIA 1996), aff’d, 

 (9th Cir.
1998),
     The language of section 242B(c)(3)(A) regarding the time limit within
which a motion to reopen must be filed is clear on its face and unambiguous. It provides that an in absentia deportation order entered pursuant to
section 242B(c) may be rescinded “only upon a motion to reopen filed within 180 days after the date of the order of deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances.”
Section 242B(c)(3)(A) of the Act (emphasis added). The statute contains no
exceptions to this time bar. Where the statutory language is clear, “that is
the end of the matter” and we “must give effect to the unambiguously
expressed intent of Congress.” Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 

 (1984); see also Matter of W-F-,
supra, at 506. Accordingly, we are bound to uphold and apply the plain
meaning of the statute as written. Had Congress intended to provide for an
exception to the 180-day time limit based on the ineffective assistance of
counsel, it could have done so.
     This conclusion is consistent with the overall statutory scheme of section 242B of the Act. Section 242B was added to the Act by section 545(a)
of the Immigration Act of 1990, 

 Stat. 4978, 5061-
65 (enacted Nov. 29, 1990). See generally Matter of Gonzalez-Lopez, supra.
It was enacted to provide stricter and more comprehensive deportation procedures, particularly for in absentia hearings, to ensure that proceedings are
brought to a conclusion with meaningful consequences. See Matter of
Grijalva, 

 (BIA 1995); Matter of Villalba, 

, at 847 n.2 (BIA 1997); 136 Cong. Rec. S17,109 (daily ed. Oct.
26, 1990); 136 Cong. Rec. H8630 (daily ed. Oct. 2, 1990). The 180-day
time limit reflects congressional intent to bring finality to in absentia deportation proceedings.
     Therefore, given that the statute is explicit in its requirement that a
motion to reopen based on exceptional circumstances must be filed within
180 days of the in absentia order, and considering the legislative history of
section 242B of the Act, we conclude that a claim of ineffective assistance
of counsel is not an exception to the 180-day time limit imposed by section
242B(c)(3)(A) of the Act.

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                                  V. CONCLUSION

     Accordingly, we find the respondent is statutorily barred from rescinding the order of deportation based on “exceptional circumstances” pursuant
to section 242B(c)(3)(A) of the Act, regardless of whether he can demonstrate that his failure to timely file the motion is attributable to ineffective
assistance of counsel.4
     ORDER: The respondent’s motion to reopen is denied.
Vice Chairman Mary Maguire Dunne and Board Member Lori L. Scialabba
did not participate in the decision in this case.

CONCURRING AND DISSENTING OPINION: Lory D. Rosenberg, Board
Member

     I concur in part and dissent in part.
     Our obligation to enforce the terms of section 242B of the Immigration
and Nationality Act, 8 U.S.C. § 1252b (1994), does not require us to enforce
section 242B and its subsections narrowly and restrictively, and it does not
preclude us from enforcing section 242B in its entirety, and consistently
with the United States Constitution, guided by fairness and compassion. To
the contrary. I agree with the majority that we are bound to uphold the
statute as written. I cannot agree, however, that the majority’s reading and
interpretation of section 242B is true to the terms of the statute, consonant
with constitutional due process protections, or consistent with agency
precedent and authority.
     The respondent in this case was represented by counsel and was present in court on January 31, 1995, with his attorney. The Immigration Judge
continued the hearing and set October 10, 1995, as the next date on which
the respondent was to appear before the Immigration Court. Then, something happened that the respondent had no reason to anticipate: 3 months
later, on April 27, 1995, the Immigration Court sent a notice by certified
mail to the respondent’s attorney, rescheduling the hearing from October
10, 1995, to September 14, 1995. The respondent never received any notification that his continued hearing date had been canceled, and that he was
expected to appear on a rescheduled date prior to the originally continued
date, because that notice was sent only to his attorney, who never notified
the respondent of the rescheduled date.
     Twelve days after the Immigration Judge conducted the continued


      4
       Given our holding in this case, we need not address whether the respondent has satisfied the criteria set forth in Matter of Lozada, 

 (BIA 1988), for claims of
ineffective assistance of counsel.

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Interim Decision #3356


deportation hearing on September 14, 1995, in absentia, the respondent’s
former attorney filed a “motion to reopen,” contending in a declaration that
she had not received (actual) notice of the rescheduled hearing and that
there was the “possibility of having confusion.” Compare section
242B(c)(3)(A) of the Act (involving exceptional circumstances that prevented a respondent’s appearance, requiring filing of such a motion within
180 days), with section 242B(c)(3)(B) (involving failure of proper notice
that prevented a respondent’s appearance, specifying that such a motion
may be filed at any time). When the Immigration Judge denied that motion
2 months later, the respondent appealed, and when a panel of the Board
upheld the denial 5 months after that, more than 180 days had passed. The
respondent, through present counsel, filed a second motion under section
242B(c)(3), which is the subject of our decision today.
     Although the respondent’s former attorney did not assert previously
that “exceptional circumstances” existed for the respondent’s failure to
appear, she admits, in the motion to reopen now before us filed by present
counsel, that she was unfamiliar with the requirements of section 242B and
did not prepare an adequate motion prior to the expiration of the 180-day
period. The respondent’s former attorney apparently failed to understand
that the plain language of the statute had never been interpreted by the
Board to grant a hearing to an alien who had not personally received notice
of a rescheduled hearing, despite the language of section 242B(c)(3)(B),
and she provided no claim or argument in favor of such a construction. She
apparently was unaware of, or ignored, the regulations at 

(a) (1995), which provide that when a respondent is subject to any
requirement of the Act, service on counsel of record satisfies service on the
respondent.
     She must not have known, or failed to understand, that she was deemed
to have been given notice under our precedent decision in Matter of
Grijalva, 

 (BIA 1995), since notice of the rescheduled hearing had been sent to her by certified mail. Cf. Matter of Huete, 

 (BIA 1991). She therefore failed to address the fact that the responsibility to notify the respondent was hers alone, whether she received actual
notice or not. Finally, former counsel apparently did not understand that,
although a claim of inadequate notice was not time-barred, a claim of
exceptional circumstances had to be made within 180 days, and prudence
dictated that such a motion be filed.
     A deportation or removal hearing often involves an individual’s potential separation from family, home, employment, and community, and, in
some cases, his or her very freedom and liberty. The respondent did not
receive notice of his rescheduled, continued deportation hearing and then
did not seek to rescind the resulting in absentia deportation order on “exceptional circumstances” grounds within the 180-day time period provided by
statute due to circumstances entirely beyond his control. He should not be

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denied his day in court unless absolutely mandated or voluntarily waived.
     The Board has long frowned upon the ready dismissal of a respondent’s
claims based on technicalities. See Matter of Martinez-Solis, 

 (BIA 1972) (holding that a contested deportation hearing is a “quest
for truth,” not a sporting event); Matter of K-H-C-, 

, 314
(BIA 1953). The propriety of an in absentia deportation order in response
to the respondent’s failure to appear must be based on the totality of the factual circumstances, in the context of all of the statutory provisions pertaining to issuance of in absentia deportation orders and related constitutional
due process protections.1 See Matter of J-P-, 

 (BIA 1998).
     Comparing sections 242B(c)(1) and 242B(c)(3)(A) and (B) of the Act,
I find that the language of these subsections of the statute provides three
related, but independent bases that support sustaining the respondent’s
appeal and granting his motion to reopen. First, the respondent did not
“receive notice in accordance with section (a)(2)” as required by the statute.
Section 242B(c)(3)(B) of the Act. Second, the respondent’s former attorney
failed to provide him with proper notice as contemplated by the statute, regulations, administrative precedent, and generally accepted principles of
effective representation in the context of an attorney-client relationship.
Third, the attorney’s obvious unfamiliarity or disregard of the provisions of
section 242B pertaining to notice and “exceptional circumstances,” and her
failure to comply with the Board’s requirements for establishing (her own)
ineffective assistance of counsel and the statute’s requirements for rescinding an in absentia deportation order under section 242B(c)(3)(A) by filing
a timely motion to reopen on those grounds, is ineffective assistance of
counsel that constitutes “exceptional circumstances.”
     Nevertheless, the majority declines to consider the motion before us as
a “notice” motion as well as an “exceptional circumstances” motion under
section 242B(c)(3) of the Act, despite the fact that it is premised both on the
former attorney’s ineffective counsel for failing to inform the respondent of
his rescheduled hearing date, and on later failing to file a motion within 180
days to rescind the resulting deportation order. Furthermore, although it is
clear that the attorney’s failure to comply with the statutory deadline compounds her ineffective assistance (in not notifying the respondent of the
rescheduled hearing date for which a certified mail receipt was signed by


      1
       Deportation proceedings involve the potential deprivation of a significant liberty interest and must be conducted according to the principles of fundamental fairness and substantial
justice. See Landon v. Plasencia, 

 (1982); Goldberg v. Kelly, 

(1970); Bridges v. Wixon, 

 (1945) (stating that deportation “visits a great
hardship on the individual. . . . Meticulous care must be exercised lest the procedure by which
he is deprived of that liberty not meet the essential standards of fairness.”); see also INS v.
Cardoza-Fonseca, 

 (1987); Harisiades v. Shaughnessy, 

(1952); Ng Fung Ho v. White, 

 (1922),

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her office staff), the majority construes such circumstances as absolutely
impeding the respondent’s ability to invoke the statute’s “exceptional circumstances” ground as a basis for rescinding the in absentia order.
    The majority’s interpretation of the statute is contrary to principles of
equity and is not a reasonable interpretation of the provision, as it forecloses any remedy for a respondent who exercised his right to counsel, but was
the victim of ineffective assistance that both violated his basic right of
notice and ignored the statute’s jurisdictional requirements. This result is
contrary to the statutory language and the guarantee of fairness and due
process of law in deportation proceedings. Consequently, I dissent.


I. FUNDAMENTAL FAIRNESS AND CONTROLLING CIRCUIT LAW

     Our role in conducting rather than foreclosing hearings is emphasized
by the United States Court of Appeals for the Ninth Circuit, in which this
case arises, and is viewed as furthering the interests of due process. See
Baires v. INS, 

 (9th Cir. 1988). Furthermore, other circuit
courts of appeals that have addressed access to a deportation hearing under
section 242B of the Act have indicated a concern with the Board’s unnecessarily narrow, literal reading of the statutory in absentia provisions. See,
e.g., Romero-Morales v. INS, 

 (2d Cir. 1994) (finding the
Immigration Judge’s “failure to examine the particulars of the case before
him” in the context of “either issuing the in absentia ruling or denying the
motion to reopen,” which the Board affirmed, “disquieting”),
     It is well established that “[a]n alien is entitled to due process under the
Fifth Amendment in his deportation hearing.” Rios-Berrios v. INS, 

 (9th Cir. 1985) (citing United States v. Barraza-Leon, 

 (9th Cir. 1978)).2 In Sharma v. INS, 

 (9th Cir.
1996), the Ninth Circuit reaffirmed that “[d]ue process, in deportation proceedings, ‘includes the right to a full and fair hearing.’ Getachew v. INS, 25


      2
        Let there be no mistake that, although we may not rule on he constitutionality of the
statute we administer, the Board is authorized and expected to take due process considerations
into account and to construe the statute to achieve a constitutional reading of its provisions.
See, e.g., Matter of G-, 

 (BIA 1993) (requiring administrative proceedings to conform to “basic notions of fundamental fairness”) (citing Hariasides v.
Shaughnessy, 

 (1952)); Matter of Hernandez-Puente, 

(BIA 1991)(recognizing our authority to enforce an alien’s procedural rights through determinations affecting deportability, discretionary relief, or other benefits under the Act); Matter
of Silva, 

 (BIA 1976) (exercising authority to adopt a construction of the
statute that would ensure equal treatment of similarly situated aliens); see also Yeung v. INS,

 (11th Cir. 1995); cf. Matter of Cenatice, 

 (BIA 1977) (stating
that the Board does not rule upon the constitutionality of the statutes we apply in our adjudications).

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                                                                    Interim Decision #

, 845 (9th Cir. 1994). Petitioners cannot complain of an order
entered in absentia, however, if they ‘voluntarily choose not to attend a
deportation hearing which may affect [them] adversely.’ United States v.
Dekermenjian, 

 (9th Cir.1974).” (Emphasis added.)
     The right to be present at one’s deportation hearing arises from the
statutory language and from due process considerations that involve issues
of personal liberty.3 It also is related to the concern for reliability in deportation proceedings, which often involve highly complex facts regarding a
respondent’s attributes and activities and require the respondent’s testimony to properly adjudicate the case. See, e.g., Purba v. INS, 

 (9th Cir. 1989) (holding that the statutory language of section
242(b), combined with significance of credibility determinations in deportation matters, supports a bright-line rule requiring physical presence before
the Immigration Judge). In addition, although a respondent has no Sixth
Amendment right to appointment of counsel at government expense, “due
process mandates that he is entitled to counsel of his own choice at his own
expense under terms of the Immigration and Nationality Act.” Rios-Berrios
v. INS, supra, at 861. As the Ninth Circuit has recognized, “Section 292 of
the Act, 

 (1982), makes that privilege explicit.” Id.; see
also section 292 of the Act.
     It is difficult to imagine what could be more prejudicial to a respondent
charged with being deportable from the United States than denial of an
opportunity to be present at his deportation hearing where he might provide
any defenses to the charges against him, or advance any claims he may have
for relief from deportation. See Iris Gomez, The Consequences of
Nonappearance: Interpreting New Section 242B of the Immigration and
Nationality Act, 

, 107-08 (1993); section 242(b) of
the Act, 

(b) (1994);4 see also Maldonado-Perez v. INS, 

 (D.C. Cir. 1989) (holding that the Act implements constitutional requirements of a fair hearing).
     Once an alien has been ordered deported in absentia, section
242B(c)(3) permits only two grounds for rescinding the order: either that
the alien did not receive proper notice, or that certain defined “exceptional


      3
        The right to appear is an essential liberty interest that may attach in the civil context.
See, e.g., Califano v. Yamasaki, 

 (1979) (extending the right to an oral hearing to
social security overpayment recoupment proceedings); Gagnon v. Scarpelli, 

(1973) (implying the right to be present in probation revocation proceedings); Morrissey v.
Brewer, 

 (1972) (applying the right to be present in a parole revocation hearing);
Specht v. Patterson, 

 (1967) (upholding the right to be present in commitment
proceedings).
      4
        While section 242B of the Act contains specific provisions allowing an Immigration
Judge to conduct a deportation proceeding in absentia, it did not repeal or replace the “reasonable” opportunity to be present found in section 242(b), See Sharma v. INS, supra, at 548.

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circumstances” exist. The essence of a motion to reopen to rescind an in
absentia order is that it is a request for discretionary action — as an exception to allowing an in absentia order to stand — in order to resolve a case
fairly and justly. See section 242B(c)(3) (stating that an in absentia order
“may be rescinded” only upon a showing that the “alien did not receive
notice” or of “exceptional circumstances”) (emphasis added). Such discretionary exceptions to the in absentia rule ensure that a deportation order is
not issued in violation of the universally accepted principle of notice and an
opportunity to be heard, and they favor individual consideration, not a blanket prohibition such as that contained in the majority opinion.
     In my view, the majority errs in concluding that, under the terms of the
statute, we do not have any latitude to find that an attorney’s failure to notify the respondent to appear, followed by her failure to file a timely motion
asserting exceptional circumstances attributable to such conduct, constitutes ineffective assistance of counsel amounting to a prejudicial violation
of due process, which we may remedy by rescinding the deportation order
and reopening the proceedings. Baires v. INS, supra, at 91 (holding that
administrative expediency must give way to protection of fundamental
rights); Matter of W-F-, 

 (BIA 1996) (Rosenberg, concurring and dissenting), In Rios-Berrios v. INS, supra, at 863-64, the Ninth
Circuit stated, “We are not in favor of an agency treating the statutes and
regulations by which it is governed as casually as it viewed them here. We
will continue to take a close look at a claim such as that raised by petitioner, especially where so fundamental a question as right to counsel of one’s
choice is concerned.” These principles are equally applicable to “so fundamental a question as” a respondent’s right to notice and to be present at his
deportation hearing.


             II. STATUTORY GROUNDS FOR GRANTING
                    THE RESPONDENT’S MOTION

     In addition to the constitutional considerations addressed above, my
reasons for dissenting in light of the statutory language are threefold. First,
I disagree with the majority’s limited treatment of the motion before us as
subject to the 180-day deadline under section 242B(c)(3)(A) of the Act,
when it has been demonstrated that the respondent did not receive notice,
under section 242B(c)(3)(B), which authorizes granting a motion to reopen
based on failure of notice “at any time.” Second, in the alternative, I find
that rescission of the order is warranted based on the motion before us
today, as it demonstrates clearly that — due to ineffective assistance of
counsel — the respondent did not receive actual notice as the statute
requires. See section 242B(c)(3)(B) of the Act; see also Matter of N-K- &
V-S-, 

 (BIA 1997)(finding that failure to provide proper

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notice constitutes ineffective assistance of counsel).
     Third, I disagree with the majority’s limited interpretation of the effect
of ineffective assistance of counsel. See Matter of Grijalva, 

 (BIA 1996) (finding that a respondent who did not receive proper
notice from his attorney and who has complied with the procedural
requirements of Matter of Lozada, 

 (BIA 1988), aff’d, 

 (1st Cir. 1988), has established ineffective assistance of counsel
based on “exceptional circumstances,” warranting rescission of an in absentia order). Our decision in Grijalva neither forecloses rescission “at any
time” when failure to appear is based on lack of receipt of notice due to
ineffective counsel, nor does it prohibit rescission when ineffective assistance of counsel results in counsel’s failure to file a timely motion under
section 242B(c)(3)(A). It is unreasonable to read the statutory deadline to
preclude any and all remedies to rescission of an order that was entered
unfairly, particularly when acceptable alternatives exist to preserve the
respondent’s access to a hearing.
     As I have noted in several published dissents, neither the statutory language nor the legislative history supports an interpretation of the statute that
renders section 242B(c) of the Act as more a penalty provision than a deliberate measure to achieve prompt determinations and closure in the cases of
deportable aliens. The overriding objective of Congress in enacting section
545 of the Immigration Act of 1990, 

 Stat. 4978,
5061-67, was to bring aliens to their hearings, and the legislative history
does not contain a punitive intent. See generally Gomez, supra, at part II.B
(1993) (stating that S. 358, a later Conference Committee report incorporated certain previously excluded enforcement provisions to ensure that
aliens were properly notified and in fact would appear for their hearings).

 A. Failure of Proper Notice Based on the Plain Language of the Statute

     The statute authorizes rescission when a respondent demonstrates that
he has not received notice. See section 242B(c)(3)(B) of the Act. The verb
used in section 242B(a)(2) — to “give” — and the verb used in section
242B(c)(3)(B) of the Act — to “receive” — are distinct. See also section
242B(a)(1) (using the verb “give”), Similarly, the verb used in section
242B(c)(1) — to “provide” is different from the verb to “receive,” as used
in section 242B(c)(3)(B),
     Section 242B(c)(1) of the Act states in relevant part that an alien who
does not attend a proceeding “after written notice required under subsection (a)(2) has been provided to the alien or the alien’s counsel of record”
shall be ordered deported in absentia “if the Service establishes by clear,
unequivocal, and convincing evidence that the written notice was so provided.” (Emphasis added.) By contrast, section 242B(c)(3)(B) states that
an in absentia order may be rescinded, “at any time if the alien demon-

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strates that the alien did not receive notice in accordance with subsection
(a)(2).” (Emphasis added.) Thus, according to section 242B(c)(3)(B),
notice that was “provided” to the respondent’s attorney but not to the
respondent (that otherwise might satisfy the requirements of section
242B(a)(2) for purposes of showing that notice was “given”) does not preclude rescission and reopening when, as here, the respondent did not
receive notice. See section 242B(c)(3)(B) of the Act; cf. sections
242B(a)(2), (c)(1); see also Matter of Grijalva, 

 (recognizing that provision of notice might be challenged on the basis that notice was
never received).
      It may be true that to “give” is better than to “receive,” but no matter
how that moral question is resolved, it cannot be denied that to “give” is different from to “receive.” First, the act of “giving” or “providing” notice
refers to the conduct of one party or entity involved in the event in question,
while the state of “receiving” does not involve active conduct and refers to
the situation of another party to the proceedings. Second, in the context of
these particular subsections of the statute, certified mail service that is given
or provided to the respondent’s counsel — even if deemed to be “received”
by counsel — is not the type of notice that can be said to be “receive[d]” by
the alien “in accordance with subsection (a)(2)” under section
242B(c)(3)(B) (referring to section 242B(a)(2)), See Mullane v. Central
Hanover Bank & Trust Co., 

 (1950) (holding that “[a]n
elementary and fundamental requirement of due process in any proceeding
. . . is notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to present their objections”).5
      The language of section 242B(c)(1) of the Act that refers to an alien
being “provided” notice refers to the broad language found in section
242B(a)(2), which addresses compliance with due process on the basis that
notice was “given.” In the event that “personal service [on the alien] is not
practicable,” section 242B(a)(2) allows us to rely on the presumption of regularity of mail delivery to the respondent, or if the respondent is represented, on notice to counsel, as constituting service of notice on “the alien.” See
Matter of Grijalva, 

; cf. Matter of Huete, 

(BIA 1991) (recognizing that the respondent cannot comply with his initial


      5
        Subsequent interpretations of Mullane v. Central Hanover Bank & Trust Co., supra, that
do not require receipt of notice are inapplicable here, as the statute specifically provides for
rescission where the respondent demonstrates that he did not receive notice for purposes of a
motion to rescind under section 242(b)(c)(3)(B), Cf. United States v. Perez-Valdera, 

 (S.D.N.Y. 1995) (noting that receipt was not required); cf. also United States
v. Estrada-Trochez, 

 (5th Cir. 1995) (finding that section 242(b) was satisfied
by a 1987 notice sent by first-class mail that was returned because the alien provided no forwarding address),

                                             124
                                                       Interim Decision #3356


statutory obligation unless he receives actual notice of the Order to Show
Cause, which commences the hearing). By contrast, the language of section
242B(c)(3)(B) does not refer simply to section 242B(a)(2), but modifies the
language of that subsection to require that “the alien” must “receive notice”
in accordance with section 242B(a)(2).
     Congress’ use of two different terms in two subsections of the same
statute must be construed in a manner that gives each independent effect.
See INS v. Cardoza-Fonseca, 

, (1987). The meaning of section
242B(c)(3)(B) is clear; it is neither ambiguous, nor satisfactorily implemented by a regulation equating service on an alien’s representative with
service on the alien. Cf. 

(a) (1997) (stating only that when
a person is required to give or be given notice or to serve or be served with
notice, service on an attorney satisfies the requirement, but not addressing
a statutory requirement that notice be received), “If the intent of Congress
is clear, that is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of Congress.”
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

 (1984). Where Congress’ intent is clearly enacted in unambiguous language, that language is conclusive. Negonsott v. Samuels, 

 (1993); Griffin v. Oceanic Contractors, Inc., 

(1982).
     Congress must be deemed to be aware of the difference between giving
and receiving. Furthermore, as the parenthetical clause in the sentence of
section 242B(a)(2) that is referred to in section 242B(c)(3)(B) indicates,
Congress was well aware of how to draft this alternate method of service by
proxy if it so chose, “To determine the plain meaning and purpose of a portion of a statute, we must examine not only the specific provisions at issue,
but also the structure of the law as a whole including its object and policy.”
Almero v. INS, 

 (9th Cir. 1994); see also Coit Independence
Joint Venture v. Federal Sav. & Loan Ins. Corp., 

 (1989) (stating that “whole statute” interpretation dictates that statutory sections should
be read in harmony to achieve a harmonious whole); In re Bonner Mall
Partnership, 

 (9th Cir. 1993); Matter of W-F-, supra (citing K
Mart Corp. v. Cartier, Inc., 

 (1988)(ruling that a construction of the statutory language which takes into account the design of
the statute as a whole is preferred)).
     In section 242B(c)(3)(B) of the statute, Congress unambiguously provided that rescission may be appropriate where the respondent demonstrates that he did not receive notice to appear. Although section 242B(c)(1)
and the subsections preceding it permit proceedings to be conducted on the
presumption that notice is received by requiring only that notice be “given,”
section 242B(c)(3) — which preserves the fundamental guarantee of due
process such as notice in such proceedings — invokes the more stringent
standard when a respondent claims he did not actually “receive” such

                                     125
Interim Decision #3356


notice. We must read and give meaning to the language of these subsections
taken together. So read, the statute indicates expressly that when the presumption that such notice was given is challenged by evidence that indicates that actual notice has not been received by the respondent, rescission
of a deportation order entered in the respondent’s absence is necessary.

         B. Violation of (Competent) Counsel’s Duty to Provide Notice

     As a corollary to the above reading of the statutory language, I find it
appropriate to consider the role of retained counsel in relation to the statutory scheme concerning notice to the respondent. This is even more important if my first point — that the statutory language is plain and reading it to
provide expressly for actual “receipt” of notice by the respondent is harmonious with the statute as a whole — is subject to doubt. Although the statute
addresses the role of counsel to a limited extent, stating that if personal
service on the respondent is not practicable, service by certified mail may
be made on counsel, it is silent regarding circumstances in which notice to
counsel is, in reality, not equivalent to notice to the respondent. Therefore,
the second point to be addressed is counsel’s ineffective representation as
impeding notice as required by the statute.
     Counsel is expected to represent the interests of her client, and under
the provisions of section 242B of the Act, failure to notify the respondent
when and where to appear after an attorney has been notified, and failure to
advise the respondent of the severe consequences and few cures associated
with a failure to appear, most certainly constitutes ineffective assistance of
counsel on the merits. See Strickland v. Washington, 

(1984) (holding that “the proper standard for attorney performance is that
of reasonably effective assistance” and determining “whether, in light of all
the circumstances, the identified acts or omissions were outside the wide
range of professionally competent assistance . . . keep[ing] in mind that
counsel’s function, as elaborated in prevailing professional norms, is to
make the adversarial testing process work in the particular case”),
     We have held that when an attorney fails to provide proper notice to her
client, such ineffective assistance of counsel constitutes “exceptional circumstances” within the meaning of section 242B(c)(3)(B) of the Act. See,
e.g., Matter of Grijalva, 

 (holding that circumstances in
which improper notice from counsel frustrated a respondent’s opportunity
to appear before the Immigration Judge demonstrated ineffective assistance
of counsel and rendered an order issued in the subsequent proceeding an
unfair one that should not stand).6 In addition, the Board has ruled that

     In Matter of Lozada, 

 (BIA 1988), aff’d, 

 (1st Cir. 1988),
     6


we required the respondent to demonstrate — over and above malfeasance or nonfeasance on
the merits — the terms of his agreement with his attorney, that he notified the attorney of his

                                             126
                                                                   Interim Decision #3356


reopening of deportation proceedings is required when, because of ineffective assistance of counsel, “the alien was prevented from reasonably presenting his case.” Matter of 

.7
     The record before us reflects on its face that former counsel (who was
well aware that the respondent was a lawful permanent resident subject to a
condition, the removal of which was the subject of the deportation hearing)
had received notice of the continued hearing, inasmuch as the notice was
sent by certified mail and was signed for by someone purportedly at the
location indicated on former counsel’s pleadings. Both the statute and the
regulations provide that, colloquially speaking, when a respondent is represented by counsel, notice to counsel is notice to the respondent. See sections
242B(a)(2), (c)(1) of the Act; see also 

, 292.5 (1997),
     I note that we deem counsel adequate to accept service and to make
binding representations on a client’s behalf. See 

; see also
Matter of Velasquez, 

 (BIA 1986) (holding that counsel’s
admission and concession of his client’s deportability is binding on a
respondent). We ought to, similarly, acknowledge that counsel’s failure to
notify the respondent, when she is treated by the regulations and the statute
as the respondent’s proxy, not only constitutes a breach of her duty and
establishes ineffective assistance of counsel, but results in a failure of notice
under the explicit language of section 242B(c)(3)(A) of the Act. Strickland
v. 

     In Matter of Grijalva, 

, we acknowledged specifically that “[t]he enactment of section 242B responds to some of the concerns raised in an October 1989 United States General Accounting Office
(‘GAO’) report on delays in the deportation process and the substantial
number of aliens who fail to appear for their scheduled deportation hearings. The . . . report . . . recommended several solutions to this problem,
including developing procedures to improve the notification process . . . .”


complaint, and that he filed a grievance with the state licensing entity or provided an explanation for not doing so (“Lozada test”), In the instant case, the former attorney acknowledged
the breach of her agreement to effectively represent the respondent by notifying him of his
hearing date and her failure to properly represent him by filing a motion to reopen that either
established that he did not receive actual notice due to ineffective assistance of counsel or
alleged exceptional circumstances within the statutory deadline. Unlike dissenting Chairman
Paul W. Schmidt, I find these admissions not only constitute compliance with the first two
prongs of the “Lozada test” but satisfy the third prong’s “explanation” alternative in lieu of
filing a bar complaint.
      7
       Ineffective assistance of counsel that has prevented hearing the merits of a case altogether has been treated differently from ineffective assistance of counsel that resulted, rather,
in poor presentation of a case or a disastrous strategy. Cf. Magallanes-Damian v. INS, 

 (9th Cir. 1986); see also Thorsteinsson v. INS, 

 (9th Cir.), cert. denied,

 (1984)(rejecting an ineffective assistance claim when the attorney had made
an informed, strategic decision in litigation).

                                              127
Interim Decision #3356


Id. at 30 (citations omitted). Mindful of our inability to guarantee notice in
each and every case, we held that effective notice by the Immigration Court
was presumed by proper delivery, but provided that this presumption could
be overcome by an affirmative defense in the form of documentary evidence
from the Postal Service, third party affidavits, or other similar evidence
demonstrating that there was improper delivery or that nondelivery was not
attributable to the respondent. Id.
     Congress’ emphasis on fair and proper notice as part and parcel of its
objective to see that hearings were convened, conducted, and completed
could not be more clear.8 The amendments to the statute in 1990 did not
merely impose more severe sanctions for failure to appear at deportation
hearings and other points in the removal process. These amendments
attached more stringent and exacting notice requirements to deportation
proceedings than had existed previously. For example, according to the
statute, an in absentia deportation order may be issued only upon clear,
unequivocal, and convincing evidence, introduced by the Service, that the
respondent had notice of the hearing and failed to attend, as well as that the
respondent is deportable by evidence which is clear, unequivocal, and convincing. See section 242B(c)(1) of the Act. The evidence before us includes
the respondent’s statement that he never received notice from his former
attorney or from any other source, and statements submitted by former
counsel substantiate this fact. These circumstances amount to a failure of
notice under section 242B(c)(3)(A) of the Act due to ineffective assistance
of counsel.

   C. Ineffective Assistance of Counsel as “Exceptional Circumstances”

    Under circumstances in which notice was provided to respondent’s
counsel, but she did not inform him of the notice, neither nonfeasance nor
malfeasance on her part should be allowed to prejudice the respondent’s


      8
        Although I view the difference in wording as a clear indication of Congress’ intent to
insure that a respondent is not deported in absentia when he did not receive notice of his hearings, I note, in addition, that the Ninth Circuit has cautioned that the meaning given to words
in a statute must comport with legislative intent. See United States v. Alvarez-Sanchez, 

 (9th Cir. 1992), rev’d on other grounds, 

 (1994) (stating that
courts should not “make a fetish of construing statutes in a literal fashion,” but should see
their role as “that of perceptive diviner of congressional intent”) (citing United States v.
Monia, 

 (1943) (Frankfurter, J., dissenting) (“The notion that because the
words of a statute are plain, its meaning is also plain, is merely pernicious oversimplification.”)); see also United States v. Ron Pair Enterprises, Inc., 

 (1989) (finding that the plain meaning of an unambiguous provision controlling, except in the “‘rare cases
[in which] the literal application of a statute will produce a result demonstrably at odds with
the intentions of its drafters’” (quoting Griffin v. Oceanic Contractors, Inc., 

(1982))).


                                              128
                                                                  Interim Decision #3356


right to a hearing.9 According to the statute and to our regulations, respondent’s former counsel was charged with the responsibility of notifying him
of any continued or rescheduled hearing for which she received notice in his
stead. According to the record, it is undisputed that she did not do so.
Consequently, I conclude that, on the merits, the respondent has demonstrated “exceptional circumstances” for his failure to appear.
      It is important to note the centrality of notice in cases decided under
section 242B, and the continuing emphasis in the statute on a reasonable
opportunity to be present. In Fuentes-Argueta v. INS, 

 (2d Cir.
1996), the court recognized that “without repealing § 242(b), Congress
amended the Act to add § 242B, a more stringent provision requiring (rather
than merely permitting) the IJ to issue in absentia orders of deportation
where the INS establishes deportability by ‘clear, unequivocal, and convincing evidence.’” Id. at 871 (citing Romero-Morales v. INS, supra, at
128), The court also stated: “[A]mong the differences between § 242(b) and
§ 242B, the latter sets forth a stricter notice requirement. See United States
v. Perez-Valdera, 

 (S.D.N.Y. 1995) (observing that,
because consequences of alien’s failure to appear are more severe under §
242B, notice requirements under that section were ‘strengthened’).”
Fuentes-Argueta v. INS, supra, at 870.
      Neither a statute nor a regulation can be read as operating to deny the
respondent notice of his deportation hearing and be upheld as constitutional. I believe it is improper to refuse the respondent his day in court when it
is plain on the face of the record that counsel’s reckless disregard, negligence, good faith error, or any other explanation for her failure to act is
responsible for the respondent’s failure to appear, and for her failure to file
a motion explicitly claiming exceptional circumstances under section
242B(c)(3)(A) within the statutory deadline.
      To read the statute as foreclosing a motion to reopen to rescind an in
absentia order when the exceptional circumstances claimed are that counsel
was ineffective in not notifying the respondent of his hearing, and that she
perpetuated her ineffectiveness by failing to file a timely motion to rescind,
unreasonably frustrates the operation of the statutory provision for an entire
subclass of cases in which we would have found exceptional circumstances


      9
        Notwithstanding our decision in Matter of 

 the touchstone of fairness in
relation to counsel is not whether one has complied technically with the three-prong “Lozada
test,” but whether one has been deprived of due process. See Committee of Central American
Refugees v. INS, 

 (9th Cir. 1986) (citing Vides-Vides v. INS, 

 (9th Cir. 1986)). Therefore, the “Lozada test” is, or should be, no more than a
guideline or mechanism to facilitate consideration of valid claims involving the denial of due
process resulting from ineffective assistance of counsel. When the mechanism fails to facilitate, but instead swallows, the objective, the mechanism must be deemed faulty and itself ineffective.

                                             129
Interim Decision #3356


under our decision in Matter of Grijalva, 

. Given that
Congress has not plainly indicated an intent to foreclose motions that rest
on “exceptional circumstances” alleged to constitute not only the reason for
a respondent’s failure to appear, but the reason for his failing to meet the filing deadline contained in section 242B(c)(3)(B), the majority’s interpretation is inconsistent with the statute’s purpose of affording rescission of
orders of deportation that were entered in the respondent’s absence, despite
“compelling reasons beyond the control of the alien.” Id.; see also Romero
v. INS, 

 (9th Cir. 1994) (citing United States v. Witkovich,

 (1957) (rejecting an interpretation of a statute affecting the
liberty interests of aliens that would raise doubts as to the statute’s validity,
based on the “‘cardinal principle’” favoring adoption of a construction of
the statute “‘by which the [constitutional] question may be avoided’” (quoting Crowell v. Benson, 

 (1932))).
          Furthermore, it is self-evident that the respondent’s loss of an
opportunity to present his defenses to deportation and his claims for discretionary relief from deportation before the Immigration Judge, as a result of
the operation of section 242B(c)(1), constitutes prejudice. Cf. Matter of
Santos, 

 (BIA 1984); cf. also Waldron v. INS, 

 (2d Cir. 1993) (holding no showing of prejudice required where a fundamental right is at stake), cert. denied, 

 (1994); Sewak v.
INS, 

, 670 n.7 (3d Cir. 1990) (rejecting harmless error doctrine
where respondent did not receive notice of hearing); Shahandah-Pey v. INS,

 (7th Cir. 1987) (finding prejudice in violation of procedural protection if it “had the potential for affecting the outcome” of the
hearing); Colindres-Aguilar v. INS, 

 (9th Cir. 1987) (finding
prejudice not harmless where counsel could have better marshaled facts in
asylum case and sought voluntary departure); Paul v. INS, 

 (5th Cir. 1975) (concluding that since it was the attorney who caused
the hearing to be fundamentally unfair, the result of that hearing cannot be
permitted to stand),


III. EQUITABLE RELIEF REQUIRED TO ENSURE FAIR TREATMENT

     Admittedly, the statute forecloses rescission when an alien files a
motion based on exceptional circumstances for failure to appear after the
expiration of the 180-day filing period designated by the statute. But, the
statute does not address squarely the situation before us, in which the failure to file a motion within the 180-day period itself is attributable to ineffective counsel, which is the same basis for the claim of “exceptional circumstances” for failure to appear under section 242B(c)(3)(B) due to the
fact that the respondent did not receive notice of the hearing. Furthermore,
both judicial and administrative authority allows us to avoid imposing a

                                      130
                                                              Interim Decision #3356


statutory bar when due process has been violated and to cure various defects
in proceedings, if such treatment would equitably resolve a case. See
Batanic v. INS, 

 (7th Cir. 1993); Matter of Garcia, 

 (BIA 1996); see also Matter of Lok, 

 (BIA
1981), aff’d, 

 (2d Cir. 1982); Matter of Vrettakos, 

 (BIA 1973, A.G. 1974).
     In Singh v. Waters, 

 (9th Cir. 1996), the Ninth
Circuit stated that to ensure the fair treatment of aliens within our borders,

  Congress has created immigration judges, who, although they do not have the security of life tenure, are intended to act as judges — that is, as persons fearlessly and
  impartially applying the laws of the United States to the agency to which they are
  assigned; and whose orders are to be obeyed by such agency as the orders of other
  judges of the United States are to be obeyed. See 

(b).

     This message applies no less to our resolution of appeals from the decisions of Immigration Judges. Yet, the majority contends that the issue presented is simply whether there exists a statutory exception to the requirement that a motion to rescind on the grounds of exceptional circumstances
must be filed within 180 days of the in absentia order, and it concludes that
no such exception exists. That construction of the statute, however, begs the
question. It not only avoids the failure of notice ground discussed above, but
rests on a rigid reading of the language contrary to our own understanding
of the significance of ineffective assistance of counsel and its relationship
to a fair hearing process.
     Clearly, Congress contemplated enforcement of the statutory language.
Nevertheless, an order resulting from ineffective assistance of counsel is no
more acceptable than it would be otherwise, merely because former counsel failed to assert such ineffectiveness within the statutory 180-day period
provided for a motion to rescind. As stated above, we are charged with giving effect to Congress’ intentions in a manner that comports with constitutional principles. Thus, I believe we must consider what permissible alternatives exist that can accommodate enforcement of the statute without compromising due process.
     Even if the majority persists in refusing to construe the respondent’s
motion as one raising failure of notice — to which no statutory time limitation is tied — the majority unreasonably declines to exercise our residual
administrative authority to ameliorate the undeniable exceptional circumstances that flow from former counsel’s multiple errors. Cf. Matter of
Grijalva, 

. Our authority to construe the statute as permitting us to consider an “exceptional circumstances” motion after the passage
of 180 days when the claim is ineffective assistance of counsel for failing
to file a motion to rescind before the statutory period passes has not been
foreclosed by Congress or by the Attorney General and is supported by judicial decisions. In the face of such a blatant due process violation, a statuto-
                                          131
Interim Decision #3356


ry provision that might otherwise preclude us from acting need not limit our
ability to restore the respondent to the position he would have held but for
that violation. See Snajder v. INS, 

 (7th Cir. 1994),
     The extension of equitable relief in the context of statutory and discretionary aspects of deportation proceedings has long been accepted as within the province of the Board to fashion. We have invoked such authority historically by designating certain determinations made on the basis of our
authority to achieve an equitable result as being effective “nunc pro tunc.”
See Black’s Law Dictionary 1069 (6th ed. 1990); Matter of 

(Guendelsberger, joined by Schmidt, dissenting); see also Matter of L-, 

, 5 (BIA, A.G. 1940) (finding, in the first case decided by the
Board under the delegated authority of the Attorney General, that it would
be capricious to conclude that “the technical form of the proceedings”
determined the result). Furthermore, we have found nunc pro tunc relief
appropriate in cases going back for more than 50 years, even prior to the
enactment of the Immigration and Nationality Act of 1952, ch. 477, 

. Matter of 

 (citing Matter of S-N-, 

, 76
(BIA, A.G. 1954) (reporting the Attorney General’s ruling that the 1952 Act
provided no reason to abandon or reverse the practice of affording relief
nunc pro tunc)),
     We have exercised our administrative authority periodically to enter
nunc pro tunc determinations that achieve equitable results serving the
interests of the agency and the individual alike. As I discussed in Matter of
Yeung, 

 (BIA 1996; 1997) (Rosenberg, dissenting), such
action has been invoked as a justice-based remedy in which “‘complete justice to an alien dictates such an extraordinary action’” and “‘the record
before us presents many sympathetic and mitigating factors.’” 

 at 623
(quoting Matter of T-, 

, 412 (BIA 1954) (considering
whether an application filed under the 1917 Act was subject to the terms of
the 1952 Act)). Furthermore, we have taken such action as an efficiencybased remedy, in which nunc pro tunc relief was warranted to achieve an
appropriate and necessary disposition of the case. Matter of Vrettakos,
supra, at 599 (BIA 1973, A.G. 1974); see also Matter of Ng, 

 (BIA 1979); Matter of Ducret, 

 (BIA 1976); Matter of
Rapacon, 

 (R.C. 1973); Matter of Farinas, 

 (BIA 1967); cf. Matter of C-, 

 (BIA 1992) (rejecting the argument that an asylum application should be deemed constructively filed prior to the amended statute’s effective date, where there was no
showing that fundamental rights were abridged or that the applicant would
benefit).
     Nunc pro tunc relief is not restricted to the above cited situations by
statute, agency definition or policy, or generally accepted principles of
jurisprudence. Ordinarily, when a situation occurs in which an alleged procedural error is made — ranging from a mistranslation attributable to a

                                     132
                                                        Interim Decision #3356


court interpreter, to the inappropriate exclusion of evidence, to failure to
advise of the right to counsel — such errors are cured by simply holding a
new hearing “in compliance with due process requirements,” which restores
the wronged applicant to the position in which he found himself prior to the
procedural error. Batanic v. INS, supra, at 667; see also Rabiu v. INS, 

 (2d Cir. 1994) (finding ineffective counsel’s failure to file
a timely application for a waiver to violate the respondent’s rights and
require reopening); Shahandeh-Pey v. INS, supra, at 1390 (remanding to
allow an alien denied the opportunity to present evidence and to “have his
day in court” and present all of his evidence in support of his application for
asylum in lieu of deportation).
     Violations of procedural due process generally “call for the prophylactic remedy of vacating the order of deportation and for writing thereafter on
a clean slate.” Castaneda-Delgado v. INS, 

 (7th Cir.
1975); see also Matter of Santos, supra (requiring that such procedural violations are prejudicial). When holding another hearing does not cure the
defect in the prior proceeding or make the prejudiced applicant “whole,”
however, we are forced to look beyond such routine remedies.
     There is no question but that the respondent’s motion claiming exceptional circumstances — ineffective assistance of counsel — was not filed
within 180 days because of ineffective assistance of the same counsel. If we
insist on limiting his motion to one asserting only “exceptional circumstances,” we must consider nunc pro tunc relief. Batanic v. INS, supra
(holding that where denial of the right to counsel deprived the respondent
of his right to apply for asylum, counsel’s ability to protect the respondent’s
rights in a reconvened hearing must include the ability to apply for asylum
nunc pro tunc). In particular, “when the procedural defect has also resulted
in the loss of an opportunity for statutory relief,” the demands of due
process require more than merely reconvening the hearing. Id. at 667
(emphasis added). When a violation of due process results in a denial of a
fair hearing on the question of eligibility for discretionary relief, the respondent should be afforded the opportunity for consideration of his claim based
upon the law as it existed at the time he was deprived of his rights. Snajder
v. INS, supra, at 1208 n.12.
     The process due the respondent — an opportunity to present his motion
for consideration pursuant to section 242B(c)(3) of the statute, in light of
our ruling in Matter of Grijalva, 

 — has not become moot,
as the majority suggests, due to expiration of the 180-day statutory period.
Instead, the process due the respondent requires that the respondent be
given the advantage of the exceptional circumstances grounds available
under the statute when his counsel filed a motion to reopen based on notice,
and failed to include the equally applicable exceptional circumstances
grounds, and when, after rejection of that motion, she failed to file a timely motion claiming exceptional circumstances. To refuse to recognize inef-

                                      133
Interim Decision #3356


fective assistance of counsel when that ineffective assistance itself is the
cause for a tardy filing of a motion to rescind on such grounds, unreasonably limits our holding in Matter of Grijalva, and results in a denial of due
process. In other words, in fairness, since it was his counsel’s error that
caused the 180-day deadline to pass without a proper motion having been
filed, the respondent should “be given the advantage of the law that existed
when his first hearing was held.” Batanic v. INS, supra, at 668.


                            IV. CONCLUSION

     In summary, I find that although sections 242B(a)(1) and (2) of the Act
require only that written notice be “given” to a respondent (and that if personal service is not practicable, it may “be given” by certified mail to the
respondent or his counsel), the notice provision in section 242B(c)(3)(B)
specifically requires that such written notice is “receive[d]” by the respondent. On the facts presented, I would find that the respondent has established ineffective representation compromising his rights to proper notice of
his deportation hearing, as well as constituting exceptional circumstances,
amounting to a violation of due process in either case. Baires v. INS, supra.
     Reading the statute to allow rescission “at any time” when the respondent demonstrates that he has not actually received notice of a rescheduled
hearing is consistent with the statute’s plain language and with our precedent. See 242B(c)(3)(B) (requiring that notice is “received”); Matter of
Grijalva, 

 (allowing rebuttal of the presumption of effective
service when the statute requires only that notice “shall be given”).
Furthermore, viewing the failure to advise the respondent of the proper
hearing date as ineffective assistance of counsel that constitutes “exceptional circumstances” under the statute, as we do in Matter of Grijalva, 

, does not preclude conceiving of ineffective counsel as violating the statutory notice requirements.
     Contrary to the conclusion drawn by the majority, it is not appropriate
to ignore or limit the plain terms of section 242B(c)(3)(B).
     If the respondent was not provided with and did not receive actual
notice of his rescheduled hearing, it is an abuse of our discretion to refuse
to rescind the Immigration Judge’s order of deportation and reopen the
respondent’s hearing. A fair evaluation of the “totality of the circumstances,” as contemplated by Congress when section 242B was enacted,
compels the conclusion that the respondent is entitled to a hearing at which
he can present his defenses to deportation and any claims for discretionary
relief or other benefits that he may wish to advance. See Matter of Rivera,

 (BIA 1996) (Schmidt, dissenting, joined by
Guendelsberger, Rosenberg, and Villageliu). Therefore, I would construe
the instant motion under both subsections of section 242B(c)(3) and grant

                                    134
                                                                    Interim Decision #3356


it as a motion to rescind based on “notice,” which can be considered “at any
time.” In the alternative, I would adjudicate the respondent’s present
motion nunc pro tunc and find that the ineffective assistance of former
counsel in failing to timely file a motion under section 242B(c)(3)(A) constitutes “exceptional circumstances” and allows rescission outside the 180-
day cutoff date for equitable reasons. I would do so primarily because such
reconsideration is within our authority and justice so requires. I also would
take such action because to fail to do so perpetuates a violation of the statute
that I believe constitutes an error of constitutional proportions.

CONCURRING AND DISSENTING OPINION: John W. Guendelsberger,
Board Member
     I concur in part and dissent in part.
     I concur with the majority’s analysis regarding the respondent’s inability to rescind the in absentia order of deportation under section
242B(c)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §
1252b(c)(3)(A) (1994), given the expiration of the 180-day time limitation
for such motions. However, I would examine the respondent’s eligibility to
rescind under section 242B(c)(3)(B), for cases involving lack of notice.
Although the applicability of this alternate avenue for rescission is not
explicitly raised on appeal, the issue should be addressed, in light of the
respondent’s assertion that he never received notice of his hearing.
     Section 242B(a)(2)(A) of the Act, which governs the method of providing notice in deportation proceedings, states in relevant part:

     Written notice shall be given in person to the alien (or, if personal service is not practicable, written notice shall be given by certified mail to the alien or to the alien’s
   counsel of record, if any) . . . .

    Section 242B(c)(1) of the Act sets forth the circumstances under which
a hearing may be held in absentia:

    Consequences of failure to appear.—

     (1) In general.—Any alien who, after written notice required under subsection (a)(2)
   has been provided to the alien or the alien’s counsel of record, does not attend a proceeding under section 242, shall be ordered deported under section 242(b)(1) in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the
   written notice was so provided and that the alien is deportable.

     In the instant case, the respondent’s attorney was given written notice
of the respondent’s hearing by certified mail, in accordance with subsection
(a)(2), Thus, the Immigration Judge properly held a hearing in absentia
under subsection (c)(1), as notice was provided to “the alien’s counsel of
record.” However, the fact that notice is provided in accordance with sec-

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tion 242B(a)(2) of the Act does not conclusively resolve the issue of sufficiency of notice for the purposes of reopening to rescind under section
242B(c)(3)(B). That subsection provides, in pertinent part:

    Rescission of order.—Such an order may be rescinded only—

    ...

    (B) upon a motion to reopen filed at any time if the alien demonstrates that the alien
  did not receive notice in accordance with subsection (a)(2) . . . .

     Notably, while subsection (c)(1) permits a hearing to be held in absentia where an alien fails to attend a proceeding “after written notice required
under subsection (a)(2) has been provided to the alien or alien’s counsel”(emphasis added), section 242B(c)(3)(B) permits an alien to rescind
such an order where the alien can demonstrate that “the alien did not
receive notice in accordance with subsection (a)(2)” (emphasis added). The
difference in the statutory language between these two sections is significant. Congress could have used the same wording in both sections, but
instead focused only upon receipt by the alien for purposes of rescission.
This variance in the statutory language demonstrates that Congress intended for the alien, as opposed to the alien’s counsel as agent, to have notice of
his or her hearing for purposes of rescinding under section 242B(c)(3)(B).
See, e.g., INS v. Cardoza-Fonseca, 

 (1987) (applying the
principle of statutory construction that where Congress includes particular
language in one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion). Therefore, even where the
respondent’s attorney is served with notice in accordance with subsection
(a)(2), which is sufficient notice under subsection (c)(1) for purposes of
conducting a hearing in absentia, the alien should still be permitted to
rescind the order under subsection (c)(3)(B) upon demonstrating that “the
alien did not receive notice.”
     Our decision in Matter of Grijalva, 

 (BIA 1995),
involved a similar issue of lack of notice under section 242B(c)(3)(B) of the
Act. In that case, the alien was served notice in accordance with section
242B(a)(2), by certified mail to the alien’s last known address. The certified
mail return receipt was returned as unclaimed, following notices of certified
mail provided to the alien by the United States Postal Service. The Board
held that where service of a notice of hearing in deportation proceedings is
sent by certified mail through the United States Postal Service, and there is
proof of attempted delivery and notification of certified mail, a strong presumption of effective service arises which may be overcome by the affirmative defense of nondelivery or improper delivery by the Postal Service.
The alien asserted that he never received the notice of hearing or the notices

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of certified mail from the Postal Service, and we remanded the case to allow
the alien an opportunity to demonstrate nondelivery or improper delivery of
the notice, through no fault of the alien. 

.
     Although Matter of Grijalva, 

, involved service of written notice directly upon the alien, a similar opportunity to demonstrate nondelivery should be available in the situation presented in the instant case, in
which written notice is mailed to the alien’s attorney. Specifically, the alien
should be allowed to demonstrate that his or her counsel failed to convey
the notice of hearing to the alien.
     Furthermore, this approach is not inconsistent with the regulation
regarding representative capacity. That regulation, found at 

(a) (1997), provides in pertinent part that “[w]henever a person is
required . . . to give or be given notice . . . such notice . . . shall be given by
or to . . . the attorney or representative of record, or the person himself if
unrepresented.” This provision merely indicates to whom service is to be
made and does not address whether such service is sufficient notice to the
alien to preclude rescission under section 242B(c)(3)(B) of the Act.
     Thus, while the Immigration Judge properly held an in absentia hearing, in light of the evidence that notice in accordance with subsection (a)(2)
had been provided to the respondent’s counsel, the respondent should not
be precluded under subsection (c)(3)(B) from reopening and rescinding if
he can establish lack of actual notice by showing that his attorney did not,
in fact, communicate the notice of hearing to him, and that he therefore did
not “receive notice” of his hearing. See Matter of Lozada, 

(BIA 1988), aff’d, 

 (1st Cir. 1988) (prescribing standards for
establishing ineffective assistance of counsel). Section 242B(c)(3) does not
specify a 180-day limit upon such a motion if the alien demonstrates that he
did not receive notice of the hearing.

DISSENTING OPINION: Paul W. Schmidt, Chairman

     I respectfully dissent.
     The uncontested evidence establishes that the respondent’s former
attorney failed to discharge her duty to notify the respondent of his deportation hearing date and failed herself to appear at the deportation hearing.
That conduct resulted in the entry of an in absentia order of deportation
against the respondent. Former counsel also admits that, through her unfamiliarity with the proper procedures, she was responsible for failing to file
a legally sufficient motion to reopen seeking to rescind the in absentia order
within the 180-day statutory time frame. A properly perfected motion
should have resulted in reopening and rescission of the in absentia order
under our decision in Matter of Grijalva, 

 (BIA 1996)
(holding that ineffective assistance of counsel is an “exceptional circumstance” justifying reopening and rescission of an in absentia order).

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     I disagree with present counsel’s attempt to argue that referral of this
matter to the State Bar of California under our decision in Matter of Lozada,

 (BIA 1988), aff’d, 

 (1st Cir. 1988), is inappropriate because former counsel’s conduct would not be a ground for discipline under those rules. First, the record contains ample uncontested evidence of former counsel’s multiple acts of mishandling this case that tends
to belie such a claim. Whether or not such conduct violates the Rules of
Professional Conduct is a question that must be determined by the State Bar
of California, not the respondent’s present counsel.
     Nevertheless, in this particular case, insistence on satisfaction of the
Lozada requirement that the matter be referred to the State Bar as a prerequisite to our recognizing the ineffective assistance claim elevates form over
substance. Even more than in Matter of Rivera, 

 (BIA
1996), a case in which I dissented, the record in the present case clearly
establishes ineffective assistance of counsel. We can resolve the “defect” in
Lozada compliance by either (1) serving a copy of our decision in this case
on the State Bar of California, or (2) referring the matter to the Office of
General Counsel of the Executive Office for Immigration Review for investigation of whether further referral to the State Bar or a referral under 

 (1997) (disciplinary regulations relating to immigration proceedings) is appropriate.1 Failure to refer this particular matter to the State
Bar is not an appropriate basis for us to decline to recognize the respondent’s claim of ineffective assistance of counsel.
     Because the respondent was deprived of his right to a deportation hearing through the ineffective assistance of counsel, I would reopen this matter sua sponte under 

(a) (1997) and rescind the in absentia
order of deportation, notwithstanding the expiration of the 180-day period
set forth in section 242B of the Immigration and Nationality Act, 8 U.S.C.



      1
        I note that as a result of recently proposed changes in the rules relating to attorney discipline in proceedings before the Executive Office for Immigration Review (“EOIR”), it is
possible that in the future there will be more effective means of dealing with the problem of
ineffective assistance of counsel in the immigration context. See 

, 2906 (to
be codified at 

(k)(proposed Jan. 20, 1998)). Under the proposed regulations,
disciplinary investigations would be conducted by the EOIR General Counsel either in conjunction with, or independent of, action by a State bar and without involvement by the
Immigration and Naturalization Service. Claims that are found to have merit upon investigation would be prosecuted before a Disciplinary Committee appointed by the Deputy Attorney
General. This should solve, at least to a large extent, the problem of collusive claims of ineffective assistance by counsel that concerned the Board in Matter of Rivera, supra. While I do
not suggest that isolated instances of negligence or error on the part of counsel should be a
basis for discipline, attorneys who repeatedly fail to properly and competently represent the
interests of their clients, or who file false admissions of negligence or incompetence to secure
strategic benefits for their clients, should not be practicing before EOIR.

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§ 1252b (1994), for reopening on the basis of exceptional circumstances. I
agree with present counsel that, in the circumstances of this case, invoking
the 180-day limit to absolutely bar a claim based on ineffective assistance
of counsel raises serious constitutional due process issues. See Matter of J-
J-, 

 (BIA 1997) (stating that the Board may reopen on its
own motion in exceptional circumstances); cf. Romero-Morales v. INS, 

 (2d Cir. 1994) (cautioning against an overly mechanical application of section 242B).
     Finally, I doubt that under the circumstances of this case the respondent
can be found to have received legally sufficient notice of his deportation
hearing time and place. That is a separate ground for reopening under section 242B(c)(3)(B) of the Act that is not subject to any time limitation.
     For the foregoing reasons, I respectfully dissent from the denial of the
respondent’s motion.

DISSENTING OPINION: Gustavo D. Villageliu, Board Member

     I respectfully join the dissents of Chairman Paul W. Schmidt and Board
Members Lory D. Rosenberg and John W. Guendelsberger. I agree with
their conclusion that section 242B(c)(3)(B) of the Immigration and
Nationality Act, 8 U.S.C. § 1252b(c)(3)(B) (1994), allows rescission of an
in absentia deportation order at any time if the alien demonstrates that he
did not receive notice of his deportation hearing due to ineffective assistance of counsel.




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