Cesar Leonides v. U.S. Attorney General , 223 F. App'x 833 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 14, 2007
Nos. 06-10355, 06-12777 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A74-643-213
CESAR LEONIDES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 14, 2007)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Cesar Leonides, a citizen of Mexico, petitions for review of the decisions of
the Board of Immigration Appeals that denied Leonides’s motion to reconsider and
construed Leonides’s motion to vacate an order of deportation as a motion to
reopen and denied that motion as numerically barred. Because Leonides
abandoned his argument with regard to the motion to reconsider and the BIA did
not abuse its discretion when it construed Leonides’s motion to vacate as a motion
to reopen and denied it, we deny the petitions.
In 1997, an in absentia order of deportation was entered against Leonides for
having entered the United States without inspection. See 8 U.S.C. § 1227(a)(1)(B).
On November 9, 2004, more than seven years after the entry of the deportation
order, Leonides filed a motion to rescind the order of deportation. See 8 U.S.C. §
1252(c)(3)(B) (1995). In his motion, Leonides made two arguments. First,
Leonides asserted that he did not receive the order to show cause and notice of his
deportation hearing. Second, Leonides contended that the Immigration Judge did
not have jurisdiction to issue an order of deportation because Leonides was not
present in the United States when the order to show cause was issued nor during
the pendency of the deportation proceedings.
An Immigration Judge denied the motion to reopen on the grounds that the
notice of the deportation hearing was properly served at Leonides’s last known
address, and Leonides’s statement that he was out of the country was not sufficient
cause to reopen. The BIA affirmed. The BIA concluded that the order to show
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cause was properly served on Leonides, who failed to establish that he was in
Mexico during the deportation proceedings. The BIA discounted the evidence
presented by Leonides because the evidence was not accompanied by certified
English translations as required by the regulations, 8 C.F.R. § 1003.33.
Leonides filed a motion for reconsideration with the BIA to which he
attached certified English translations of the evidence that he had submitted with
his motion to rescind. Because it viewed the certified English translations as “new
evidence,” the BIA construed Leonides’s motion as both a second motion to
reopen and a motion to reconsider. The BIA denied the second motion to reopen
as numerically barred, 8 C.F.R. § 1003.2(c)(2), and denied the motion to reconsider
on the merits. Leonides petitioned this Court for review.
While his petition for review was pending, Leonides filed yet another
motion with the BIA entitled Motion to Vacate Order of Deportation. In his
motion, Leonides again challenged the jurisdiction of the Immigration Judge that
entered the order of deportation against him. Leonides asserted that he was not
seeking to reopen the deportation proceedings and was not filing his motion under
section 242(c)(B)(3) of the Immigration Act. Despite his protestations that he was
not seeking to reopen or rescind the deportation order, the BIA again construed
Leonides’s motion as a motion to reopen and denied the motion as numerically
barred.
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Leonides petitioned this Court for review. His petitions were consolidated
on appeal, but in his brief on appeal, Leonides withdrew his petition relating to the
denial of his motion to reconsider. The only issue remaining before the Court is
whether the BIA erred when it construed Leonides’s motion to vacate as a motion
to reopen and denied that motion as numerically barred.
The BIA did not err when it construed Leonides’s motion to vacate as a
motion to reopen. Although Leonides asserted that his motion to vacate did not
seek either to reopen the deportation proceedings or to rescind the deportation
order of the Immigration Judge, the relief sought by Leonides was identical to the
relief sought in his previous motion to reopen. Moreover, neither the Immigration
and Nationality Act nor the accompanying regulations provide any authority for
the BIA to vacate an in absentia deportation order, and Leonides fails to mention
any authority for his request. In this circumstance, the BIA did not abuse its
discretion when it construed Leonides’s filing as a motion to reopen, which the
BIA ordinarily can entertain.
The BIA also did not err when it denied Leonides’s motion to reopen as
numerically barred. The federal regulations that govern motions to reopen or
reconsider provide that ordinarily “a party may file only one motion to reopen
deportation or exclusion proceedings . . . and that motion must be filed no later
than 90 days after the date on which the final administrative decision was
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rendered.” 8 C.F.R. § 1003.2(c)(2). The regulations also provide that the time and
numerical limitations of section 1003.2(c)(2) do not apply to a motion to reopen or
rescind an order filed in absentia. Id. § 1003.2(c)(3)(i). A motion to rescind an
order of deportation filed in absentia may be filed “[a]t any time if the alien
demonstrates that he or she did not receive notice or if the alien demonstrates that
he or she was in federal or state custody and the failure to appear was through no
fault of the alien.” Id. § 1003.23(b)(4)(iii)(A)(2). An order entered in absentia in
deportation proceedings may be rescinded only upon a motion to reopen. 8 U.S.C.
§ 1252b(c)(3) (1995).
Leonides argues that, because his first motion to rescind or reopen was filed
under section 1003.23(b)(4), it was not subject to the time and numerical
limitations of section 1003.2(c)(2) and cannot be counted as the one motion to
reopen that he was permitted to file, but this argument fails. Although time and
numerical limitations do not apply to motions to rescind an order of deportation
filed in absentia, nothing in the regulation prevents the BIA from counting a
motion to rescind against a later filed motion to reopen. Because Leonides’s
“Motion to Vacate,” construed as a motion to reopen, was not filed under section
1003.23, the numerical limitations applied, and the BIA did not err when it
determined that the motion was numerically barred.
Because we conclude that the BIA did not err when it construed Leonides’s
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motion to vacate as a motion to reopen and denied that motion as numerically
barred, we do not consider and express no opinion with respect to Leonides’s
argument regarding the jurisdiction of the Immigration Judge. Because he has not
raised a constitutional question, we also express no opinion whether other avenues
of relief, such as a petition for habeas corpus, see Madu v. U.S. Att’y Gen., 470
F.3d 1362 (11th Cir. 2006), are available to Leonides to challenge the jurisdiction
of the Immigration Judge.
Leonides’s petitions for review are
DENIED.
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