Mukash Kumar Patel v. Atty Gen USA ( 2011 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-1554
___________
MUKASH KUMAR MANEKLAL PATEL,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A74 586 999)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 23, 2011
Before: BARRY, HARDIMAN and
STAPLETON, Circuit Judges
(Opinion filed: February 24, 2011)
Harold D. Block, Esq.
710 North Plankinton Avenue
Milwaukee, WI 53203
Attorneys for Petitioner
Dawn S. Conrad, Esq.
Matthew B. George, Esq.
Eric H. Holder, Jr., Esq.
Thomas W. Hussey, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
___________
OPINION
___________
PER CURIAM
Mukash Kumar Maneklal Patel, a citizen of India,
entered the United States without inspection in January 1996.
The former Immigration and Naturalization Service took him
into custody in Texas. On January 14, 1996, Patel was
personally served with an Order to Show Cause, which
charged him with being deportable pursuant to former
Immigration and Nationality Act (“INA”) § 241(a)(1)(B) [8
U.S.C. § 1231(a)(1)(B)]. The Order to Show Cause was read
to Patel in Hindi, and Patel acknowledged receipt by signing
the Order. On April 5, 1996, Patel posted bond and was
2
released from detention. Patel later asserted that he was
unaware of who had posted the money for his release, and
“walked around aimlessly for 6 hours in the rain” until he
found a bus depot. Patel boarded a bus for St. Louis,
Missouri. Shortly thereafter, he traveled to Milwaukee,
Wisconsin.
Meanwhile, Patel’s family hired Saul Brown, an
attorney in New York, who entered his appearance on April
12, 1996. On April 23, 1996, Attorney Brown submitted a
motion to change venue, asserting that Patel was staying with
friends in New Jersey. Over the Government’s objections,
the Immigration Court granted the motion and transferred the
matter to the Immigration Court in Newark, New Jersey. By
certified letter dated May 24, 1996, the Immigration Court
notified Attorney Brown that Patel’s master calendar hearing
was scheduled for September 13, 1996. The record contains a
signed return receipt, indicating that someone in Attorney
Brown’s office accepted the notice.
On August 27, 1996, Attorney Brown moved to
withdraw from the case, arguing that he had not “seen or
heard from the respondent since the respondent was released
from detention . . . .” At the time, Attorney Brown
acknowledged that Patel’s next hearing was scheduled for
September 13, 1996. The Immigration Court denied the
motion to withdraw on September 6, 1996. Patel did not
appear for the September 13, 1996, hearing, and he was
ordered deported in absentia on September 16, 1996. Notice
of the Immigration Judge=s (“IJ”) decision was mailed to
Attorney Brown.
Thirteen years later, in September 2009, Patel filed a
motion to reopen the proceedings on the ground that he had
3
not received proper notice of the hearing. The IJ denied the
motion, holding that Patel “was provided with proper notice
of his deportation case.” The IJ noted that notice of his
September 13, 1996, hearing was sent by certified by mail to
Patel’s attorney of record, that Patel had made no effort to
contact his family to ascertain the name of the attorney who
posted his bond, or to hire another attorney, and that he
otherwise failed to “take[] reasonable action to determine his
obligation to the Immigration Court and to his attorney of
record.” The Board of Immigration Appeals (“BIA”)
dismissed Patel’s appeal. It agreed that Patel had received
proper notice under the statutory requirements in effect in
1996. Even if Attorney Brown was not authorized to
represent Patel, the BIA concluded that notice was adequate
because Patel had not complied with the requirement, set
forth in the Order to Show Cause, that he notify the
Immigration Court of address and telephone number changes.
Patel filed a timely petition for review from the order.
We have jurisdiction under INA § 242(a) [8 U.S.C.
§252(a)]. “We review the denial of a motion to reopen a
removal order entered in absentia for abuse of discretion.”
Cabrera-Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir. 2006)
(citing INS v. Doherty, 502 U.S. 314, 323-24 (1992)). Thus,
in order to succeed on the petition for review, Patel must
ultimately show that the discretionary decision was somehow
arbitrary, irrational, or contrary to law. See Tipu v. INS, 20
F.3d 580, 582 (3d Cir. 1994).
Because Patel’s immigration proceedings were
initiated prior to the 1996 amendments to the INA, we must
apply the notice requirements set forth in former INA § 242B
[8 U.S.C. § 1252b]. Under that statute, aliens were to be
notified of the time and place of their deportation hearings
4
either in person or by certified mail sent to the alien or the
alien’s counsel of record. See INA § 242B(a)(2)(A) [8 U.S.C.
§ 1252b(a)(2)(A)]. In the event an alien failed to appear for a
hearing, the Government had to prove “by clear, unequivocal,
and convincing evidence” that the alien was provided with
notice of the sort described in subsection (a)(2) and that the
alien was deportable. INA § 242B(c)(1) [8 U.S.C.
§1252b(c)(1)]. Written notice was sufficient if it was
“provided at the most recent address” furnished by the alien.
Id. The in absentia deportation order could be rescinded if
the alien moved to reopen at any time and demonstrated that
he did not receive notice in accordance with subsection
(a)(2).1 See INA §242B(c)(3)(B) [8 U.S.C. §1252b(c)(3)(B)].
We conclude that the BIA did not abuse its discretion
in denying the motion to reopen because, for purposes of
1
The proceedings could also be reopened at any time
if the alien demonstrated that he was in custody and that the
failure to appear was through no fault of his own. See INA
§ 242B(c)(3) [8 U.S.C. § 1252b(c)(3)]. Also, an in absentia
order of removal could be rescinded “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.” INA § 242B
(c)(3)(A) [8 U.S.C. § 1252b(c)(3)(A)]. Neither of these
provisions is applicable here because Patel was not in
custody, his motion to reopen was filed 13 years after he was
ordered deported in absentia, and, as noted below, he did not
act diligently as would be required for equitably tolling the
time period for filing a motion to reopen based on exceptional
circumstances. See Mahmood v. Gonzales, 427 F.3d 248, 252
(3d Cir. 2005).
5
rescinding an in absentia removal order under INA
§ 242B(c)(3), Patel has failed to demonstrate that he “did not
receive notice” of the hearing. It is clear that Attorney Brown
was notified of the September 13, 1996, hearing. See Santana
Gonzalez v. Att’y Gen., 506 F.3d 274, 277 (3d Cir. 2007)
(holding that a strong presumption of receipt applies when a
notice from an Immigration Court is sent by certified mail).
Furthermore, Patel no longer disputes that Attorney Brown
was his counsel of record during the relevant time period. Cf.
Sewak v. INS, 900 F.2d 667, 672-74 (3d Cir. 1990)
(suggesting that new hearing would be required if petitioner
could substantiate his allegations that his attorney was not
authorized to enter an appearance on his behalf). In April
1996, Attorney Brown entered his appearance before the
Immigration Court in Texas. On the Entry of Appearance
form, Attorney Brown checked the box labeled “Deportation
(Including Bond Redetermination)” to indicate the “type of
proceeding for which I am entering an appearance.” Attorney
Brown then successfully moved for a change of venue to
Newark, New Jersey. Shortly thereafter, on May 24, 1996,
the Immigration Court notified Attorney Brown by certified
letter that Patel’s master calendar hearing was scheduled for
September 13, 1996. Although Attorney Brown moved to
withdraw from the case shortly before the scheduled hearing
because he had “not seen or heard from” Patel, the IJ denied
the motion. Thus, Attorney Brown was Patel’s counsel of
record when the hearing notice was sent and on the date of
the hearing.2
2
We agree with the BIA that, even assuming that
Attorney Brown was not authorized to represent Patel, he
cannot establish that he did not receive notice of the hearing.
6
Patel argues that “[f]or the in absentia order to be
valid, . . . actual notice [of the hearing had to be] effected on
[him] through Attorney Brown.” We disagree. Service by
certified mail to an alien’s attorney can satisfy the INA’s
notice requirement. See Scorteanu v. INS, 339 F.3d 407, 412
(6th Cir. 2003); see also Anin v. Reno, 188 F.3d 1273, 1277
(11th Cir. 1999) (“[N]o statutory provision requires an alien
to receive actual notice of a deportation proceeding.”). Patel
asserts, however, that “the purpose for serving [Attorney]
Brown, as [his] representative, was defunct ab initio” because
Attorney Brown was unable to contact him. Importantly,
however, Patel contributed to his lack of notice by failing to
make any effort to contact Attorney Brown or to keep himself
apprised of his immigration proceedings.3 In Bejar v.
There is no evidence in the record that Patel complied with
the requirement, set forth in the Order to Show Cause, that he
inform the Immigration Court of his current mailing address.
See Gomez-Palacios v. Holder, 560 F.3d 354, 360 (5th Cir.
2009) (recognizing that “an alien’s failure to receive actual
notice of a removal hearing due to his neglect of his
obligation to keep the immigration court apprised of his
current mailing address” does not entitle the alien to
rescission of an in absentia removal order).
3
Patel complains that the Order to Show Cause, which
informed him of his obligation to update his current address
with the Immigration Court, was read to him in Hindi, rather
than his native language, Gujarati. Any claim related to the
interpretation of the Order to Show Cause has been waived,
however, because Patel did not exhaust it with the BIA. See
Lin v. Att’y Gen., 543 F.3d 114, 120 n.6 (3d Cir. 2008). He
did allege in his motion to reopen that that “the only way [he]
7
Ashcroft, 324 F.3d 127, 129-30 (3d Cir. 2003), the
petitioner’s attorney had received notice of the removal
hearing, but was unable to locate and communicate with his
client because she had moved and had failed to provide her
attorney with her new address. See Mahmood, 427 F.3d at
251 (discussing facts of Bejar). We stated that “we cannot
entertain an appeal based on [petitioner’s] allegation that she
personally failed to receive notice, for it is undisputed that her
former attorney received timely notice of her removal
hearing, and service upon her attorney is considered to be
legally sufficient.” Bejar, 324 F.3d at 131. Here, given
Patel’s lack of diligence, we conclude that he has failed to
demonstrate that he did not receive notice in accordance with
INA § 242B(a)(2). Consequently, the BIA did not abuse its
discretion in holding that Patel was not entitled to rescission
of the in absentia deportation order.
For the foregoing reasons, we will deny the petition for
review.
would have known [of] his obligation to apprise the Service
of his current address B the papers the Service served upon
release on bond B had been rain-soaked, waterlogged and
obliterated.” Because Patel has not argued this point in his
opening brief, we will not consider it. See Bradley v. Att’y
Gen., 603 F.3d 235, 243 n.8 (3d Cir. 2010) (holding that
argument not raised in opening brief is waived).
8