USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]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.