Mujo Adovic v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-16466
Non-Argument Calendar
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Agency No. A024-294-811
MUJO ADOVIC,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(October 4, 2013)
Before DUBINA, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
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Petitioner Mujo Adovic (“Adovic”), a national and citizen of the former
Yugoslavia, seeks review of the Board of Immigration Appeals’ (“BIA”) final
order dismissing his appeal of the Immigration Judge’s (“IJ”) denial of his motion
to reopen his deportation proceedings, brought under the Immigration &
Nationality Act (“INA”) § 240(b)(5)(C), 8 U.S.C. § 1229a(b)(5)(C)(ii), and INA §
240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii), and its refusal to rescind an in
absentia deportation order entered on September 1, 1994, for entering without
inspection, in violation of former INA § 241(a)(2), 8 U.S.C. § 1251(a)(2). Adovic
argues that his lack of notice of the hearing on his deportation and his changed
circumstances justify reopening the proceedings. He also argues that the lack of
notice violated his constitutional right to due process.
I. Lack of Notice and Changed Country Conditions
We review for abuse of discretion the BIA’s denial of a motion to reopen.
Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006). “Our review is limited
to determining whether there has been an exercise of administrative discretion and
whether the matter of exercise has been arbitrary or capricious.” Id. (internal
quotation marks omitted). Moreover, factual findings are considered conclusive
unless a reasonable factfinder would be compelled to conclude to the contrary.
Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003). In the context of
a motion to reopen, whether an alien received sufficient notice of his removal
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hearing is a finding of fact. See Contreras-Rodriguez v. U.S. Att’y Gen., 462 F.3d
1314, 1317 (11th Cir. 2006) (remanding for BIA to consider in the first instance
whether petitioner received sufficient notice of hearing). An alien may move to
reopen a deportation order entered in absentia at any time if he demonstrates that
he did not receive notice. INA § 240(b)(5)(C); 8 U.S.C. § 1229a(b)(5)(C)(ii). This
is an exception to the normal time and number limits on such motions. 8 C.F.R.
§ 1003.23(b)(4)(iii)(D).
Under the law in effect at the time Adovic entered the country, 1 former 8
U.S.C. § 1252(b) (repealed 1990), a deportation hearing could be held in absentia
if the alien was given a reasonable opportunity to be present and, without
reasonable cause, failed or refused to attend the proceedings. INA § 242(b), 8
U.S.C. § 1252(b) (1982). Under that law, failure to appear for a hearing could be
excused and the in absentia order rescinded if the alien demonstrates “reasonable
cause” for his absence. See id. An alien was required to be given notice,
reasonable under all the circumstances, of the time and place at which the
proceedings would be held. Id. The Immigration Act of 1990, made the notice
requirements on the agency more stringent, and penalties for failure to appear more
severe. See Pub.L. No. 101-649, § 545, 104 Stat. 4978 (1990). There appears to
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Adovic’s deportation proceeding commenced before the effective date of the Illegal
Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) and is therefore governed by
pre-IIRIRA law in effect when he was served with the order to show cause. See Najjar v.
Ashcroft, 257 F.3d 1262, 1276-77 (11th Cir. 2001) (citing IIRIRA § 309(c)(1)).
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be limited law applying the previous notice provisions. As discussed below,
however, the notice here was sufficient to meet even the more stringent notice
provisions now in effect, so we need not define the contours of the less stringent
notice standard in effect prior to the passage of IRRIRA.
Under the more stringent provisions, where a hearing notice must be sent by
certified mail and there was proof of attempted delivery and notification, the BIA
determined that a strong presumption of effective service arises. In re Grijalva, 21
I. & N. Dec. 27, 37 (BIA 1995), superseded by statute on other grounds as stated
in Patel v. Holder, 652 F.3d 962, 968 n.4 (8th Cir. 2011). That presumption could
be overcome by substantial and probative evidence that there was an improper
delivery or that nondelivery was not due to the respondent’s failure to provide an
address where he could receive mail. Id. We have also held that, where there is no
dispute that the INS sent a notice by certified mail to an alien’s last known address,
as a matter of law, there is no flaw in the notice given. United States v. Zelaya,
293 F.3d 1294, 1298 (11th Cir. 2002).
A motion to reopen may also be granted, despite time and number
limitations, if the motion to reopen is for the purpose of reapplying for relief based
on changed circumstances arising in the country of nationality or in the country to
which deportation has been ordered, if such evidence is material and was not
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available and could not have been discovered or presented at the previous hearing.
INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
We conclude from the record that the BIA did not abuse its discretion by
dismissing Adovic’s appeal of the IJ’s denial of his motion to reopen. The agency
notified Adovic of his hearing by certified mail, which constitutes reasonable
notice under the circumstances. Although Adovic did not receive that notice, he
provided no reason that it was due to post office error or that the INS failed to send
notice to the last address that he provided. The BIA was not required to assume
that Adovic’s lack of actual notice was anyone’s fault but his own when it had
evidence of sufficient service and no evidence to the contrary. The BIA also did
not abuse its discretion by rejecting Adovic’s argument with respect to changed
circumstances because he did not present evidence of material change. The
evidence he presented, respecting the purported death of his brother, is facially
insufficient to demonstrate changed circumstances, particularly given the lack of
evidence to connect the person who died to Adovic or that person’s death to
overall country conditions. Accordingly, we conclude that the BIA did not abuse
its discretion when it dismissed Adovic’s appeal of the IJ’s denial of his motion to
reopen.
II. Due Process
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We review constitutional claims such as that for a deprivation of due process
de novo. Ali, 443 F.3d at 808. “Due process is satisfied so long as the method of
notice is conducted in a manner reasonably calculated to ensure that notice reaches
the alien.” Dominguez v. U.S. Att’y Gen., 284 F.3d 1258, 1259 (11th Cir. 2002)
(internal quotation marks omitted). This is satisfied by notice sent to the alien’s
last known address. Id. at 1260.
Adovic does not dispute that notice was sent to his last known address and
presents no cases in this circuit suggesting that the rule described in Dominguez
has been called into doubt. Due process was therefore satisfied.
Accordingly, we deny the petition for review.
PETITION DENIED.
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