Carrera v. U.S. Attorney General , 422 F. App'x 755 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-13570 MARCH 17, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A077-925-153
CHRISTIAN ALEXANDER MINAN CARRERA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 17, 2011)
Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Christian Alexander Minan Carrera is a native and citizen of Ecuador. He
arrived in the United States, at the Miami International Airport, without
documentation on April 14, 2000 and was detained after indicating that he was
seeking asylum. On April 25, 2000, an immigration officer interviewed Minan
and found that his fear of future persecution in Ecuador was credible. On April
26, 2000, he was served with a Notice to Appear (“NTA”), charging him with
removability under Immigration and Nationality Act (“INA”) § 212(a)(7)(A)(i)(I),
8 U.S.C. § 1182(a)(7)(a)(i)(I). The NTA instructed him to provide the
Immigration and Naturalization Service (“INS”) with his mailing address and
informed him of the legal consequences that would result if he failed to do that.1
The same day, April 26, Minan was served with a notice that his removal hearing
would be held before the Immigration Court on May 16 in Miami. On April 27, he
was paroled into the United States and, on being released from detention, notified
the INS that his address would be: “3702 New York Ave., Union City, NJ.”2 On
May 8, 2000, a second notice of hearing in removal proceedings was mailed to
1
Specifically, the NTA stated that Minan was “required to provide the INS, in writing,
with [his] full mailing address and telephone number [and to] notify the Immigration Court
immediately by using Form EOIR-33 whenever [he] change[d his] address or telephone number
during the course of this proceeding.” The NTA also stated that the “Notice of [the
removal/asylum] hearing will be mailed to this address.” Finally, the NTA warned him that, if he
did not submit “Form EOIR-33 and [did] not otherwise provide an address at which [he] may be
reached during proceedings, then the Government shall not be required to provide [him] with
written notice of [his] hearing. If [he] fail[ed] to attend the hearing at the time . . . a removal
order may be made by the immigration judge in [his] absence. . . .”
2
Minan notified the INS of this address on Form I-830, “Notice to EOIR: Alien
Address.” On this form, Minan indicated that he had been provided with an EOIR change of
address form, Form EOIR-33.
2
Minan at the above address. The notice stated that the hearing would be held
before the Immigration Court on June 7, 2000, and warned Minan regarding the
failure to appear at the hearing.
Minan failed to appear at the June 7 removal hearing. After determining
that he had been given written notification of the time, date, and location of the
hearing and a written warning of the consequences of failing to appeal, the
Immigration Judge (“IJ”) ordered him removed to Ecuador.
On February 16, 2010, Minan, who had been detained by the Department of
Homeland Security (“DHS”), filed a motion with the Immigration Court to reopen
his removal proceedings on the ground that he had not been served with the notice
of the June 7, 2000 hearing. An IJ denied his motion on April 27, 2010, in a
written order. The IJ found that Minan was at fault if he did not receive the notice
of the June 7 hearing, i.e., he had given the INS an incomplete address,3 that he
failed to act diligently to file his application for asylum within one year of his
3
The address Minan had given the INS was an apartment house. The address was
incomplete because, as he readily acknowledged, he did not indicate the number of the apartment
where he was to be staying, Apt. #3. The IJ noted in the written order that the Immigration
Court’s May 8, 2000 notice of hearing was not returned to the Immigration Court by the U.S.
Postal Service; as a result, neither the Court nor the INS had any indication that Minan had not
received the notice of hearing.
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arrival in the United States, and that he failed diligently to address the legal effects
of the June 7, 2000 removal order.4
Minan appealed the IJ’s decision to the Board of Immigration Appeals
(“BIA”) on May 27, 2010, claiming that the IJ clearly erred in finding that the
Immigration Court had mailed him the May 8, 2000 notice of hearing. That is,
because the record contained no evidence that the notice of hearing was mailed
according to normal office procedure, i.e., because the certificate of service was
improperly executed and did not identify the person served or the manner of
service, and no evidence which corroborated that he had been served with the
notice, the IJ had no evidence to support the finding that the notice of hearing had
been mailed to him.
The BIA affirmed the IJ’s decision without opinion on July 12, 2010.
Minan now petitions this court for review. He presents essentially the same
argument he presented to the BIA: the record lacks any evidence that the notice of
the June 7, 2000 hearing was mailed to him because the notice’s certificate of
service was improperly executed and identified neither the person served nor the
4
According to the declaration attached to Minan’ motion to reopen, during the 10-year
hiatus between the IJ’s issuance of the removal order and the filing of the motion to reopen,
Minan and his wife divorced, on March 11, 2005; he married a U.S. citizen, on June 18, 2005;
they had a son, born in October 2007; and his wife filed a visa petition in his behalf.
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method of service. According to Minan, because the IJ had no evidence to show
that the notice was properly mailed, and because he, Minan, denied receiving the
notice, the IJ’s finding that he received the notice was unreasonable and the record
compels the finding that service was not perfected on him.
Because the BIA summarily affirmed the IJ’s order without an opinion, we
review the IJ’s decision as the agency’s final order. See 8 C.F.R. § 1003.1(e)(4);
Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1284 n.1 (11th Cir. 2003). We review
for abuse of discretion the IJ’s denial of Minan’s motion to reopen. See Ali v. U.S.
Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006). “Our review is limited to
determining whether there has been an exercise of administrative discretion and
whether the matter of exercise has been arbitrary or capricious.” Id.Any alien who does not attend a proceeding after written notice has been
provided is subject to removal in absentia if the government establishes by “clear,
unequivocal, and convincing evidence” that it gave written notice and that the
alien was removable. 8 U.S.C. § 1229a(b)(5)(A), INA § 240(b)(5)(A). “[A]
mailing to the last known address is sufficient to satisfy the [government’s] duty to
provide an alien with notice of a [removal] proceeding.” United States v. Zelaya,
293 F.3d 1294, 1298 (11th Cir. 2002). However, written notice is not required if
the alien fails to provide the agency with his current address and telephone
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number. 8 U.S.C. § 1229a(B)(5)(B), INA§ 240(b)(5)(C). Because the “alien has
an affirmative duty to provide the government with a correct address,” failure to
provide it with a change of address precludes the alien from claiming that the
government did not provide the notice of a hearing. Dominguez v. U.S. Att’y Gen.,
284 F.3d 1258, 1260 (11th Cir. 2002).
An alien may seek rescission of an in absentia removal order by filing a
motion to reopen at any time if the alien demonstrates that he did not receive
proper notice of the removal proceedings or that he was in federal or state custody
at the time of the proceedings and the failure to appear was not his fault. 8 U.S.C.
§ 1229a(b)(5)(C), INA § 240(b)(5)(C). However, the BIA presumes receipt of an
NTA or hearing notice sent by regular mail if:
the notice was properly addressed and mailed according to normal
office procedures. This presumption, however, is weaker than that
accorded to notice sent by certified mail. Therefore, when a
respondent seeks to reopen proceedings based on a claim of lack of
receipt of notice, the question to be determined is whether the
respondent has presented sufficient evidence to overcome the weaker
presumption of delivery attached to notices delivered by regular mail.
....
In determining whether a respondent has rebutted the weaker
presumption of delivery . . ., an Immigration Judge may consider a
variety of factors including, but not limited to, the following: (1) the
respondent’s affidavit; (2) affidavits from family members or other
individuals who are knowledgeable about the facts relevant to
whether notice was received; (3) the respondent’s actions upon
learning of the in absentia order, and whether due diligence was
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exercised in seeking to redress the situation; (4) any prior affirmative
application for relief, indicating that the respondent had an incentive
to appear; (5) any prior application for relief filed with the
Immigration Court or any prima facie evidence in the record or the
respondent’s motion of statutory eligibility for relief, indicating that
the respondent had an incentive to appear; (6) the respondent’s
previous attendance at Immigration Court hearings, if applicable; and
(7) any other circumstances or evidence indicating possible
nonreceipt of notice.
In re M-R-A-, 24 I. & N. Dec. 665, 673-74 (BIA 2008) (citations omitted).
In the present case, Minan conceded that he was personally served
with the NTA, which informed him of the requirement to immediately
provide INS, now the DHS, with any address changes. Minan admitted that
he did not provide a change of address to the DHS at any time during the
almost ten years before he was detained. Because Minan failed to provide
his complete address, the IJ was entitled to order his removal in absentia.
See 8 U.S.C. § 1229a(b)(5)(B), INA § 240(b)(5)(B); see also Dominguez,
284 F.3d at 1260. Additionally, although the certificate of service did not
identify the person served, the hearing notice identified Minan as the
recipient and listed the address he provided when he was released on parole
on April 27, 2000. The hearing notice was signed and dated by a member of
the Immigration Court’s staff, and the record lacks any evidence that the
notice was returned as undelivered. Under these circumstances, the IJ did
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not clearly err in concluding that Minan’s self-serving declaration that he
did not receive the notice had not overcome the presumption of effective
service.
PETITION DENIED.
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