## Facts

- Raoul Anin, a citizen of Benin, entered the United States in 1991 as an alien in transit and overstayed.
- After marrying a U.S. citizen, his spouse filed a visa petition, and Anin sought asylum and withholding of deportation.
- The INS concluded the marriage was fraudulent and initiated deportation proceedings; Anin was detained.
- The Immigration Court set a deportation hearing and sent hearing notice by certified mail to Anin’s attorney of record.
- The notice was received and signed for at counsel’s office, but counsel did not inform Anin of the hearing date.
- Anin failed to appear, and the immigration judge ordered deportation in absentia.
- Counsel moved to reopen for lack of notice; the immigration judge denied the motion because service on counsel by certified mail constituted notice to Anin; the BIA affirmed, and counsel did not inform Anin.
- Almost two years later, after receiving instructions to report for deportation, Anin learned of the hearing notice and prior BIA denial, retained new counsel, and filed a second motion to reopen alleging ineffective assistance and seeking tolling of the 180-day deadline.
- The BIA denied the second motion as untimely and declined to reopen sua sponte.

## Issues

1. Whether the BIA abused its discretion in denying as untimely Anin’s second motion to reopen an in absentia deportation order filed beyond the 180-day deadline and based on ineffective assistance of counsel.
2. Whether the BIA abused its discretion in declining to reopen the proceedings sua sponte under 8 C.F.R. § 3.2(a) (1999).

## Decision

- The Eleventh Circuit denied the petition for review.
- The court held the BIA did not abuse its discretion in treating the second motion to reopen as untimely under the INA’s 180-day limit applicable to reopening based on exceptional circumstances.
- The court held service of hearing notice on counsel of record by certified mail satisfied statutory notice requirements, defeating any claim of reopening “at any time” for lack of notice.
- Assuming equitable tolling could apply in principle, the court agreed the BIA could deny tolling given Anin’s lack of diligence in pursuing the status of his case.
- The court held the BIA did not abuse its discretion in declining to reopen the case sua sponte.

## Legal Principles

- Service of written hearing notice on an alien’s counsel of record constitutes notice to the alien when served in the manner authorized by statute and regulation.
- An in absentia deportation order may be reopened within 180 days upon a showing that the failure to appear resulted from exceptional circumstances; reopening for lack of notice is available only when statutory notice was not provided.
- Denials of motions to reopen are reviewed for abuse of discretion, and the BIA has broad discretion to grant or deny reopening.
- Ineffective assistance of counsel may support reopening or tolling in some cases, but relief depends on timely pursuit of remedies and a sufficient showing to justify excusing delay.
- The BIA’s decision whether to reopen proceedings on its own motion under 8 C.F.R. § 3.2(a) is discretionary, and refusal to exercise that authority is reversible only for clear abuse of discretion.

## Conclusion

The Eleventh Circuit upheld the BIA’s refusal to reopen Anin’s in absentia deportation order because hearing notice served by certified mail on counsel was legally sufficient, the second motion to reopen was filed well outside the 180-day deadline without adequate diligence to warrant tolling, and the BIA acted within its discretion in declining sua sponte reopening.


Anin v. Reno, 188 F.3d 1273 (11th Cir. 1999)