Eloidio Ricardo Castillo v. U.S. Attorney General , 181 F. App'x 885 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 22, 2006
No. 05-15540 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A91-142-910
ELOIDIO RICARDO CASTILLO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 22, 2006)
Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:
Eloidio Ricardo Castillo, a native of Venezuela, petitions through counsel
for review of the Board of Immigration Appeals (“BIA’s”) decision adopting and
affirming the Immigration Judge (“IJ’s”) order denying his motion to reopen a
final order of removal. The order of removal, which was issued in absentia, found
Castillo to be inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an alien who
was convicted of, committed, or admitted committing acts constituting the essential
elements of a crime involving moral turpitude. Castillo contends that the denial of
his motion to reopen essentially denied him due process, because the reason neither
he nor his counsel were present at the removal hearing was that neither of them
received the requisite notice of the date for which the hearing was reset. Had such
notice been received, Castillo states, he would have been able to appear with
counsel and seek a waiver that, if granted, would have allowed him to remain in
the United States as a lawful permanent resident. We deny Castillo’s petition.
I.
“[T]he limitations on our jurisdiction to review a final order of removal . . .
also control our jurisdiction to review an order denying a motion to reopen a final
order of removal.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 n.2 (11th Cir. 2006)
(per curiam). As Castillo was found removable under § 1182(a)(2)(A)(i)(I), he
falls within the scope of 8 U.S.C. § 1252(a)(2)(C), which generally limits our
review of a final order of removal to “determining whether the petitioner is (1) an
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alien (2) who was removable (3) for committing a crime enumerated in one of the
statutes listed in section 1252(a)(2)(C).” Balogun v. U.S. Att’y Gen., 425 F.3d
1356, 1359 (11th Cir. 2005). Pursuant to the REAL ID Act of 2005, however, we
also have jurisdiction to review “constitutional claims or questions of law” raised
by Castillo. See id.; 8 U.S.C. § 1252(a)(2)(D). Thus, we have jurisdiction to reach
Castillo’s claim that the BIA erred as a matter of law and deprived him of due
process when it affirmed the IJ’s denial of Castillo’s motion to reopen.1
II.
We review only the BIA’s decision, “except to the extent the BIA expressly
adopts the IJ’s decision.” Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 956
(11th Cir. 2005) (per curiam). “Insofar as the [BIA] adopts the IJ’s reasoning, we
will review the IJ’s decision as well.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). We review the denial of a motion to reopen for abuse of
discretion. Ali, 443 F.3d at 808. “Our review is limited to determining whether
there has been an exercise of administrative discretion and whether the matter of
exercise has been arbitrary and capricious.” Abdi v. U.S. Att’y Gen., 430 F.3d
1148, 1149 (11th Cir. 2005) (per curiam) (internal quotes omitted). To the extent
1
We note that we are reviewing only the BIA’s denial of Castillo’s motion to reopen.
Castillo never appealed the in absentia order of removal to the BIA; thus we cannot reach the
merits of that order. See 8 U.S.C. § 1252(d)(1); Sundar v. INS, 328 F.3d 1320, 1323 (11th Cir.
2003).
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Castillo contends he was deprived of due process, however, we review his
constitutional challenge de novo. See Ali, 443 F.3d at 808.
“To establish due process violations in removal proceedings, aliens must
show that they were deprived of liberty without due process of law, and that the
asserted errors caused them substantial prejudice.” Lonyem v. U.S. Att’y Gen., 352
F.3d 1338, 1341-42 (11th Cir. 2003) (per curiam). It is uncontroverted that
Castillo received the requisite “Notice to Appear” and notice of a master hearing
originally set for March 26, 2004, and that Castillo’s attorney, Hector Diaz,
successfully moved to continue the hearing, which was later rescheduled for May
28, 2004. According to Castillo’s motion to reopen, however, neither Diaz nor
Castillo received notice that the hearing was again reset for August 13, 2004,
though Diaz states that he was notified via phone that the May 28th hearing would
be reset to a later unspecified date.
Where there is “any change or postponement in the time and place of
[removal] proceedings, . . . a written notice shall be given in person to the alien (or,
if personal service is not practicable, through service by mail to the alien or to the
alien’s counsel of record, if any) . . . .” 8 U.S.C. § 1229(a)(2)(A). The notice must
specify “the new time or place of the proceedings” and “the consequences under
section 1229a(b)(5) of this title of failing, except under exceptional circumstances,
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to attend such proceedings.” Id. Section 1229a(b)(5)(A) states:
Any alien who, after written notice required under paragraph (1) or (2)
of section 1229(a) of this title has been provided to the alien or the
alien’s counsel of record, does not attend a proceeding under this
section, shall be ordered removed in absentia if the Service establishes
by clear, unequivocal, and convincing evidence that the written notice
was so provided and that the alien is removable (as defined in
subsection (e)(2) of this section). The written notice by the Attorney
General shall be considered sufficient for purposes of this
subparagraph if provided at the most recent address provided under
section 1229(a)(1)(F) of this title.
Such an in absentia order may be rescinded only upon (1) a motion to reopen filed
within 180 days if the alien demonstrates that the failure to appear was because of
“exceptional circumstances” (which Castillo does not purport to assert here), or
(2) “a motion to reopen filed at any time if the alien demonstrates that the alien did
not receive notice in accordance with paragraph (1) or (2) of section 1229(a) of this
title,” or demonstrates that he was “in Federal or State custody” and the failure to
appear was not his fault. Id. § 1229a(b)(5)(C); see 8 C.F.R. § 1003.23(b)(4)(ii).
In the immigration context, “[d]ue process is satisfied if notice is accorded in
a manner reasonably calculated to ensure that notice reaches the alien.” Anin v.
Reno, 188 F.3d 1273, 1278 (11th Cir. 1999) (per curiam) (quotes omitted); see also
Jones v. Flowers, No. 04-1477, slip op. at 4-5 (U.S. Apr. 26, 2006) (notice is
deemed constitutionally sufficient “if it was reasonably calculated to reach the
intended recipient when sent” and the government “heard nothing back indicating
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that anything had gone awry”). Here, the record indicates that notice of the hearing
change to August 13, 2004 was sent to Diaz on June 30, 2004 by immigration court
staff, via regular mail, to the address listed by Diaz on his earlier motion for a
continuance. This evidences compliance with § 1229(a)(2)(A), which permits
service of such a notice “by mail . . . to the alien’s counsel of record.” 8 U.S.C.
§ 1229(a)(2)(A); cf. 8 U.S.C. § 1229(c); Dominguez v. U.S. Att’y Gen., 284 F.3d
1258, 1260 (11th Cir. 2002) (per curiam) (stating that under § 1229(c), a § 1229(a)
notice “is effective if sent to the ‘last address provided by the alien’”). Castillo
makes no claim that this statutorily authorized method of service was not
“reasonably calculated” to ensure proper notice.
Castillo does argue, however, that even if the notice was sent neither he nor
his attorney ever received it, which is a basis for granting a motion to reopen under
8 U.S.C. § 1229a(b)(5)(C)(ii). In rejecting this argument, the IJ apparently relied
upon “a presumption that notice sent, postage prepaid is received.” The BIA has
recognized that “‘[a] letter properly addressed, stamped and mailed is presumed to
have been duly delivered to the addressee.’” In re M-D-, 23 I. & N. Dec. 540, 546
(BIA 2002) (quoting FDIC v. Schaffer, 731 F.2d 1134, 1137 n.6 (4th Cir. 1984)).
When the statute required the use of certified mail, this presumption was a strong
one, and could be rebutted only by “substantial and probative evidence” of
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improper delivery or nondelivery that was not attributable to any fault of the alien.
See In re Grijalva, 21 I. & N. Dec. 27, 37 (BIA 1995). Section 1229(a), however,
no longer requires the use of certified mail, and application of a strong
presumption to the use of regular mail is thus unwarranted. See In re G-Y-R-, 23 I.
& N. Dec. 181 (BIA 2001) (en banc); Maknojiya v. Gonzales, 432 F.3d 588, 589
(5th Cir. 2005) (per curiam) (it was an abuse of discretion to apply a strong
presumption where notice was sent by regular mail); Salta v. INS, 314 F.3d 1076,
1079 (9th Cir. 2002) (“[D]elivery by regular mail does not raise the same ‘strong
presumption’ as certified mail, and less should be required to rebut such a
presumption.”).2 Exactly what degree of proof is needed to rebut the lesser
presumption accorded to regular mail remains unclear, though several circuits have
indicated that an affidavit of nonreceipt might sometimes be sufficient. See Salta,
314 F.3d at 1079 (where a petitioner initiated a proceeding to obtain a benefit and
had no motive to avoid the hearing, a sworn affidavit that neither petitioner nor a
responsible party residing at his address had received the notice should suffice to
rebut the presumption of delivery and entitle petitioner to an evidentiary hearing on
the veracity of her allegations); Ghounem v. Ashcroft, 378 F.3d 740, 744-45
2
Contrary to Castillo’s claim in his reply brief, Maknojiya does not stand for the
proposition that there is no presumption of service unless the government uses certified mail.
Rather, Maknojiya held that it was an abuse of discretion to apply the strong presumption
discussed in Grijalva where notice was sent by regular mail. See Maknojiya, 432 F.3d at 589.
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(8th Cir. 2004) (same); Maknojiya, 432 F.3d at 590 (following Salta even though
petitioner did not initiate removal proceedings); cf. Joshi v. Ashcroft, 389 F.3d 732,
735-36 (7th Cir. 2004) (BIA could have–but has not–held that a mere affidavit of
nonreceipt is insufficient to prove nonreceipt of notice). But see Gurung v.
Ashcroft, 371 F.3d 718, 722 (10th Cir. 2004) (petitioner who fails to submit
documentary evidence and merely alleges that he did not receive proper notice has
not demonstrated lack of notice).
In the instant case, the record contains an affidavit by Castillo averring that
he never received notice that the date of his hearing had been changed to August
13, 2004, though Diaz had previously informed him that the case “was going to be
reset to a later date.” The notice in question, however, was mailed to Diaz, not to
Castillo, as permitted by statute. Although Diaz claims in the motion to reopen
that he too never received or was provided written notification of the time, date,
and location of the reset hearing, no affidavit by Diaz accompanies the motion in
the record. While we do not purport to define here the minimum proof needed to
rebut the presumption of delivery accorded to regular mail, we hold that Diaz’s
bare allegations, unsupported by any affidavit or documentary evidence, are simply
insufficient to do so.3
3
We note that a motion to reopen “shall be supported by affidavits or other evidentiary
material.” 8 U.S.C. § 1229a(c)(7)(B).
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III.
Castillo has failed to demonstrate that he was denied due process, or that the
BIA or IJ erred as a matter of law in denying his motion to reopen. We therefore
deny Castillo’s petition.
PETITION DENIED.
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