Fuentes-Argueta v. I.N.S.

• Decision Date: 04 December 1996
• Docket Number: D,P,No. 356,FUENTES-ARGUET,356
• Citation: Fuentes-Argueta v. I.N.S., 101 F.3d 867 (2nd Cir. 1996)
• Parties: Nery Esperanzaetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Edward McElroy, District Director of INS, Janet Reno, United States Attorney General, Respondents. ocket 96-4001.
• Court: U.S. Court of Appeals — Second Circuit

Page 867

101 F.3d 867

Nery Esperanza FUENTES-ARGUETA, Petitioner, v.IMMIGRATION AND NATURALIZATION SERVICE, Edward McElroyDistrict Director of INS, Janet Reno, United States Attorney General, Respondents.

No. 356, Docket 96-4001.

United States Court of Appeals Second Circuit.

Argued Oct. 4, 1996.

Decided Dec. 4, 1996.

Bruno Joseph Bembi, Hempstead, NY, for Petitioner.

Pierre M. Gentin, Assistant United States Attorney for the Southern District of New York, New York City(Mary Jo White, United States Attorney, Steven M. Haber, Assistant United States Attorney for the Southern District of New York, New York City), for Respondents.

Before: KEARSE, LEVAL, and CABRANES, Circuit Judges.

PER CURIAM:

The petitioner, a citizen of El Salvador, was arrested for allegedly entering the United States without inspection by U.S. immigration officials.The Immigration Judge ("IJ") assigned to her case sent her notice of a February 9, 1993, deportation hearing by certified mail to her address in Jamaica, New York.Although postal records indicate that delivery of the notice was attempted on two separate occasions and notification was left that the post office was holding a delivery for the petitioner, no one signed for the delivery or claimed the mailing at the post office.Accordingly, the notification was ultimately returned to the IJ as "unclaimed."As the petitioner failed to attend the February 9 hearing, the IJ entered an order of deportation in absentia.The petitioner argues that, under these circumstances, she was not afforded the notice required under § 242B of the Immigration and Nationality Act,8 U.S.C. § 1 et seq.(the "Act"), and the Due Process Clause of the Fifth Amendment, and that it was therefore improper for the IJ to enter an in absentia order of deportation.In addition, based on the IJ's initial failure to recognize attorney Bruno Joseph Bembi as her counsel of record, the petitioner argues that the IJ interfered with her constitutional and statutory right to counsel in deportation proceedings.

We find these claims to be without merit.The Board of Immigration Appeals("BIA") has previously found that, where an alien is sent notice of an upcoming deportation hearing by certified mail, the fact that the notice is returned "unclaimed" does not render that notice inadequate under the § 242B provision governing in absentia deportation orders.Rather, the BIA has applied a presumption that, so long as the IJ sent proper notification to the alien's last known address by certified mail, notice was adequate, unless the alien can present evidence that the post office did not in fact attempt to deliver the notice or that any attempted delivery was somehow performed improperly.We find this to be a reasonable interpretation of the Act and one that comports with the requirements of Due Process.In this case, the BIA did not abuse its discretion in upholding the IJ's refusal to reopen petitioner's deportation proceedings based on its conclusion that the petitioner had failed to rebut the presumption of adequate delivery of notice.Nor do we find any merit in the petitioner's claim that she was denied assistance of counsel in her deportation proceedings.

I.BACKGROUND

The petitioner, Nery Esperanza Fuentes-Argueta("Fuentes" or "petitioner"), was arrested at or near Laredo, Texas, on August 24, 1992.A citizen of El Salvador, she is alleged to have crossed the border from Mexico into Texas on August 23, 1992, without inspection by U.S. immigration officials in violation of 8 U.S.C. § 1251(a)(1)(B).Although she was released from custody, Fuentes was served with an order to show cause why she should not be deported.The order informed her that she would subsequently receive notice of the time, date, and location of her deportation hearing.

District Counsel for the Immigration and Naturalization Service("INS") in San Antonio, Texas, received a letter dated September 29, 1992, from attorney Bruno Joseph Bembi informing the INS that Fuentes had moved to Jamaica, New York, providing the INS with her new address, and requesting that her case file be transferred to an INS office in New York City.The IJ assigned to the petitioner's case responded to Bembi in mid-October, advising him that his September 29 letter could not serve as a formal motion for a change of venue because Bembi had not yet submitted a notice of appearance as counsel for Fuentes and because his letter did not allege facts normally set forth in a motion for change of venue.The IJ's letter also informed Bembi that Fuentes had been sent a notice on October 14 informing her that her deportation hearing was set to take place in San Antonio, Texas on November 17, 1992.

The IJ sent the October 14, 1992, notice to Fuentes via certified mail at her address in Jamaica, New York.The notification was signed for at that address, and Fuentes concedes that she received it.Nevertheless, she failed to appear at her November 17 deportation hearing.Pursuant to a request from counsel for the INS, the IJ rescheduled the petitioner's hearing for February 9, 1993.On November 18, 1992, the IJ sent another Notice of Hearing in Deportation Proceedings to Fuentes, again by certified mail, informing her of the location, date, and time of the rescheduled hearing.According to postal records, two attempts were made to deliver the notification at the petitioner's Jamaica, New York, address, and notices were left indicating that the post office was holding mail for her.Because no one signed for the notification on either occasion and the petitioner did not claim the delivery at the post office, the notification was ultimately returned to the IJ "unclaimed."

The petitioner failed to appear at her rescheduled, February 9, 1993, deportation hearing.Accordingly, the IJ issued an order of deportation in absentia, a copy of which was sent to the petitioner.In late August, 1993, Bembi filed, for the first time, a notice of appearance as counsel for the petitioner, and he moved to reopen her deportation proceedings.In an order dated October 8, 1993, the IJ denied the motion to reopen, and the petitioner did not exercise her right to appeal to the BIA.

Instead, on September 9, 1994, Fuentes again moved to reopen her deportation proceedings.In the memorandum supporting her motion, the petitioner argued, inter alia, that new evidence--namely, the postal service's return receipts indicating that the notice of the February 9 deportation hearing had been returned to the IJ "unclaimed"--supported her position that she had never received the notice.To further bolster her claim, the petitioner included an affidavit in which she states: "I was not aware that I had a hearing."The IJ again denied the petitioner's motion to reopen, concluding that the mailing of the notice to Fuentes's last known address was sufficient to satisfy any notice requirements under the Act.The petitioner filed a timely appeal with the BIA.

The BIA affirmed the IJ's decision denying the petitioner's motion to reopen her deportation proceedings.In its decision, the BIA relied on In re Grijalva, Interim Decision 3246, 1995 WL 314388(B.I.A.Apr. 28, 1995), to reject the petitioner's claim that the IJ's efforts to notify her of the February 9, 1993, deportation hearing failed to meet either statutory or due process requirements for adequate notice.Grijalva established a strong presumption that the postal service has in fact attempted to deliver certified mail--even in cases where the item is returned "unclaimed"--and holds that this attempted delivery by certified mail is itself sufficient to meet the notice requirements of the Act.Finding that the petitioner in the instant case had failed to supply evidence sufficient to overcome the presumption that the post office took proper steps to deliver the notification, the Board rejected her claim of inadequate notice and upheld the IJ's decision denying her motion to reopen deportation proceedings.

Fuentes petitions this court for review of the BIA decision affirming the IJ's denial of her motion to reopen deportation proceedings.We address her claims in turn.

II.DISCUSSION

We have jurisdiction to review decisions of the Board of Immigration Appeals pursuant to 8 U.S.C. § 1105a(a), and we review a BIA decision to deny an alien's motion to reopen deportation proceedings "only to determine whether the decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,"Vargas v. INS, 938 F.2d 358, 360(2d Cir.1991).Moreover, we afford "substantial deference" to an agency's reading of statutes that Congress has entrusted it to interpret.SeeOsorio v. INS, 18 F.3d 1017, 1022(2d Cir.1994).Accordingly, we will defer to the BIA's reading of the Act unless "it appears from the statute or its legislative history that the interpretation is contrary to Congress's intent."Id.(internal quotation marks and citation omitted).

A.Insufficient Notice Under the Act

Prior to 1990, § 242(b) of the Act, 8 U.S.C. § 1252(b), was the only statutory provision authorizing immigration judges to issue deportation orders in absentia.SeeRomero-Morales v. INS, 25 F.3d 125, 128(2d Cir.1994).Section 242(b) provides that

[i]f any alien has been given a reasonable opportunity to be present at a proceeding under this section, and without reasonable cause fails or refuses to attend or remain in attendance at such proceeding, the special inquiry officer may proceed to a determination in like manner as if the alien were present.

8 U.S.C. § 1252(b)(emphasis supplied).As for notice, § 242(b)(1) instructs the Attorney General to prescribe regulations providing the alien with "notice, reasonable under all the circumstances, of the nature of the charges against him and of the time and place at which the proceedings will be held."8 U.S.C. § 1252(b)(1).

In 1990, however, without repealing § 242(b), Congress amended the Act to add §...