CAMAJ v. HOLDER

• Decision Date: 08 November 2010
• Docket Number: No. 09-3926.,09-3926.
• Citation: 625 F.3d 988
• Parties: Anton CAMAJ, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

625 F.3d 988

Anton CAMAJ, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 09-3926.

United States Court of Appeals,Sixth Circuit.

Nov. 8, 2010.

ON BRIEF: Caridad Pastor Cardinale, Pastor & Associates, P.C., Troy Michigan, for Petitioner. Anthony P. Nicastro, Ernesto H. Molina, Jr., United States Department of Justice, Washington, D.C., for Respondent.

Before: GUY and GRIFFIN, Circuit Judges; BARZILAY, Judge. ^*

OPINION

BARZILAY, Judge.

Petitioner-Appellant Anton Camaj seeks review of an order of the Board of Immigration Appeals (“the Board”) affirming an Immigration Judge's (“IJ”) denial of his motion to reopen proceedings after the issuance of an in absentia deportation order. He challenges the validity of the order on the grounds that he did not receive legally sufficient notice of the hearing at which he failed to appear or, in the alternative, that the IJ unlawfully treated his slight tardiness to the hearing as a failure to appear. For the reasons below, we find that the IJ did not abuse her discretion in finding sufficient notice, and we further must find that we do not have subject matter jurisdiction to consider Camaj's alternative claim. Therefore, we affirm the Board's decision and deny Camaj's petition for review.

I. Background & Procedural History

This is the second time this matter has come before our Court. In the previous, October 2003 opinion, we summarized the relevant facts as follows

The petitioner, Anton Camaj, is a native and citizen of the former Yugoslavia. He entered the United States without inspection in 1994. The Immigration and Naturalization Service initiated deportation proceedings against Mr. Camaj in March of 1995 by personally serving him with an Order to Show Cause and Notice of Hearing. The hearing was set for 9:00 a.m., April 13, 1995, at an address on East Jefferson Street in Detroit, Michigan.

Mr. Camaj appeared at the appointed time and place on April 13, 1995, but the hearing-which the immigration judge conducted by telephone from Chicago-was continued so that Camaj could obtain counsel. In resetting the hearing for 10:00 a.m. on April 27, 1995, the immigration judge advised Mr. Camaj that deportation could be ordered in his absence if he did not appear. The judge's clerk, who was also located in Chicago, sent Mr. Camaj notice by certified mail of the date, time, and place of the continued hearing. The place was the same East Jefferson Street location to which Mr. Camaj had reported for the initial hearing.

On April 27, 1995, Mr. Camaj again appeared at the appointed time and place. Again, the immigration judge conducted the hearing by telephone from Chicago. Now represented by an attorney, Paul Hughes, Camaj conceded deportability but requested asylum in the United States. The hearing was then continued until 9:00 a.m. on September 25, 1995, and the immigration judge reminded Mr. Camaj of the consequences of a failure to appear. No mention was made in court of the location of the continued hearing.

Later in the day the immigration judge's clerk sent notice to Mr. Hughes, by certified mail, that the September 25 hearing would be held at 9:00 a.m. at the U.S. Courthouse on West Lafayette Street in Detroit-a different location than that of the April 13 and 27 hearings. About two months after receiving the notice, Hughes wrote Camaj a letter reminding him of the hearing. The letter is not in the record, and we can only speculate as to whether it said anything about the change in location.

By 9:34 a.m. on September 25, 1995, Mr. Camaj had not appeared for the hearing at the West Lafayette Street courthouse. After stating that Camaj had received proper notice of the hearing, the immigration judge (now physically present in Detroit) found that Camaj had abandoned his claims for relief from deportation. The judge therefore ordered him deported.

Camaj v. INS, 78 Fed.Appx. 465, 466-67 (6th Cir.2003) (unpublished) (footnote omitted).

Camaj timely appealed. Upon review, this court held that, pursuant to 8 U.S.C. § 1252b(a)(2) and (c)(1), ¹ the Immigration Court must have provided Camaj with written notice of the date, time, and location of the missed hearing “in person,” if “practicable,” before issuing the in absentia deportation order. Id. at 467; see § 1252b(a)(2) & (c)(1). If not practicable, service of notice upon Camaj's counsel, which occurred, would suffice. Camaj, 78 Fed.Appx. at 467. Specifically, the court noted that

[i]f Camaj was “present in immigration court” on April 27, 1995, when his hearing was continued until September 25, the immigration judge was some 300 miles away, as was the clerk who mailed notice of the continued hearing to Camaj's attorney. We do not know what court personnel, if any, were with Camaj in the Detroit hearing room, or whether it would have been practicable for any such personnel to receive and turn over to Camaj a notice transmitted from Chicago electronically, or whether it would have been practicable for the immigration judge or her clerk to have had someone in Detroit prepare a written notice for Camaj before he left the building.

Id. at 468. Accordingly, the court remanded the matter to the Board, ordering it to examine the particular facts and circumstances as they existed in 1995 at the East Jefferson Street location to determine the practicability of in-person service upon Camaj. Id. at 469. The Board then further remanded the matter to a new IJ. ² J.A. 119.

On October 23, 2007, after an evidentiary hearing and consulting both parties' briefs, the IJ issued an oral decision finding in-person service upon Camaj to have been impracticable. J.A. 5-8. In reaching this conclusion, the IJ relied in substantial part on the affidavit of Michael Dobson, a former Assistant District Counsel for the INS who represented the government in this matter in 1995. J.A. 12-14, 106-07. Dobson was present at the April 27 “master hearing” where the September 25 hearing at issue was scheduled. J.A. 12-13, 106. In his affidavit, he noted that master hearings at the East Jefferson Street location occurred in a hearing room where the IJ presided telephonically. J.A. 13, 106. At that time, there existed no immigration court facility in Detroit, Michigan, and no court personnel were present at the East Jefferson Street location. J.A. 13, 106. Moreover, Dobson indicated that there was no facsimile, telefacsimile, or other electronic equipment in the hearing room through which the Immigration Court could have sent Camaj notice. J.A. 14, 106. In addition to Dobson's affidavit, the IJ relied upon the transcript of the April 27 hearing, noting that the only parties physically present at the hearing were Camaj and counsel. J.A. 13-14. Finally, the IJ noted that it was not practicable to locate a third party to personally deliver notice to Camaj at the April 27 hearing. J.A. 17.

Camaj appealed to the Board, which upheld the IJ's decision without opinion. J.A. 1-2. Camaj again appealed to this Court.

II. Standard of Review

[1] [2] [3] The court reviews a denial of a motion to reopen for an abuse of discretion. Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir.2006). The court will disturb a denial only if it was made “without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Id. (citation & internal quotation marks omitted). When, as in this case, the Board summarily affirms an IJ's reasoning, we review the IJ decision directly. Denko v. INS, 351 F.3d 717, 723 (6th Cir.2003).

A. Sufficiency of Notice

[4] Camaj asserts that the IJ abused her discretion in denying his petition because “[p]ersonal service was practicable at the time of the [ ] proceedings.” Appellant Br. 8. In support of this contention, Camaj states that:

INS agents at the [East Jefferson Street location] welcomed the persons who had hearings, reviewed their hearing notices, checked the list to make sure they were on the hearing list for that day and even provided water and bathroom facilities for the persons attending hearings. All that would have been required to personally serve the Petitioner would be for the IJ to fax the order with the new date, time and location from the Chicago Immigration Court where she was located to the [East Jefferson Street location] where the INS agent could have handed it to the Petitioner. Certainly in 1995, the INS government office located at the [East Jefferson Street location] would surely have had a fax machine.

Appellant Br. 8-9. However, Camaj supplied no evidence establishing these facts, even though he bore the burden of doing so. ³ See Scorteanu v. INS, 339 F.3d 407, 411 (6th Cir.2003) (“[I]n seeking recision of an in absentia deportation order, the burden rests on the movant to demonstrate ... improper notice....”) (citation omitted). Rather, he submitted only his sworn affidavit, a memorandum filed by the INS in 1996, a partial transcript of the April 27 hearing, and a map given to him by INS agents directing him to the proper location of the September 25 hearing. J.A. 112-15. None of this evidence describes the personnel or technology present at the East Jefferson Street location. Moreover, during the evidentiary hearing, the IJ inquired into the basis for Camaj's assertions regarding available personnel, but found his explanations unconvincing. See J.A. 81-85. The IJ consequently relied upon Dobson's uncontroverted affidavit to find in-person service of notice upon Camaj impracticable. J.A. 13-14. Given the dearth of evidence supporting Camaj's claim, the IJ's finding did not constitute an abuse of discretion. The court therefore finds that the service of notice upon Camaj's counsel by certified mail fulfilled the notice requirement of § 1252b(a)(2).

B. Mere Tardiness as a Failure to Appear

[5] [6] Camaj alternatively raises the compelling argument that the IJ...