Ojeda-Calderon v. Holder, No. 12–60512.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtEMILIO M. GARZA
Citation726 F.3d 669
PartiesJuan Carlos OJEDA–CALDERON, Petitioner v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
Decision Date08 August 2013
Docket NumberNo. 12–60512.

726 F.3d 669

Juan Carlos OJEDA–CALDERON, Petitioner
v.
Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 12–60512.

United States Court of Appeals,
Fifth Circuit.

Aug. 8, 2013.


[726 F.3d 671]


Paul O'Dwyer, Attorney, New York, NY, for Petitioner.

Nancy Ellen Friedman, Trial Attorney, Tangerlia Cox, U.S. Department of Justice, Washington, DC, for Respondent.


Petition for Review of an Order of the Board of Immigration Appeals.
Before JONES, SMITH, and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Petitioner Ojeda–Calderon (“Ojeda”) petitions this court for review of the Board of Immigration Appeals (“BIA”) decision denying his appeal from the decision of the Immigration Judge (“IJ”) that denied his motion to reopen his in absentia deportation proceedings, rescind the in absentia deportation order, stay deportation, and change venue. Ojeda contends the BIA abused its discretion in denying his appeal because (1) he never received the notice of his deportation hearing; (2) the notice of hearing (“NOH”) was statutorily deficient under 8 U.S.C. § 1252b(a)(3)(A) because it was written only in English and not also in Spanish; and (3) due process requires that a NOH be in a language the alien can understand. We DENY Ojeda's petition for review.

I

Ojeda is a native and citizen of Ecuador who entered the United States without

[726 F.3d 672]

inspection on or about April 12, 1995. The Immigration and Naturalization Service (“INS”) personally served Ojeda with an order to show cause (“OSC”), written in English and Spanish, charging him with being subject to deportation. The order noted that a hearing would be calendared and that notice would be given to the address Ojeda provided.

At the hearing, the IJ ordered Ojeda released from custody on bond. Ojeda informed the IJ that upon his release he would reside with his friend Julio Alberto Ortiz in Astoria, New York. A NOH was delivered to Ojeda's attorney, Monty Roberson, informing him that a hearing was scheduled for June 1, 1995. Ojeda did not appear and Roberson withdrew as counsel.

A NOH, written in English and dated June 1, 1995, was sent by certified mail to the Astoria, New York address Ojeda provided notifying Ojeda that a deportation hearing was scheduled for June 22, 1995, in El Paso, Texas. The return receipt was signed by Delores Ortiz. When Ojeda did not appear at the hearing on June 22, 1995, the IJ ordered him removed to Ecuador in absentia.

On February 22, 2011, through counsel, Ojeda filed a motion to vacate the in absentia deportation order, to stay deportation, and for a change of venue so that he could apply for adjustment of status based on an approved immediate relative petition. The IJ denied the motion. Ojeda appealed the IJ's decision to the BIA. The Government moved for summary affirmance. The BIA dismissed the appeal, agreeing with the IJ's holding that Ojeda could be charged with notice of his deportation hearing. The BIA held Ojeda presented no exceptional circumstances warranting sua sponte reopening. The BIA rejected Ojeda's argument that the NOH was statutorily deficient, stating that he “ha[d] not cited to any statute, regulation, or case law which requires a notice of hearing, sent after an OSC is issued, to be in Spanish.” The BIA held that “even if this was required, [Ojeda] cannot establish prejudice because his whole claim is premised on the fact he did not ever receive the hearing notice.” Ojeda filed a timely petition for review.

II

We review the denial of a motion to reopen under “a highly deferential abuse-of-discretion standard.” Gomez–Palacios v. Holder, 560 F.3d 354, 358 (5th Cir.2009). The BIA's decision must be upheld as long as it “is not capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir.2006) (internal quotation marks and citation omitted). “[M]otions to reopen deportation proceedings are disfavored, and the moving party bears a heavy burden.” Altamirano–Lopez v. Gonzales, 435 F.3d 547, 549–50 (5th Cir.2006) (internal quotation marks and citation omitted). Nonetheless, whether an immigration proceeding violates due process is a purely legal issue, which we review de novo. Ali v. Gonzales, 440 F.3d 678, 681 (5th Cir.2006) (“We review de novo claims of constitutional error in immigration proceedings.”).

We review “the order of the BIA and will consider the underlying decision of the IJ only if it influenced the determination of the BIA.” Gomez–Palacios, 560 F.3d at 358. Although we review questions of law de novo, we accord “deference to the BIA's interpretation of immigration statutes unless the record reveals compelling evidence that the BIA's interpretation is incorrect.” Id. We review the BIA's factual findings for substantial evidence, and we may not overturn the BIA's factual

[726 F.3d 673]

findings unless the evidence compels a contrary conclusion. Chun v. INS, 40 F.3d 76, 78 (5th Cir.1994).

III

First, Ojeda contends he is entitled to rescission of the in abstentia deportation order because he did not receive notice of his deportation hearing.

Because Ojeda's immigration proceedings were initiated prior to the 1996...

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32 practice notes
  • United States v. Perez-Almeida, Criminal No. 3:19-cr-61
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • August 21, 2019
    ...to the Motion to Dismiss were provided to Perez-Almeida in a language that he speaks and understands. See also Ojeda-Calderon v. Holder, 726 F.3d 669, 675 (5th Cir. 2013) ("Due process allows notice of a hearing to be given solely in English to a non-English speaker if the notice would put ......
  • United States v. Hughes, No. 12–60005.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 8, 2013
    ...before his scheduled trial date, Hughes informed the government that he intended to change his plea to guilty. Hughes then changed his [726 F.3d 669]mind, and trial was scheduled to begin April 25 (later continued to June 27). He changed his mind again, and informed the government that he w......
  • Nunez v. Sessions, No. 16-60140
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 8, 2018
    ...is whether the alien actually received the required notice and not whether the notice was properly mailed." Ojeda–Calderon v. Holder , 726 F.3d 669, 673 (5th Cir. 2013) (holding that the BIA did not abuse its discretion in charging the petitioner with receiving a notice of hearing, because ......
  • Zermeno v. Lynch, No. 15–60206
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 31, 2016
    ...appeal. Zermeno timely petitioned for review. II. Generally, we review only the final decision of the BIA. Ojeda–Calderon v. Holder , 726 F.3d 669, 672 (5th Cir. 2013). When, as here, the IJ's ruling affected the BIA's decision, we also review the IJ's decision. Id. “The BIA's conclusions o......
  • Request a trial to view additional results
32 cases
  • United States v. Perez-Almeida, Criminal No. 3:19-cr-61
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • August 21, 2019
    ...to the Motion to Dismiss were provided to Perez-Almeida in a language that he speaks and understands. See also Ojeda-Calderon v. Holder, 726 F.3d 669, 675 (5th Cir. 2013) ("Due process allows notice of a hearing to be given solely in English to a non-English speaker if the notice would put ......
  • United States v. Hughes, No. 12–60005.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 8, 2013
    ...before his scheduled trial date, Hughes informed the government that he intended to change his plea to guilty. Hughes then changed his [726 F.3d 669]mind, and trial was scheduled to begin April 25 (later continued to June 27). He changed his mind again, and informed the government that he w......
  • Nunez v. Sessions, No. 16-60140
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 8, 2018
    ...is whether the alien actually received the required notice and not whether the notice was properly mailed." Ojeda–Calderon v. Holder , 726 F.3d 669, 673 (5th Cir. 2013) (holding that the BIA did not abuse its discretion in charging the petitioner with receiving a notice of hearing, because ......
  • Zermeno v. Lynch, No. 15–60206
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 31, 2016
    ...appeal. Zermeno timely petitioned for review. II. Generally, we review only the final decision of the BIA. Ojeda–Calderon v. Holder , 726 F.3d 669, 672 (5th Cir. 2013). When, as here, the IJ's ruling affected the BIA's decision, we also review the IJ's decision. Id. “The BIA's conclusions o......
  • Request a trial to view additional results

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