Shia v. Mukasey ( 2009 )

United States Court of Appeals
For the First Circuit
No. 08-1842
LYE FONG SHIA,
Petitioner,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW ON AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Stahl and Lipez,
Circuit Judges.
Meer M. M. Rahman and Law Office of Meer M. M. Rahman on brief
for petitioner.
Kevin J. Conway, Office of Immigration Litigation, Civil
Division, United States Department of Justice, Gregory G. Katsas,
Assistant Attorney General, Civil Division, and Richard M. Evans,
Assistant Director, Office of Immigration Litigation, on brief for
respondent.
March 24, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric
H. Holder, Jr. has been substituted for former Attorney General
Michael B. Mukasey as respondent.
Per Curiam. Lye Fong Shia is a citizen of Malaysia and
entered the United States in June 2002 on a six-month visitor visa,
which she overstayed. In December 2005, Shia was arrested in
Massachusetts on a criminal charge, gave the police a Massachusetts
address, and (as an overstaying alien subject to removal under 8
U.S.C. § 1227(a)(1)(B) (2006)) was placed in the custody of the
Bureau of Immigration and Customs Enforcement ("ICE") of the
Department of Homeland Security ("DHS").
ICE released Shia on her own recognizance and, according
to a document in the record, personally served her on December 20,
2005, with a notice to appear form; the form warned that she had to
come to court when notified of a hearing date and to keep her
address up to date and that a removal order could be entered if she
failed to appear when notified. In January 2006, DHS mailed a
notice to her given address that her hearing had been set in Boston
on a specific date in August. When she failed to appear, the
immigration judge entered a removal order in absentia. 8 U.S.C. §§
1227(a)(1)(B), 1229(b)(5)(A).
In February 2007, Shia asked the IJ to reopen the case,
to rescind the removal order for lack of notice of the hearing and
to allow her to apply for relief from removal. A removal order
entered in absentia "may be rescinded only . . . if the alien
demonstrates that the alien did not receive notice in accordance
with" the statute. 8 U.S.C. § 1229a(b)(5)(C). Shia was obliged to
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furnish adequate grounds for reopening supported by affidavits or
other evidence. 8 U.S.C. § 1229a(c)(7)(B) (2006); 8 C.F.R. §
1003.23(b)(3) (2009).
Shia's request to reopen said that she had moved to New
York and had not received the notice of the August hearing but she
did not claim to have notified DHS of her change of address. As
for the original notice to appear when notified, Shia admitted
receiving some documents from the immigration officer on December
20, 2005 in her affidavit, but alleged in her motion that the
signature on the notice did not match her other signatures in the
record. Thereafter, the IJ entered a decision rejecting the
request to reopen.
In his decision, the IJ noted that Shia had questioned
the signature on the notice to appear but had not explicitly denied
receiving the notice. Lack of written notice can provide a basis
for reopening an in absentia order, In re M-S-, 22 I&N Dec. 349,
352-53 (BIA 1998), but (the IJ said in his decision) Shia's
affidavit said only that it was "uncertain" whether proper notice
had been given. In light of the record showing service of the
notice, the IJ found the affidavit insufficient. On review, the
BIA upheld the IJ.
Shia now challenges the BIA's dismissal of her appeal of
the IJ's denial of the motion to reopen her removal proceeding. We
review the denial to "determine only whether it was arbitrary,
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capricious, or an abuse of discretion." Thomas v. I.N.S., 976 F.2d
786, 789 (1st Cir. 1992). As for the IJ's findings of fact, we
treat them as "conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary." 8 U.S.C. §
1252(b)(4)(B).
Shia argues on appeal that there is no affirmative proof
that the original notice to appear when summoned was in fact served
upon her; but the record includes such a DHS document showing
personal service on her on the day of Shia's release from ICE
custody and was signed by the officer who served it. She admits
receiving some DHS documents on that day and did not flatly deny in
her affidavit that this was one of them. Simply to point to
confusing signatures was not enough to require the IJ to reopen the
hearing.
The notice to appear contains a blank space, which was
not filled in, designed to confirm that the recipient also received
oral notice in a language the recipient understood. Leaving the
space blank, the government concedes, was a mistake by the officer
who completed the form. But the regulations say that this omission
does not give the notified party rights, 8 C.F.R. § 1003.15(c)
(2009), nor does Shia's affidavit explicitly deny receiving oral
notice or understanding it.
Shia claims that when she was originally released, she
told one of the ICE officers that she might be moving to New York.
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But the notice is clear that she was expected to furnish a new
address if she moved from the one recorded by ICE, and informal
notice of an intended move with no specified address hardly
satisfies the requirement. Shia does not claim that either then or
thereafter did she furnish DHS with a new address.
The petition for review is denied.
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