Peralta-Cabrera v. Gonzales

• Decision Date: 07 September 2007
• Docket Number: No. 06-2254.,06-2254.
• Citation: 501 F.3d 837
• Parties: Olger G. PERALTA-CABRERA, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

501 F.3d 837

Olger G. PERALTA-CABRERA, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 06-2254.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 2007.

Decided September 7, 2007.

Richard L. Breitman (argued), Bloomington, MN, for Petitioner.

Jill E. Zengler, Shelese M. Woods, Margaret A. Schutte (argued), Office of the United States Attorney, Indianapolis, IN, Karen Lundgren, Department of Homeland Security Office of the Chief Counsel, Chicago, IL, for Respondent.

Before RIPPLE, EVANS, and WILLIAMS, Circuit Judges.

EVANS, Circuit Judge.

This is the second time that we are called to address Olger Peralta-Cabrera's case, in which he petitions for review of the Board of Immigration Appeals's (BIA) decision upholding the immigration judge's (IJ) denial of his motion to reopen. The material facts are not disputed, and although we briefly discussed them in a 2006 order, we recount them here for the sake of clarity.

In November 1994, an IJ in Chicago ordered Peralta-Cabrera deported¹ in absentia to his home country of Ecuador. Eight years later Peralta-Cabrera moved to reopen his deportation hearing, claiming that he failed to appear at the 1994 hearing because he never received a notice of the hearing's time or place. See 8 U.S.C. § 1252b(c)(3)(B) (1988). He asked the IJ to rescind his in absentia deportation order and also moved to change venue to the immigration court in Bloomington, Minnesota, where he and his family then resided. In a memorandum and affidavit supporting his motion, Peralta-Cabrera expounded upon his claim that he did not receive notice of his 1994 deportation hearing.

Peralta-Cabrera began by explaining that he and a traveling companion named Eloy Espinoza entered the United States (at San Ysidro, California) in July 1994 "without inspection," a euphemistic way of saying they entered illegally. A few days later the duo ended up at O'Hare International Airport in Chicago, Illinois, where agents of the now-defunct Immigration and Naturalization Service (INS) arrested the men for their illegal entry. See 8 U.S.C. § 1251(a)(1)(B) (1988). Upon their arrest, Espinoza telephoned his brother-in-law who lived in Chicago — Florentine Arias, a central player in this story — and asked him to come to O'Hare and help him and Peralta-Cabrera seek their release. While he was detained awaiting Arias's arrival, Peralta-Cabrera spoke with an immigration agent regarding where he would live while his deportation proceedings were pending. He informed the agent that he had never before been to Chicago, had no place in the city to live, and knew no one in the city. Therefore, Peralta-Cabrera stated, he would go with Espinoza to stay with Arias while the proceedings played out.

Meanwhile, Peralta-Cabrera continued, Arias arrived at O'Hare and spoke with immigration agents regarding Peralta-Cabrera's and Espinoza's release. The agents sought from Arias information regarding how the immigration authorities could reach the two men to provide them with information regarding their upcoming deportation hearings; Arias responded that both men would stay at his apartment in Chicago's Wrigleyville neighborhood — 841 West Cornelia Street, Chicago, Illinois, 60657. The agents with whom Arias spoke used that address when completing a variety of administrative forms regarding Peralta-Cabrera's arrest and release; among these forms was the agency's Order to Show Cause, the document upon which immigration authorities would rely to obtain Peralta-Cabrera's contact information so they could, in turn, mail to him notice of the time and place of his deportation hearing.

After the paper work was completed, Peralta-Cabrera further recounted, an immigration agent reviewed the forms with him and asked if his contact information — that is, the Cornelia Street address provided by Arias — was correct; Peralta-Cabrera responded that it was. The agent then informed Peralta-Cabrera that in a few weeks immigration authorities would mail to Arias's address a hearing notice that contained information regarding the time and place of his upcoming deportation hearing. Peralta-Cabrera was then released. He proceeded to take up residence in Arias's apartment on Cornelia Street, as he said he would. However, he never received the hearing notice, or, for that matter, any other document regarding his deportation hearing.

Having received no word from immigration authorities, Peralta-Cabrera stated that in late 1994 he packed up his possessions and traded Wrigleyville for the Minneapolis-St. Paul area in Minnesota. Time passed, and in 2002 Peralta-Cabrera's employer submitted a petition for an immigrant visa on his behalf. After the visa was granted, Peralta-Cabrera applied to adjust his status to a permanent resident. However, the INS denied Peralta-Cabrera's application, saying he was ineligible to adjust his status. The INS cited unspecified information submitted with his employer's visa petition and equally unspecified "related files." Curious as to what would prevent him from adjusting his status, Peralta-Cabrera obtained a copy of his immigration file, which contained many documents that, until that moment, he did not know existed. Specifically, the file contained a photocopy of a hearing notice dated August 10, 1994, stating that a deportation hearing before an IJ was scheduled for November 23, 1994. Attached to the notice were two documents. The first document was a copy of a receipt for certified mail, showing that the notice was mailed the same day that it was issued and that it was addressed to the following recipient: "Peralta-Cabrera, Olger Gonzalo, 841 West Cornelia, Chicago, IL 60657." Also attached to the notice was a copy of an envelope bearing a stamp that read: "RETURN TO SENDER — ATTEMPTED NOT KNOWN," and handwritten notes reading "UNK" (presumably short for "unknown") and "8/12/94." The file also contained the IJ's decision of November 23, 1994, in which he ordered Peralta-Cabrera deported in absentia; attached to the decision was another photocopy of a receipt for certified mail, showing that the decision was mailed on the same day it was issued to the same address as the hearing notice, and another photocopy of an envelope, bearing both a postmark of November 23, 1994, and another "ATTEMPTED NOT KNOWN" stamp.

Confused as to why the hearing notice was not delivered to him in Chicago when it was sent to the address he provided to the immigration agents, Peralta-Cabrera stated that he contacted Arthur Roxas, an attorney with the U.S. Postal Service, to see if he could shed some light on the matter. After Peralta-Cabrera described the documents in his immigration file, Roxas informed him that, under Postal Service regulations, mail addressed to a person who does not reside at an address, but is merely visiting the address, will not be delivered unless the mail is addressed "in care of" the individual whom he is visiting. Roxas also provided Peralta-Cabrera with the Postal Service internal regulations setting forth the policy. Armed with this information, Peralta-Cabrera moved to reopen his deportation proceedings on the basis that he never received notice.

Although the IJ accepted Peralta-Cabrera's version of the facts, he nevertheless denied the motion to reopen, reasoning that it was solely Peralta-Cabrera's responsibility to specify that his mail needed to be addressed to him "in care of" Arias, and thus "he can be `charged' with receiving notice which was sent to the only address he provided." Peralta-Cabrera appealed to the BIA, which upheld the denial of the motion to reopen. Like the IJ, the BIA had no issue with the facts as presented by Peralta-Cabrera but echoed the IJ's determination that Peralta-Cabrera was properly charged with receiving the notice.

Peralta-Cabrera then petitioned us to review the BIA's decision. While his petition was pending, however, Peralta-Cabrera was deported back to Ecuador. We nevertheless addressed the case, but instead of assessing the merits of Peralta-Cabrera's arguments we accepted the government's suggestion to remand the case to the BIA so it could examine whether Peralta-Cabrera could be charged with receiving notice of his deportation hearing under our then-recently announced decision in Sabir v. Gonzales, 421 F.3d 456 (7th Cir.2005). We accordingly ordered the BIA to examine whether, under Sabir, Peralta-Cabrera thwarted the Postal Service's attempts to deliver the notice and, if not, whether the motion to reopen should be granted on the basis that he did not receive notice. See Peralta-Cabrera v. Gonzales, 161 Fed.Appx. 594, 595 (2006) (unpublished opinion).

On remand, the BIA again upheld the IJ's denial of Peralta-Cabrera's motion to reopen. The BIA first noted that it lacked jurisdiction to address Peralta-Cabrera's case because his deportation constituted a withdrawal of his motion to reopen. See In re G-N-C-, 22 I. & N. Dec. 281 (B.I.A. 1998). However, this determination did not keep the BIA from concluding that Peralta-Cabrera thwarted service of his hearing notice by not informing the INS agents at the time of his arrest that his mail needed to be addressed to him "in care of" Arias; as the BIA stated, "[i]t was not the INS' responsibility to guess that the addition of those words might be necessary." The BIA accordingly dismissed Peralta-Cabrera's appeal.

Which brings us to today, with Peralta-Cabrera again petitioning us to review the BIA's decision upholding the IJ's denial of his motion to reopen. Before we reach the merits of Peralta-Cabrera's arguments, however, the BIA's terse disavowal of jurisdiction requires us to address a vital (and thorny) issue: whether Peralta-Cabrera's case remains justiciable in light of the fact that he no longer is in the United States. This examination first requires us to determine whether the Immigration and Naturalization Act (INA) provides a basis for us to exercise...