Kamlesh Kantibhai-Patel v. U.S. Attorney General ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-15520
June 15, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
BIA No. A73-761-385
KAMLESH KANTIBHAI-PATEL,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 15, 2007)
Before TJOFLAT, BARKETT, and HULL, Circuit Judges.
PER CURIAM:
Kamlesh Kantibhai-Patel (“Patel”), through counsel, petitions for review of
the Board of Immigration Appeal’s (“BIA”) denial of his motion to reopen his
removal proceedings and its denial of his motion for reconsideration. On December
19, 1995, the Immigration and Naturalization Service (“INS”) issued Patel, a native
and citizen of India, an order to show cause (“OSC”) as to why he should not be
deported as an alien who entered the United States without inspection. The OSC,
which was read to Patel in Hindu, stated that, if he was ordered deported in
absentia, he could move to reopen at any time if he could show that he “did not
receive written notice of [his] hearing and [he] provided changes of [his] address.”
Patel notified the INS that his address was: 301 N. Central Ave., No. 207,
Hapeville, Georgia, 30354. On July 11, 1996, a notice was sent to Patel that his
hearing was scheduled for September 18, 1996, although the envelope was
addressed “Haperville,” instead of Hapeville. A registered mail receipt received by
the immigration court indicated that a notice was received by a Ruth Tanner at 301
N. Centeral Ave., No. 207, “Haperville,” Georgia, and this notice was dated as
delivered on July 13, 1997, although the return receipt was stamped as filed with
the Immigration Court on July 15, 1996. An Immigration Judge (“IJ”) ordered
Patel deported in absentia on September 18, 1996, and attached to the deportation
order was a “record of deportable alien,” which stated that all forms were
translated into Hindu by an interpreter for Patel.
On August 22, 2005, Patel filed a motion to reopen his deportation
proceedings, arguing that: (1) he never received notice of his deportation hearing;
(2) he speaks Gujarati, not Hindu; and (3) he was eligible to adjust his status to that
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of a lawful permanent resident due to his marriage to a U.S. citizen. The IJ denied
Patel’s motion to reopen, finding that: (1) a notice of hearing was sent to Patel, at
the address that he provided, on July 11, 1996; (2) the registered mail receipt form
for this notice was received by the Immigration Court on July 15, 1996; (3) the
envelope containing the notice had been opened and then returned to the
Immigration Court, marked as “Returned to Sender not Del as Addressed”; and (4)
although the date of delivery of the notice was listed as July 13, 1997, “[t]his [was]
clearly an error inasmuch as the receipt notice was returned to and received by the
Court on July 15, 1996.” It also noted that: (1) the OSC was served on Patel
personally, and included the consequences of failing to appear at his hearing; (2)
Patel did not claim that he could not speak or understand Hindu, and
“Ethologue.com” reported that Gujarati and Hindu “share the same language
roots,” such that “[t]here [was] nothing of record to indicate that the only language
[Patel] spoke and understood was Gujarati”; and (3) there is no “Haperville,” but
only a “Hapeville,” in Georgia.
BIA affirmed this decision on September 25, 2006, and, on October 18,
2006, Patel filed a petition for review before us. On October 24, 2006, Patel filed a
motion to reconsider with the BIA, arguing that he was eligible to adjust his status
to that of a lawful permanent resident, and the BIA denied this motion.
We review the BIA’s denial of a motion to reopen for an abuse of discretion.
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Mejia-Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999). The discretion
afforded to the BIA under 8 C.F.R. § 1003.2(a) with respect to granting and
denying motions to reopen is expansive. See Anin v. Reno, 188 F.3d 1273, 1279
(11th Cir. 1999) (providing that the regulation gives the BIA discretion to reopen
proceedings “as it sees fit”). Specifically, the provision provides that “[t]he Board
has discretion to deny a motion to reopen even if the party moving has made out a
prima facie case for relief.” 8 C.F.R. § 1003.2(a). Judicial 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.” Garcia-Mir v.
Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (internal quotation omitted).
Furthermore, motions to reopen are disfavored in removal proceedings. INS v.
Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 724, 116 L.Ed.2d 823 (1992).
The Immigration and Naturalization Act (“INA”) provides that any alien
who, after receiving written notice, does not attend a proceeding shall be ordered
removed in absentia if the INS establishes by “clear, unequivocal, and convincing
evidence” that: (1) it gave written notice of the proceedings; and (2) the alien was
removable. INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). An in absentia
removal order may be rescinded if an alien files a motion to reopen the proceedings
either: (1) within 180 days after the order of removal; or (2) if, at any time, the
alien demonstrates that he did not receive proper notice of the removal
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proceedings. INA §240(b)(5)(C); 8 U.S.C. § 1229a(b)(5)(C). “Service by mail . . .
shall be sufficient if there is proof of attempted delivery to the last address
provided by the alien . . .” INA § 240(c); 8 U.S.C. § 1229(c); 8 C.F.R.
§ 1003.23(b)(4)(ii). In reviewing a motion to reopen where an alien alleges lack of
notice, our review is limited to: (1) “the validity of the notice provided to the
alien”; (2) “the reasons for the alien’s not attending the proceeding”; and
(3) “whether or not the alien is removable.” Contreras-Rodriguez v. U.S. Att’y
Gen., 462 F.3d 1314, 1317 (11th Cir. 2006) (citing INA § 240(b)(5)(D); 8 U.S.C.
§ 1229a(b)(5)(D)).
Furthermore, at the time when Patel was ordered deported, the INA provided
that:
Any alien against whom a final order of deportation [was] entered in
absentia . . . and, who . . . was provided oral notice, either in the
alien’s native language or in another language the alien understands,
of the time and place of the proceedings and of the consequences . . .
of failing . . . to attend a proceeding . . . shall not be eligible for relief
. . . for a period of 5 years after the date of the entry of the final order
of deportation.
INA § 242B(e)(1) (1996); 8 U.S.C. § 1252b(e)(1) (1996).
The BIA did not abuse its discretion by denying Patel’s motion to reopen
because the record supports the conclusions that: (1) delivery of the notice of
hearing was made at the last address provided by Patel before he was ordered
deported; and (2) Patel had been warned orally, in a language that he understood,
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of the consequences of failing to attend his deportation hearing. Accordingly, we
deny this portion of the petition for review.
Patel’s next argument on appeal is that the IJ failed to consider his
application to adjust his status to that of a lawful permanent resident, which he
raised in his motion to reconsider before the BIA.
By statute, an alien seeking review of a final order of the BIA must filed a
petition for review within 30 days of the issuance of the final order. INA
§ 242(b)(1); 8 U.S.C. § 1252(b)(1). The Supreme Court has stated that, where a
motion to reconsider is denied, “the petitioner would file a separate petition to
review that second final order.” Stone v. INS, 514 U.S. 386, 395, 115 S.Ct. 1537,
1544, 131 L.Ed.2d 465 (1995). We have held that an express designation of an
order appealed from infers the lack of intent to appeal an unmentioned order.
Osterneck v. E.T. Barwick Indus., Inc.,, 825 F.2d 1521, 1529 (11th Cir. 1987)
(securities context).
We do not have jurisdiction to review the BIA’s decision denying Patel’s
motion for reconsideration because his petition for review only references the
BIA’s denial of his motion to reopen, and he did not file a separate petition for
review of the denial of the motion to reconsider. Accordingly, we deny the petition
in part, and dismiss it in part.
DENIED IN PART, DISMISSED IN PART.
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