Sanchez v. Holder

• Decision Date: 06 December 2010
• Docket Number: No. 09-3866,09-3866
• Citation: 627 F.3d 226
• Parties: Guilebaldo Ramos SANCHEZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

627 F.3d 226

Guilebaldo Ramos SANCHEZ, Petitioner,

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

No. 09-3866.

United States Court of Appeals, Sixth Circuit.

Dec. 6, 2010.

ON BRIEF: Caridad Pastor Cardinale, Pastor & Associates, P.C., Troy, Michigan, for Petitioner. Todd J. Cochran, United States Department of Justice, Washington, D.C., for Respondent.

Before: DAUGHTREY, GILMAN, and McKEAGUE, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Several years after entering the country illegally, Guilebaldo Ramos Sanchez was apprehended by the Immigration and Naturalization Service (INS), which then initiated deportation proceedings against him. Approximately a year later, a hearing notice was sent to Sanchez by certified mail to the address that he had provided the INS. The notice was returned by the Postal Service with the stamp "undeliverable as addressed-forwarding order expired."

Sanchez failed to appear at the scheduled hearing and was ordered deported in absentia. Nearly 11 years later, immigration officials arrested Sanchez, who then moved to reopen his deportation proceedings. The Immigration Judge (IJ) denied his motion, reasoning that Sanchez had failed to establish reasonable cause for failing to appear at his hearing and that his motion was untimely.

Sanchez appealed to the Board of Immigration Appeals (BIA). The BIA dismissed his appeal, concluding that Sanchez had failed to rebut the strong presumption of effective service that arose because the hearing notice was sent by certified mail to the address that Sanchez had provided. In addition, the BIA agreed with the IJ's determination that Sanchez's motion to reopen was untimely. For the reasons set forth below, we DENY Sanchez's petition for review.

I. BACKGROUND

The relevant facts in this case are undisputed. Sanchez is a citizen of Mexico who entered the United States illegally in April 1991. He was arrested in May 1996 by an agent of the INS and personally served with an Order to Show Cause (OSC), which charged that he was deportable.(Enforcement functions of the INS have since been transferred to the Department of Homeland Security by § 441 of the Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135.) The OSC informed Sanchez, among other things, that (1) a deportation hearing would be scheduled before an IJ; (2) he must provide a current address and notify the Immigration Court of any address changes; (3) a notice containing the time and place of the deportation hearing would be mailed to him at the last address he provided; and (4) if he failed to appear at the hearing, the IJ could order Sanchez deported in absentia. Sanchez provided an address of 316 S. Dean Street, Adrian, Michigan 49221.

The INS initiated deportation proceedings against Sanchez in March 1997 by filing the OSC in Immigration Court. See 8 C.F.R. 1003.14(a) (providing that immigration proceedings begin "when a charging document is filed with the Immigration Court"). In May 1997, the Immigration Court mailed Sanchez a hearing notice by certified mail to the Dean Street address, informing him that his deportation hearing was scheduled for July 8, 1997. The notice was returned to the Immigration Court with the Postal Service stamp "undeliverable as addressed-forwarding order expired." When Sanchez did not appear for the hearing, the IJ ordered him deported in absentia.

On April 2, 2008, Sanchez was arrested by Immigration and Customs Enforcement agents. He filed a motion in Immigration Court two days later to reopen his deportation proceedings. Sanchez argued that because he did not receive the hearing notice, he was entitled to reopening under § 242B(c)(3)(B) of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1252b (1996). He further asserted that he was not at fault for failing to receive the notice because he was still living at the Dean Street address when the notice was sent. The IJ denied the motion to reopen in May 2008, finding that (1) the hearing notice was properly sent by certified mail to the Dean Street address that Sanchez had provided, and (2) the motion was untimely under 8 C.F.R. § 1003.23(b)(4)(iii) because Sanchez filed it more than 180 days after entry of the in absentia deportation order.

Sanchez appealed the IJ's ruling to the BIA. In addition to repeating the arguments that he made to the IJ, Sanchez noted that the hearing notice was returned to the Immigration Court as undeliverable. He argued that his motion was therefore timely because a motion to reopen an in absentia deportation order may be filed at any time if the alien demonstrates that he did not receive proper notice. See 8 U.S.C. § 1252b(c)(3)(B).

The BIA affirmed the IJ's decision. Although the hearing notice was returned undelivered by the Postal Service, the BIA concluded that Sanchez "received notice pursuant to Matter of Grijalva, 21 I. & N. Dec. 27 (BIA 1995)." The BIA reasoned that, under Grijalva, a hearing notice sent by certified mail to the alien's last known address establishes "by clear, unequivocal, and convincing evidence that the alien received 'written notice' of the deportation hearing within the meaning of [8 U.S.C. § 1252b(c)(1) ].... [T]here 'is no requirement that the certified mail return receipt be signed by the alien or a responsible person at his address to effect service.' " (Quoting Grijalva, 21 I. & N. Dec. at 34). The BIA further reasoned that "where a notice of hearing is sent through the United States Postal Service and there is proof of attempted delivery and notification of certified mail, a strong presumption of effective service arises." (Citing Grijalva, 21 I. & N. Dec. at 37.)

In this case, the record shows that the Immigration Court sent the hearing notice by certified mail to Sanchez's Dean Street address. Sanchez never notified the Immigration Court of any address changes. Although Sanchez contended that he was living at the Dean Street address when the hearing notice was sent, he submitted no proof to support his claim. Under the rules set forth in Grijalva, the BIA determined that Sanchez had failed to rebut the presumption that he had received proper notice of his hearing. The BIA therefore dismissed Sanchez's appeal.

Sanchez filed a petition for review and a motion to stay removal with this court in July 2009. In October 2009, we granted his motion to stay removal pending the outcome of his petition.

II. ANALYSIS

A. Standard of review

Where the BIA provides its own reasoning for denying a motion to reopen rather than summarily affirming the IJ, we review the BIA's decision as the final agency determination. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.2009). Our review is conducted under the abuse-of-discretion standard. Acquaah v. Holder, 589 F.3d 332, 334 (6th Cir.2009). "The BIA abuses its discretion when it acts arbitrarily, irrationally[,] or contrary to law." Sswajje v. Ashcroft, 350 F.3d 528, 532 (6th Cir.2003). If the BIA is interpreting a statute that it administers and the statute is silent or ambiguous on a specific issue, then we defer to the BIA's interpretation of the statute so long as the interpretation is reasonable. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999).

B. Governing law

The governing law in this case is found in 8 U.S.C. § 1252b (1996) (also referred to as INA § 242B), which was repealed by § 308(b)(6) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub.L. No. 104-208, 110 Stat. 3009-615 (IIRIRA). Provisions markedly similar to § 1252b now appear in 8 U.S.C. §§ 1229 and 1229a. These successor statutes use the term removal instead of deportation because of a change in the statutory language wrought by IIRIRA. See Garcia-Echaverria v. United States, 376 F.3d 507, 509 n. 1 (6th Cir.2004). For consistency, we will continue to use the word deportation when discussing both the past and present statutes.

Although § 1252b was repealed by IIRIRA, this section continues to govern "an alien who is in ... deportation proceedings as of [IIRIRA's] effective date," which was April 1, 1997. See IIRIRA §§ 308(b)(6), 309(a), (c)(1). Sanchez's deportation proceedings began on March 8, 1997 when the INS filed the OSC pertaining to Sanchez with the Immigration Court. See 8 C.F.R. § 1003.14(a). Now-repealed § 1252b therefore governs this appeal.

C. Discussion

The BIA denied Sanchez's motion to reopen on the grounds that (1) he received proper notice under 8 U.S.C. § 1252b(c)(3)(B), and (2) his motion was untimely. On appeal, Sanchez challenges both of these grounds. We analyze each in turn below.

1. Denial of motion to reopen-the notice issue

The first issue in this case is whether the BIA abused its discretion when it denied Sanchez's motion to reopen deportation proceedings on the grounds that Sanchez had received proper notice within the meaning of 8 U.S.C. § 1252b(c)(3)(B). An alien who fails toattend his deportation hearing after the government has provided proper written notice of the time and place of the hearing is subject to being deported in absentia if the government proves by clear, unequivocal, and convincing evidence that he is deportable. 8 U.S.C. § 1252b(c)(1). (Sanchez challenges the propriety of the notice, but does not question the propriety of the IJ entering the in absentia deportation order under 8 U.S.C. § 1252b(c)(1).)

With exceptions not relevant here, a hearing notice is sufficient if sent by certified mail to the most recent address provided by the alien. 8 U.S.C. § 1252b(a)(2), (c)(1). There is no requirement that the alien actually receive the notice before an Immigration Court can order the alien deported in absentia. Arrieta v. INS, 117 F.3d 429, 431 (9th Cir.1997); In re Grijalva, 21 I. & N. Dec. 27, 33-34 (BIA 1995).

The successor statutes to § 1252b-which are materially the same in terms of entering in absentia deportation orders ( compare 8 U.S.C. § 1252b(a)(1)-(2), (c)(1)-(2) with 8...