Maghradze v. Gonzales

• Decision Date: 26 July 2006
• Docket Number: Docket No. 05-5939-AG.
• Citation: 462 F.3d 150
• Parties: Giorgi MAGHRADZE, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

462 F.3d 150

Giorgi MAGHRADZE, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

Docket No. 05-5939-AG.

United States Court of Appeals, Second Circuit.

Submitted June 22, 2006.

Decided July 26, 2006.

Scott D. Pollock, Scott D. Pollock & Associates, P.C., Chicago, IL, for Petitioner (on submission).

Frances C. Trapp, Assistant United States Attorney (Reginald I. Lloyd, United States Attorney, on the brief), Columbia, SC, for Respondent (on submission).

Before JACOBS and POOLER, Circuit Judges, and KORMAN, District Judge.^*

JACOBS, Circuit Judge.

Giorgi Maghradze ("Maghradze") petitions for review of the decision of the Board of Immigration Appeals ("BIA") affirming the order of Immigration Judge Michael Rocco ("IJ"), which denied Maghradze's motions to rescind an in absentia order of removal and to re-open removal proceedings. See In re Giorgi Maghradze, No. A 79 072 367 (B.I.A. Nov. 7, 2005), aff'g No. A 79 072 367 (Immig. Ct. Buffalo August 17, 2005). The BIA [i] determined that an alien who was in constructive receipt of notice of his pending removal hearing is ineligible for rescission of an in absentia order of removal, [ii] denied Maghradze's motion to rescind on the ground that he was in constructive receipt of notice of his pending removal hearing, and [iii] denied Maghradze's motion to reopen on the ground that he had failed to present any evidence that was previously unavailable and could not have been discovered or presented at his initial hearing. Seeing no error, we deny the petition.

I

Giorgi Maghradze, a native and citizen of Georgia, was admitted to the United States in January 1999 on a non-immigrant student visa that expired in December 1999. Maghradze remained in the United States and was apprehended in November 2001 by the Immigration and Naturalization Service ("INS") in Buffalo, New York as he attempted to enter Canada. Maghradze was personally served then and there with a Notice to Appear ("NTA"), which [i]indicated that he was being charged pursuant to INA § 237(a)(1)(C)(i), 8 U.S.C. § 1227(a)(1)(C)(i), with failure to maintain or comply with the conditions of the non-immigrant status under which he was admitted and [ii] instructed him to appear before an IJ at an unspecified future date. The NTA explained that Maghradze had an obligation to appear at all hearings and to provide the INS with updates regarding any address changes.

In January 2002, the immigration court mailed Maghradze a hearing notice at the address listed in the NTA, telling him the date, time, and location of his upcoming hearing. The notice was returned undelivered to the INS. When Maghradze did not appear at the hearing (held in March 2002), the IJ issued an in absentia order of deportation. Like the hearing notice, the order of deportation was sent to Maghradze at the address indicated in the NTA, and was returned undelivered.

On July 18, 2005, Maghradze filed [i] a motion to rescind the in absentia order and [ii] a motion to reopen his case for the purpose of applying for withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 ("CAT"); see also 8 C.F.R. § 1208.16(c) (implementing the CAT).¹

The IJ [i] denied the motion to rescind on the ground that Maghradze had been properly served with notice and [ii] denied the motion to reopen on the ground that Maghradze had failed to establish a legal basis for reopening his proceeding. The BIA affirmed the IJ by written opinion.

II

"We review the BIA's underlying conclusions of law de novo," although — pursuant to Chevron, U.S.A., Inc. v. Natural Res. Defense Council Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) — we defer to the BIA's interpretations of ambiguous provisions of the INA unless those interpretations are "`arbitrary, capricious, or manifestly contrary to the statute.'" Mardones v. McElroy, 197 F.3d 619, 624 (2d Cir.1999) (quoting Chevron, 467 U.S. at 844, 104 S.Ct. 2778). When the BIA has applied the correct law, we review the decision to deny a motion to reopen or a motion to rescind for abuse of discretion. See Guan v. BIA, 345 F.3d 47, 48 (2d Cir.2003); see also Iavorski v. INS, 232 F.3d 124, 128 (2d Cir.2000) ("When the BIA has applied the correct law, its decision to deny a motion to reopen . . . is reviewed to determine `whether the decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.'" (quoting Fuentes-Argueta v. INS, 101 F.3d 867, 870 (2d Cir.1996) (per curiam))). We will find an abuse of discretion "only in those limited circumstances where the BIA's decision (1) provides no rational explanation, (2) inexplicably departs from established policies, (3) is devoid of any reasoning, or (4) contains only summary or conclusory statements." Song Jin Wu v. INS, 436 F.3d 157, 161 (2d Cir.2006) (internal quotation marks omitted). Agency fact-finding is reviewed for substantial evidence. See Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir. 2004).

III

In affirming the IJ's dismissal of the motion to rescind, the BIA reasoned as follows. Pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii), an order of removal entered in absentia can be rescinded upon a motion to reopen that is filed at any time if the alien demonstrates that he did not receive notice of the removal proceedings in accordance with 8 U.S.C. § 1229(a). See BIA Decision at 1. According to 8 U.S.C. § 1229a(b)(5)(A), written notice of the hearing is a sufficient predicate for entry of an in absentia order of removal if that notice was "provided" at the most recent address provided by the alien pursuant to 8 U.S.C. § 1229(a)(1)(F). See BIA Decision at 1 (citing 8 U.S.C. § 1229a (b)(5)(A) and Matter of M-D-, 23 I. & N. Dec. 540, 543 (BIA 2002)). The alien also has the obligation to inform the Attorney General in writing as to any change in the alien's address or telephone number. See id. (referencing 8 U.S.C. § 1229(a)(1)(F)). In light of this statutory scheme, the BIA concluded that notice sufficed here because: [i] Maghradze was personally served with the NTA, which advised him as to the change of address requirements and as to the consequences of failing to appear for the scheduled hearing; [ii] the hearing notices were mailed to Maghradze's last address of record as reflected on the NTA — "50 Wyoming Street, Buffalo, N.Y. 14215"; and [iii] Maghradze's asserted excuse for failure to comply with § 1229(a)(1)(F) — that he did not understand his obligation to update his address — was not viable. See id. at 1-2.

Maghradze argues that he is eligible for rescission of his in absentia order of removal because he did not actually receive notice of his pending hearing. As Maghradze contends, the BIA's decision can be read to say that, under 8 U.S.C. § 1229a(b)(5)(C)(ii), the in absentia order may not be rescinded if notice was provided in conformity with the requirements of 8 U.S.C. § 1229(a), regardless of whether the properly-provided notice was actually received by the alien. Such an interpretation would conflict with cases in several circuits, which distinguish between [i] the requirement that a motion to rescind shall not be granted unless the alien demonstrates that he did not "receive" notice in accordance with 8 U.S.C. § 1229(a), see § 1229a (b)(5)(C)(ii), and [ii] the requirement that an in absentia order shall be entered so long as notice was "provided" properly, see § 1229a(b)(5)(A). See, e.g., Joshi v. Ashcroft, 389 F.3d 732, 736 (7th Cir.2004) (vacating BIA's denial of motion to reopen where BIA ignored objective evidence that postal service failed to deliver notice of the removal hearing); Gurung v. Ashcroft, 371 F.3d 718, 722 (10th Cir. 2004). These cases suggest that an alien may overcome the presumption that he actually received notice that was provided in conformity with 8 U.S.C. § 1229(a), thereby establishing eligibility for rescission of his in absentia order of removal under § 1229a(b)(5)(C)(ii).

We do not have to confront this potential conflict because the BIA gave an alternative interpretation of the statutory scheme: even assuming that an alien could rebut the presumption that properly-provided notice was actually received, the alien is deemed to be in constructive receipt of properly-provided notice — and hence ineligible for rescission of his in absentia order of removal — if he thwarted delivery. See BIA Decision at 2 n. 1 (citing Sabir v. Gonzales, 421 F.3d 456, 459 (7th Cir. 2005)). According to the BIA, "[i]n this case, [Maghradze] thwarted delivery by relocating and failing to provide a change of address. Thus, reopening is not warranted. . . ." Id.

Because the meaning of "receive notice in accordance with 8 U.S.C. § 1229(a)," § 1229a(b)(5)(C)(ii), is ambiguous, the BIA's interpretation is entitled to Chevron deference. We conclude that the BIA's (alternative) interpretation — that aliens who fail to provide a written update of a change of address are deemed to have constructively received notice provided in accordance with the requirements of 8 U.S.C. § 1229(a) — is permissible. Especially in light of the Supreme Court's admonition that motions to reopen are disfavored, see INS v. Abudu, 485 U.S. 94, 107, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) ("There is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases."), the distinction drawn in the statutory language between the provision of notice by the agency and its receipt by the alien is quite plausibly construed as applying only when the alien has acted in conformity with his obligations, and failure of receipt thus resulted from circumstances beyond his control. See Gurung, 371 F.3d at 722 (holding that to demonstrate...