Urbina-Osejo v. I.N.S., URBINA-OSEJ

• Decision Date: 26 September 1997
• Docket Number: P,URBINA-OSEJ,No. 95-70648,95-70648
• Parties: 97 Cal. Daily Op. Serv. 7665, 97 Daily Journal D.A.R. 12,341 Nidia Del Rosarioetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1314

124 F.3d 1314

97 Cal. Daily Op. Serv. 7665, 97 Daily Journal

D.A.R. 12,341

Nidia Del Rosario URBINA-OSEJO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 95-70648.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Telephonically Jan. 7, 1997.

Decided Sept. 26, 1997.

Amos Lawrence, San Francisco, CA, for petitioner.

Terri J. Lavi, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for respondent.

Petition for Review of an Order of the Board of Immigration Appeals. INS No. A27-540-701.

Before: BOOCHEVER, REINHARDT, and RYMER, Circuit Judges.

Opinion by Judge BOOCHEVER; Partial Concurrence and Partial Dissent by Judge RYMER.

BOOCHEVER, Circuit Judge:

Nidia Del Rosario Urbina-Osejo appeals the denial of her motion to reopen immigration proceedings. The Board of Immigration Appeals ("BIA") concluded that she abandoned her right to apply for asylum and withholding of deportation by failing to appear at her deportation hearing eight years earlier, and that she had failed to demonstrate the extreme hardship required to establish prima facie eligibility for suspension of deportation. Urbina argues that she had reasonable cause for her failure to appear because she never received notice of her deportation hearing, and that she did not know she was required to inform the INS of her change of address; the BIA did not address this issue. Urbina also argues that the BIA's refusal to reopen her suspension claim was an abuse of discretion, because its consideration of the relevant factors for establishing extreme hardship was cursory. We agree that the BIA should have considered the first issue, and that its ruling on the suspension claim did not show proper consideration of all the relevant factors. We therefore remand to the BIA.

FACTS

On October 24, 1986, Nidia Del Rosario Urbina-Osejo ("Urbina"), a Nicaraguan citizen In January 1987, Urbina moved to San Francisco, California, where some of her brothers and sisters lived. Three months after Urbina moved, the INS mailed notice of her deportation hearing, set for July in Texas, to Urbina's Miami address. Urbina declared that she never received the notice, which was not returned to Texas as undeliverable. She did not appear for the hearing. The immigration judge conducted the hearing in absentia and ordered Urbina deported. The warrant of deportation and the deportation notice subsequently were mailed to the Miami address. The mail was returned to Texas.

entered the United States without inspection near Hidalgo, Texas. Then seventeen, Urbina was travelling with her sister and an aunt. She was apprehended when she tried to board an airplane to Miami, Florida. The Immigration and Naturalization Service ("INS") served her with an Order to Show Cause charging her with deportability, and then released her on her own recognizance. Urbina gave a Miami address for notice purposes.

Urbina settled in San Francisco and finished high school. She worked briefly as a janitor. At the time of her motion to reopen, she was living with her sister, working as a self-employed housekeeper and taking care of her niece while her sister worked.

In November 1994, Urbina filed a motion to reopen her deportation proceedings, requesting the opportunity to apply for political asylum, withholding of deportation, and suspension of deportation. The Immigration Judge ("IJ") denied the motion. Urbina appealed to the BIA, which dismissed her appeal in June 1995.

DISCUSSION

I. "Reasonable cause" for failure to attend deportation hearing

This court reviews for an abuse of discretion the BIA's denial of Urbina's motion to reopen. Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996).

Under 8 U.S.C. § 1252(b) as in effect at the time of the hearing, an IJ could hold a deportation hearing in absentia if the alien had been given a reasonable opportunity to be present and "without reasonable cause fail[ed] or refuse[d] to attend" the proceedings. A motion to reopen a deportation hearing which was held in absentia would be granted if the alien showed "reasonable cause" for her absence from the hearing. Sharma, 89 F.3d at 547. ¹ "[W]e review de novo the INS's construction of the definition of 'reasonable cause.' " Hernandez-Vivas v. INS, 23 F.3d 1557, 1560 (9th Cir.1994).

In her motion to reopen before the IJ, Urbina argued that the reasonable cause for her failure to appear was that she had not received notice of the 1987 hearing. As the IJ noted, she did not submit any affidavits or other evidence on the issue. On appeal to the BIA, however, Urbina repeated her claim of lack of notice and added a declaration, stating that she never received the notice of the hearing because "my family relocated me from Miami Florida to San Francisco, California. I was a minor at that time and I had no knowledge of the need to report nor of an actual report informing the government of our change of address." The BIA agreed to consider the declaration, and the INS did not object.

The BIA found that Urbina had not demonstrated reasonable cause for her failure to appear. Because Urbina did not notify the IJ of her change of address, the BIA reasoned, it was Urbina's fault that she did not receive the notice. The BIA did not address her statement that she did not know she needed to report her change of address, nor did it call her to testify.

On this appeal from the BIA's decision, Urbina asserts that there was no evidence that she was advised of the requirement that she report any change in address, and that her declaration is evidence that she did not know she had the responsibility to report her

change in address when she moved from Florida to California. She argues that her failure to receive notice of the hearing was not her fault, and therefore her lack of knowledge of the hearing was reasonable cause for her failure to attend.

A. Jurisdiction

The INS asserts that we have no jurisdiction to review the change-of-address issue, because Urbina did not raise it before the BIA. See Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994) (court of appeals has no jurisdiction to consider issue not raised in appeal to BIA). Urbina did raise the issue, however, by introducing into evidence her declaration, which stated that she had no knowledge of the change-of-address requirement. The INS did not challenge the admission of the declaration, nor did it present any evidence to contradict it. The BIA did not address the issue of lack of knowledge of the change-of-address requirement in its decision. We conclude that Urbina raised the issue, and we have jurisdiction to consider it.

B. Notice

"[N]otice of a deportation hearing sent by regular mail to the last address provided by the alien to the INS satisfies the requirements of constitutional due process...." Farhoud v. INS, 114 F.3d 867, 869 (9th Cir.1997). To overcome the presumption of adequate notice when notice of a deportation hearing was sent by a constitutionally adequate method, Urbina must " 'present[ ] substantial and probative evidence ... demonstrating that there was improper delivery or that nondelivery was not due to the respondent's failure to provide an address where [s]he could receive mail.' " Fuentes-Argueta v. INS, 101 F.3d 867, 871 (2d Cir.1996) (per curiam) (quoting In re Grijalva, Int. Dec. 3246, 1995 WL 314388 (B.I.A. Apr. 28, 1995)).

Regulations in effect now and at the time of Urbina's entry into the United States require that when an officer personally serves an order to show cause, as occurred in this case, "the contents of the order to show cause shall be explained." 8 C.F.R. § 242.1. Whether an explanation occurred in this case is not in the record. Even if the officer had explained the OSC to Urbina, however, the OSC in this case makes no mention of the statutory requirement that the alien must report to the INS any change in address. See 8 U.S.C. § 1305(a) (alien must notify Attorney General of change of address within ten days). ² There is thus no evidence in the record that Urbina was ever informed of the requirement.

Urbina stated in her declaration "I had no knowledge of the need to report ... informing the government of our change of address." Urbina's declaration thus raised the issue whether she had notice of the change-of-address requirement. The requirement did not appear in the OSC, and there is no evidence that the INS officer explained the requirement to Urbina. In fact, the only evidence in the record is to the contrary, as Urbina stated that she did not know of the requirement.

We conclude that there is reasonable cause for failure to appear when an alien has not received notice of the time and place of the hearing due to a change of address, and the alien was not informed of a requirement to advise the INS of any change of address. ³

At the hearing and in its decision, the BIA failed to address the issue whether Urbina was notified of the requirement. Because such a factually intensive question cannot be resolved on appeal, we remand this case to the BIA for further findings.

II. Suspension of deportation

The BIA can deny petitioner's motion to reopen on any of three independent grounds: (1) "failure to establish a prima facie case for the relief sought," (2) "failure to introduce previously unavailable, material evidence," or (3) "a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought."

Watkins v. INS, 63 F.3d 844, 847 (9th Cir.1995) (quoting INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 724-25, 116 L.Ed.2d 823 (1992)); Gutierrez-Centeno v. INS, 99 F.3d 1529, 1531-32 (9th Cir.1996).

The grounds for granting suspension of deportation are: The alien has been physically present in the United States for at least seven years; is of good moral character; and, his deportation would result in extreme hardship to the alien, or to a spouse,...