Jose Moscoso-Alvarado v. Robert Wilkinson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUCIO MOSCOSO-ALVARADO, No. 18-72887
Petitioner, Agency No. A078-317-723
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 10, 2021**
San Francisco, California
Before: HURWITZ and BRESS, Circuit Judges, and CORKER,*** District Judge.
Jose Moscoso-Alvarado, a citizen and native of Guatemala, was charged with
removability for overstaying a visitor visa. At a 2002 bond hearing, he stated he
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Clifton L. Corker, United States District Judge for the
Eastern District of Tennessee, sitting by designation.
would live and receive mail at his brother’s home in California while awaiting a
removal hearing. The immigration court mailed two notices of the time and place
of the hearing to that address, but Moscoso failed to appear and was ordered removed
in absentia. Moscoso moved to reopen proceedings in 2017, claiming he had not
received notice of his removal order until 2011. An Immigration Judge denied relief,
and the Board of Immigration Appeals (“BIA”) dismissed an appeal. Reviewing for
abuse of discretion, see Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014), we deny
the petition for review in part and dismiss it in part for lack of jurisdiction.
1. A hearing notice is presumed received when “properly directed” to the
alien’s last provided address. See Busquets-Ivars v. Ashcroft, 333 F.3d 1008, 1010
(9th Cir. 2003) (quoting Rosenthal v. Walker, 111 U.S. 185, 193 (1884)); Matter of
M-R-A-, 24 I. & N. Dec. 665, 673 (BIA 2008). Although “delivery by regular mail
does not raise the same ‘strong presumption’ as certified mail,” the burden remains
on the alien to rebut the presumption of receipt. Salta v. INS, 314 F.3d 1076, 1079
(9th Cir. 2002).
Moscoso admitted that he resided at his brother’s home for only “a few days,”
but averred that his brother “always” informed him when mail arrived, and that no
immigration court mailings had arrived. The BIA did not abuse its discretion in
finding that this bare allegation was insufficient to rebut the presumption of receipt.
Moscoso’s other attempts to defeat the presumption are also unavailing. First,
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he claims the record is missing an “Exhibit 4,” allegedly demonstrating improper
handing within the agency; but the document is located at page 210 of the
Administrative Record. Second, he argues the immigration court staff should not
have used a stamp to “sign” the notice, but he points to no Ninth Circuit precedent
requiring a handwritten signature on an otherwise properly directed notice. See
Busquets-Ivars, 333 F.3d at 1010 (requiring a correct address, sufficient postage, and
deposit in the mail). Third, Moscoso fails to offer the “clear evidence” required to
rebut a “presumption of regularity” that immigration proceedings enjoy. See Kohli
v. Gonzales, 473 F.3d 1061, 1068 (9th Cir. 2007). He therefore fails to show that
court staff who signed a certificate of service indicating service by mail did not in
fact mail that notice in accordance with their duties. Fourth, though Moscoso argues
the regulations do not require an alien to provide a physical residence, but rather
only an address where an alien “may be contacted,” the BIA did not rest its decision
on Moscoso’s failure to update his address. Rather, the agency found that he
presumptively received notice at his brother’s address, and our review is limited to
those grounds. See Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019).
2. We lack jurisdiction to review the agency’s denial of sua sponte reopening.
See Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1115 (9th Cir. 2019). This case
does not fit into the narrow exception applicable if the agency rests its grant or denial
of the sua sponte reopening on “legal or constitutional error.” Menendez v.
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Whitaker, 908 F.3d 467, 471 (9th Cir. 2018). Although Moscoso claims the agency
violated due process when it ignored his “policy arguments” for reopening, the
agency considered all relevant evidence and “weigh[ed] the equities” of his case. A
“petitioner may not create the jurisdiction that Congress chose to remove simply by
cloaking an abuse of discretion argument in constitutional garb.” Torres-Aguilar v.
INS, 246 F.3d 1267, 1271 (9th Cir. 2001). Because the BIA neither interpreted any
law nor based the denial on a mistaken understanding of its own authority, see Singh
v. Holder, 771 F.3d 647, 650 (9th Cir. 2014), its decision is “committed to agency
discretion.” Menendez-Gonzalez, 929 F.3d at 1116.
PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN
PART.
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