Gurpreet Singh v. Eric Holder, Jr. ( 2013 )

FILED
NOT FOR PUBLICATION SEP 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GURPREET SINGH, No. 09-73013
Petitioner, Agency No. A074-152-323
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 27, 2013
Seattle, Washington
Before: McKEOWN and CLIFTON, Circuit Judges, and RAKOFF, Senior District
Judge.**
Gurpreet Singh entered the United States without inspection in October
1995. He was apprehended and personally served with an Order to Show Cause
(“OSC”) informing him that deportation proceedings were being initiated and that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
he was “required to be present at [his] deportation hearing prepared to proceed.”
The consequences of violating this requirement were made explicit: “If you fail to
appear at any hearing after having been given written notice of the date, time and
location of your hearing, you will be ordered deported in your absence, if it is
established that you are deportable and you have been provided the appropriate
notice of the hearing.”1 Singh left the country in December 1995 to attempt to
obtain asylum in Canada. Singh listed his new California address in a November
1995 motion to change venue and his attorney’s address in a December 1995
motion to change venue. He never informed the court of any further changes of
address or his departure to Canada. In January 1996, the IJ sent notice of an April
1996 hearing, by registered mail, to Singh and his attorney at the last addresses on
file. Both delivery receipts were signed, though not by Singh or by his attorney.
Neither Singh nor his attorney appeared at the hearing, and Singh was ordered
deported in absentia.
In 2007, Singh unsuccessfully moved to rescind the in absentia order. Singh
now appeals the Board of Immigration Appeals’ 2009 dismissal of his appeal of
the denial of his motion for rescission. We have jurisdiction and we affirm.
1
Because there was no ambiguity about what would happen if Singh failed
to appear at the hearing, there was no due process violation.
2
Singh argues that the immigration judge lacked jurisdiction to conduct the
1996 in absentia hearing because he was not “deportable” after he left the country.
This is incorrect. Jurisdiction was proper because the charging document—the
OSC—was filed and personally served on Singh when he was in the United States
in 1995. See 8 C.F.R. § 3.14 (1995). The BIA adequately addressed Singh’s
argument that 8 U.S.C. § 1251(a) (1994) limits jurisdiction to non-citizens who are
“in the United States.” The BIA relied on Matter of Brown, 18 I & N Dec. 324
(BIA 1982), which held that deportation under § 1251 was proper even where the
non-citizen had left the United States during the pendency of deportation
proceedings. We agree; Singh’s unilateral departure did not compel termination of
the proceedings.
Singh’s argument that he never received notice of the hearing also fails. The
immigration judge sent notice of the hearing to Singh and his attorney by
registered mail. The declarations of Singh and his attorney do not rebut the
presumption of effective service. See Arrieta v. I.N.S., 117 F.3d 429 (9th Cir.
1997).
AFFIRMED.
3