Juan Reyes-Escobar v. Alberto Gonzales ( 2010 )

FILED
NOT FOR PUBLICATION FEB 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JUAN AUGUSTO REYES-ESCOBAR, Nos. 08-56601
Petitioner, Agency No. A 71-584-048
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
JUAN AUGUSTO REYES-ESCOBAR, Nos. 08-70918
Petitioner, Agency No. A 71-584-048
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted February 5, 2010
Pasadena, California
Before: WARDLAW and CALLAHAN, Circuit Judges, and SEDWICK, **
District Judge.
Juan Augusto Reyes-Escobar (“Reyes-Escobar”) appeals the Board of
Immigration Appeals’ (“BIA”) decision affirming the denial of his motion to
reopen his 1994 in absentia exclusion order. He also appeals the district court’s
grant of summary judgment affirming the United States Citizenship and
Immigration Services’ (“USCIS”) determination of his ineligibility for benefits
under the settlement agreement in Am. Baptist Churches v. Thornburg, 760 F.
Supp. 796 (N.D. Cal. 1991) (“ABC Agreement”) . We have jurisdiction pursuant
to 8 U.S.C. § 1252 and 28 U.S.C. § 1291. We affirm the BIA and district court.1
1. To prevail on a motion to reopen, Reyes-Escobar must demonstrate
“reasonable cause” for his earlier failure to appear. Matter of Haim, 19 I. & N.
Dec. 641, 642 (BIA 1988). This court reviews de novo Reyes-Escobar’s
“reasonable cause” showing. Hernandez-Vivas v. INS, 23 F.3d 1557, 1560 (9th
Cir. 1994), but cf. Valencia-Fragoso v. INS, 321 F.3d 1204 (9th Cir. 2003).
**
The Honorable John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation.
1
Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
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Reyes-Escobar did not demonstrate “reasonable cause” for his failure to
appear at his 1994 asylum hearing. The record establishes his awareness of the
hearing. His explanation, that he was denied admission to the building due to late
arrival, is implausible because the building was open-access. He failed, moreover,
to contact the government for ten years after the missed hearing to explain his
absence.
2. Reyes-Escobar is not entitled to administrative closure. He did not
request administrative closure at his 1994 hearing, and neither the ABC Agreement
nor due process entitled him to administrative closure in absentia. In re Salvador
Morales, 21 I. & N. Dec. 130, 137 (BIA 1996) (en banc); Am. Baptist Churches,
760 F. Supp. at 805. The purpose of administrative closure is to allow USCIS the
opportunity to determine ABC Agreement benefits eligibility. Morales, 21 I. & N.
Dec. at 134. Because USCIS has determined that Reyes-Escobar is ineligible, his
request for administrative closure is moot.
3. We review de novo the district court’s grant of summary judgment and
interpretation of settlement agreements. Canyon Ferry Road Baptist Church of
East Helena, Inc. v. Unsworth, 556 F.3d 1021, 1027 (9th Cir. 2009); Sotelo v.
Gonzales, 430 F.3d 968, 970 (9th Cir. 2005).
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4. We conclude that Reyes-Escobar cannot benefit from the Fleuti doctrine.
See Rosenburg v. Fleuti, 374 U.S. 449, 462 (1963). The Fleuti doctrine provides
that a legal permanent resident’s excursion outside the United States may not
interrupt his residency period depending on three factors: (1) the length of the
alien’s absence; (2) the purpose of the visit; and (3) whether the alien must produce
travel documents.
Reyes-Escobar cannot take advantage of the Fleuti doctrine for several
reasons. First, it is not clear that the doctrine applies to ABC Agreement members
because it was developed to benefit legal permanent residents and concerns the
interpretation of a section of the Immigration and Nationality Act that is not at
issue here. Moreover, because the ABC Agreement contemplates that class
members will become ineligible for benefits if they leave the United States and are
apprehended upon reentry, Am. Baptist Churches, 760 F. Supp at 800, the Fleuti
doctrine does not appear to apply to ABC Agreement members. Furthermore, even
if the Fleuti doctrine applied, Reyes-Escobar would not qualify for relief because
he chose to leave the country after being denied the requisite travel documents.
5. The government did not violate the ABC Agreement by apprehending
Reyes-Escobar on reentry. As noted, the ABC Agreement contemplated that
members could lose eligibility by leaving the United States. Am. Baptist Churches,
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760 F. Supp. at 800. Also, contrary to Reyes-Escobar’s contention, paragraph 17
of the ABC Agreement, which prohibits the government from “detain[ing]” class
members except under limited circumstances, does not preclude the government
from apprehending class members at point of entry. See generally Chaly-Garcia v.
U.S., 508 F.3d 1201, 1203 (9th Cir. 2007) (holding that the ABC Agreement “is a
contract and its enforceability is governed by familiar principles of contract law”
and that “[c]ontract terms are to be given their ordinary meaning, and when the
terms of a contract are clear, the intent of the parties must be ascertained from the
contract itself.”).
6. Finally, registering as an ABC class member did not vest Reyes-Escobar’s
ABC benefits. He became ineligible for benefits under Paragraph 2 of the ABC
Agreement following his apprehension. Am. Baptist Churches, 760 F. Supp. at
800.
Accordingly, the BIA’s decision and the district court’s grant of summary
judgment are AFFIRMED.
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