Juan Manuel R. Vicario v. U.S. Atty. General , 407 F. App'x 357 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14563 ELEVENTH CIRCUIT
OCTOBER 26, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A074-289-782
JUAN MANUEL R. VICARIO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 26, 2010)
Before EDMONDSON, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Juan Manuel Vicario petitions for review of the order by the Board of
Immigration Appeals (“BIA”) dismissing his appeal of the Immigration Judge’s
(“IJ”) order. The IJ’s order denied Vicario’s motion to reopen his removal
proceedings.1 No reversible error has been shown; we deny the petition.
In 1996, the IJ ordered Vicario, a native and citizen of Mexico, deported
from the United States in absentia after he failed to appear at a hearing. In 2008,
Vicario filed a motion to reopen his removal proceedings so that he could have his
deportation order rescinded and apply for adjustment of status. He maintained that
exceptional circumstances tolled the 180-day filing deadline for motions to reopen
orders entered in absentia.2 The IJ denied the motion, concluding that Vicario
adequately was informed of his hearing but failed to attend and that the motion
otherwise was untimely.
In dismissing the appeal, the BIA concluded that Vicario’s motion to reopen
because of exceptional circumstances for failure to appear was untimely. Even if
the motion was timely, the BIA concluded that Vicario presented no exceptional
1
The IJ also denied Vicario’s later motion to reconsider the denial of the motion to
reopen.
2
Vicario asserted that he had hired a man who purported to be a lawyer to obtain
employment authorization for him in the United States. But the man, who was not a lawyer,
filed an asylum application on Vicario’s behalf without Vicario’s knowledge of its existence or
contents. Because of the immigration advisor’s fraud, Vicario was placed into deportation
proceedings.
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circumstances; and even if the BIA could equitably toll the filing deadline, Vicario
would be unentitled to such tolling. The BIA also concluded the Vicario received
adequate notice of his hearing.
On appeal, Vicario argues that it was an abuse of discretion not to reopen his
proceedings. He contends that the untimeliness of his motion was excused because
of the exceptional circumstances of his immigration advisor’s fraud and that he is
entitled to equitable tolling of the filing deadline because of later ineffective
assistance of counsel he received. We review the denial of a motion to reopen for
an abuse of discretion. Jiang v. U.S. Attorney Gen., 568 F.3d 1252, 1256 (11th
Cir. 2009). “Our review is limited to determining whether the BIA exercised its
discretion in an arbitrary or capricious manner.” Id.A removal order entered in absentia may be rescinded only “upon a motion
to reopen filed within 180 days after the date of the order of deportation if the alien
demonstrates that the failure to appear was because of exceptional circumstances.”
8 U.S.C. § 1252b(c)(3)(A) (repealed 1996).3 We have concluded that the 180-day
filing deadline is not subject to equitable tolling or other exceptions, even in the
case of ineffective assistance of counsel or where the alien acts blamelessly. See
Anin v. Reno, 188 F.3d 1273, 1278-79 (11th Cir. 1999); see also Abdi v. U.S.
3
Based on the date of the hearing notice in Vicario’s case, former 8 U.S.C. § 1252b
(1994), applies.
3
Attorney Gen., 430 F.3d 1148, 1149 (11th Cir. 2005) (concluding that petitioner’s
motion to reopen based on ineffective assistance of counsel, filed after the 90-day
deadline in 8 C.F.R. § 1003.2(c)(2), could not be equitably tolled).
Vicario did not file the instant motion to reopen until 12 years after the final
order of deportation, well beyond the 180-day period for filing. Thus, we cannot
say that the BIA’s affirmance of the denial of an untimely-filed motion to reopen
was arbitrary or capricious. See id.And the BIA also abused no discretion in concluding that Vicario was
unentitled to exceptions to the filing deadline, even if such exceptions were
available to him. Vicario claimed that he did not attend the deportation hearing
because he was afraid of what could happen to him, and he did not know what his
immigration advisor had done or how it would affect him. Even if the BIA
accepted Vicario’s motion as timely, a fear of deportation falls short of an
exceptional circumstance excusing the failure to attend a deportation hearing. See
8 U.S.C. § 1252b(f)(2) (defining exceptional circumstances as those beyond
control of the alien “such as serious illness of the alien or death of an immediate
relative of the alien, but not including less compelling circumstances”). Vicario’s
proffered reasons for tolling the deadline -- fraud and later ineffective assistance of
counsel (which occurred well after the filing deadline) -- do not bear on his failure
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to attend his hearing and would not entitle him to equitable tolling, even if such
tolling was available.
We may not review Vicario’s argument that the BIA should have sua sponte
reopened his proceedings. See Lenis v. U.S. Attorney Gen., 525 F.3d 1291, 1294
n.7 (11th Cir. 2008) (we lack jurisdiction to review the BIA’s decision not to sua
sponte reopen). Although we may have jurisdiction over constitutional claims
about the BIA’s decision not to exercise its sua sponte power, see id., Vicario has
presented no such constitutional claim. He argues that the deportation order
violated due process; but even assuming Vicario suffered a violation at the in
absentia deportation hearing, the BIA’s application of the filing deadline does not
by itself raise constitutional concerns simply because it leaves Vicario without a
remedy for vindicating an assumed constitutional injury. See Rodriguez v. Reno,
178 F.3d 1139, 1145 (11th Cir. 1999).
Vicario also argues that the notice he received about his deportation
proceedings was inadequate because the notice was not explained to him. He
contends that this inadequate notice amounted to a due process violation.
An alien may file a motion to reopen at any time seeking to rescind an in
absentia deportation order if “the alien demonstrates that the alien did not receive”
proper statutory notice of his hearing. 8 U.S.C. § 1252b(c)(3)(B). Written notice
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must be given in person to the alien, or if personal service is not practicable, by
certified mail, stating the time and place of the proceedings and the consequences
of the failure to appear at the proceedings. 8 U.S.C. § 1252b(a)(2). Due process is
satisfied if notice is accorded “in a manner ‘reasonably calculated’ to ensure that
notice reaches the alien.” See Anin, 188 F.3d at 1278 (citation omitted).
The BIA abused no discretion in concluding that Vicario received adequate
notice of the deportation hearing. The government sent the notice by certified
mail, return receipt requested, which complied with the statutory requirements.
Vicario’s own affidavit in support of his motion to reopen acknowledged receipt of
the notice, which was printed in both English and Spanish. Because the
government complied with the statutory requirements, no due process violation
occurred. Vicario’s argument that oral notice was required is unavailing. The
statute on which Vicario relies, 8 C.F.R. § 242.1(c) (1995) requires oral notice only
in the case of personal service, which did not happen -- and was not required -- in
this case.4
4
Vicario’s argument that the lack of oral warnings allows him to reopen his proceedings
to apply for adjustment of status is inapposite. The absence of oral warnings is relevant only to
the extent that the omission to give them would have permitted Vicario to seek discretionary
relief within the five-year period after the in absentia deportation order was entered. See 8
U.S.C. § 1252(e)(1), (5). But more than five years have passed so Vicario could apply for
adjustment of status even if he had been given oral warnings. To the extent Vicario sought
separately to move to reopen to apply for adjustment of status, the BIA denied his request as
untimely. On appeal, Vicario does not challenge the untimeliness determination; and thus, he
has abandoned this challenge. See Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1228 n.2
6
PETITION DENIED.5
(11th Cir. 2005).
5
We reject Vicario’s other arguments that the BIA abused its discretion -- including that
the IJ did not grant him a hearing, the IJ and BIA failed to give a thorough analysis of facts and
law, and that he initially was not deportable. No requirement exists that a hearing be had on a
motion to reopen, and the BIA considered all Vicario’s arguments about the denial of his motion
to reopen. Vicario does not otherwise provide a basis for granting the requested relief of
rescinding the in absentia deportation order. See 8 U.S.C. § 1252b(c)(3)(A), (B).
7