Ghafarian Dehkordi v. Holder , 410 F. App'x 34 ( 2010 )

FILED
DEC 17 2010
NOT FOR PUBLICATION * MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAMTIN GHAFARIAN DEHKORDI, No. 08-70275
Petitioner, Agency No. A070-280-399
v.
ERIC H. HOLDER, JR., MEMORANDUM
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 4, 2010 **
San Francisco, California
Before: GOULD and CALLAHAN, Circuit Judges, and KORMAN,*** District Judge.
Ramtin Ghafarian Dehkordi, who entered the country under the Visa Waiver
Pilot Program, petitions for review of the Board of Immigration Appeals’ (“BIA”)
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
This panel unanimously finds this case suitable for decision without oral argument.
See Fed. R. App. P. 34(a)(2).
***
The Honorable Edward R. Korman, Senior United States District Judge for the
Eastern District of New York, sitting by designation.
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order affirming the Immigration Judge’s order denying his motion to reopen. The
Immigration Judge deemed Dehkordi’s applications for asylum, withholding of
removal, and relief under the Convention Against Torture to have been abandoned,
and accordingly denied them, because Dehkordi failed to appear for the master
calendar hearing. Dehkordi filed a motion to reopen proceedings, claiming that he had
not received notice of the hearing because he changed residences and the Immigration
Court sent the notice to his former residence. The Immigration Judge denied the
motion, finding that Dehkordi was properly charged with constructive notice of the
hearing because the Immigration Court mailed the notice of hearing to Dehkordi’s
address of record.
Dehkordi concedes that he failed to notify the Immigration Court of his new
address. But he argues that the Immigration Court failed to notify him adequately that
he was obligated to report his new address to the Immigration Court. Specifically, the
Form I-863 that he received included the following instruction: “In the event of your
release from custody, you must immediately report any change of address to the
Immigration Court on Form EOIR-33 . . . .” Dehkordi argues that this instruction
failed to provide adequate notice because it seems to require address-change reporting
to the Immigration Court on Form EOIR-33 only “[i]n the event of [the alien’s]
release from custody.” Yet Dehkordi has never been in or released from custody.
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Thus, Dehkordi argues, he was not adequately notified that this obligation applied to
him.
I.
We have jurisdiction under 8 U.S.C. § 1252(a) to review the BIA’s order only
if a final order of removal was entered by the Immigration Judge. See Alcala v.
Holder, 563 F.3d 1009, 1013 (9th Cir. 2009). Although there are conflicting
indications in the record regarding whether an in absentia removal order was entered
below, the denial of an asylum application in a Visa Waiver Program proceeding
before an Immigration Judge “is the functional equivalent of a removal order,”
Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir. 2006), because no other relief from
removal is available to a Visa Waiver Program participant whose period of authorized
stay has expired. See Mitondo v. Mukasey, 523 F.3d 784, 787 (7th Cir. 2008); Shehu
v. Att’y Gen. of U.S., 482 F.3d 652, 656 (3d Cir. 2007); Nreka v. U.S. Att’y Gen., 408
F.3d 1361, 1367 (11th Cir. 2005). The denial of the motion to reopen asylum-only
proceedings in which the asylum application was denied is therefore reviewable under
8 U.S.C. § 1252(a).
We review the BIA’s dismissal of Dehkordi’s appeal for abuse of discretion.
See Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). The BIA abused its
discretion only if it acted “arbitrarily, irrationally, or contrary to law.” Id. We review
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both the legal determinations of the BIA and the claim of a due process violation de
novo. See Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791 (9th Cir. 2003).
II.
The asylum applications of aliens who fail to appear for their asylum-only
hearing must be denied. 8 C.F.R. § 1208.2(c)(3)(ii). But aliens may move to reopen
proceedings if they “did not receive the notice” of the hearing date. Id. at
§ 1208.2(c)(3)(ii)(A). Except as otherwise specified in 8 C.F.R. § 1208.2, the rules
of procedure that apply to removal proceedings also apply to these asylum-only
proceedings. 8 C.F.R. § 1208.2(c)(3)(i). Under these rules, aliens are deemed to have
received a hearing notice if the Immigration Court mails it to the alien’s address of
record, provided the alien has previously been advised in writing of his or her
obligation to report any address change to the Immigration Court. See 8 U.S.C.
§ 1229 (a)(1)(F)(ii), (c). Here, Dehkordi claims that he did not receive constructive
notice of the hearing because the Form I-863 was confusing. We agree.
The notice contained in the Form I-863 can be understood to mean that an alien
must notify the Immigration Court of a change of address on Form EOIR-33 only if
the alien is released from custody. Yet there is no dispute that Dehkordi was never
in or released from custody. Consequently, Dehkordi may not be charged with
constructive notice of the hearing.
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Our holding in this case is consistent with Singh v. Ashcroft, 362 F.3d 1164 (9th
Cir. 2004), which held that another address-reporting instruction in an immigration
form that was similarly expressed in a conditional statement failed to provide adequate
notice of the alien’s address-reporting obligation. Our decision in Popa v. Holder,
571 F.3d 890 (9th Cir. 2009), is not inconsistent. There, the alien misconstrued
multiple provisions explaining the address-reporting requirement, whereas here, the
Form I-863 contained a single instruction nested in a misleading conditional statement
concerning the alien’s release from custody.
In sum, the BIA abused its discretion in dismissing Dehkordi’s appeal of the
Immigration Judge’s denial of his motion to reopen because, under the circumstances,
Dehkordi did not receive adequate notice of the hearing, see 8 C.F.R. §
1208.2(c)(3)(ii)(A), and proceeding against him in absentia thus violated his right to
due process, see Andia v. Ashcroft, 359 F.3d 1181, 1184–85 (9th Cir. 2004) (per
curiam).
III.
Dehkordi appealed the BIA’s conclusion that “even if the instant proceedings
were reopened, the Immigration Judge would not have jurisdiction to entertain an
application for adjustment of status.” We agree with the BIA.
Visa Waiver Program participants are “allowed to seek adjustment of their
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status by filing an immediate relative petition.” Freeman v. Gonzales, 444 F.3d 1031,
1033 n.1 (9th Cir. 2006) (citing 8 U.S.C. §§ 1187, 1255(c)(4)). But any such
application for adjustment of status must be filed within the 90-day period of
authorized stay. See Momeni v. Chertoff, 521 F.3d 1094, 1096 (9th Cir. 2008).
Although Dehkordi claims that he might be eligible for adjustment of status based
upon a once-anticipated marriage to a U.S. citizen and/or an allegedly-approved
immediate-relative application, he has not even argued that he applied for adjustment
of status within the 90-day period of his authorized stay. Consequently, Dehkordi is
ineligible to seek adjustment of status on the basis of an immediate-relative
application. See id. at 1096–97.
CONCLUSION
For the foregoing reasons, Dehkordi’s petition for review is GRANTED in part
and DENIED in part, and the matter is REMANDED to the BIA for further
proceedings consistent with this order.
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