[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 98-1728

HATEM MERKHAEL SASSINE,

Petitioner,

v.

STEPHEN FARQUHARSON, DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Chief Judge, Boudin and Lipez, Circuit Judges.

Stephen A. Lagana and Lagana & Associates on brief for petitioner.

October 13, 1998

Per Curiam. Hatem Merkhael Sassine has filed a petition for review of a decision of the Board of Immigration Appeals ("BIA") denying as untimely his motion to reopen his BIA appeal. This court granted a temporary stay of deportation, and we later continued that stay conditional upon Sassine filing his brief on time. Sassine has now filed a timely brief. Sassine argues only one issue on appeal. He contends that his BIA appeal was dismissed due to ineffective assistance of former counsel in failing to file a brief. He does not dispute that his motion to reopen was filed outside the time limitations imposed by 8 C.F.R. 3.2(c)(2). However, he contends that, where ineffective assistance of counsel in a deportation proceeding rises to the level of a due process violation, exceptional circumstances exist requiring the BIA to entertain a late motion to reopen.

We conclude that Sassine's argument fails. The record reveals that Sassine learned in mid-August 1996 that his BIA appeal was dismissed based on counsel's failure to file a brief. Pursuant to 3.2(c)(2), Sassine had approximately six weeks after learning of the dismissal (i.e., until September 30, 1996) to file a motion to reopen. The BIA did not receive his motion to reopen until March 21, 1997. Sassine makes no argument that the tardiness of his motion to reopen was due to ineffective assistance of counsel. Under the circumstances (and without expressing any opinion as to whether former counsel was ineffective or whether ineffective assistance of counsel might ever require the BIA to allow an untimely motion to reopen), we see no basis to set aside the decision of the BIA. For the foregoing reasons, we affirm the decision of the BIA. See Loc. R. 27.1. The stay order is vacatedeffective on issuance of the mandate.