Isait Mendez-Cano v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14251
Non-Argument Calendar
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Agency No. A089-973-242
ISAIT MENDEZ-CANO,
a.k.a. Isait Mendez Cano,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 8, 2013)
Before WILSON, MARTIN and FAY, Circuit Judges.
PER CURIAM:
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Isait Mendez-Cano (Mendez) seeks review of the Board of Immigration
Appeals’ (BIA) denial of his appeal of the Immigration Judge’s (IJ) motion to
reopen his in absentia order of removal. On petition for review, Mendez argues
that the BIA abused its discretion when it found that Mendez failed to demonstrate
that “exceptional circumstances” prevented him from attending his master calendar
hearing.
The Supreme Court has held that federal courts generally have jurisdiction to
review orders denying motions to reopen. See Kucana v. Holder, 558 U.S. 233,
___, 130 S. Ct. 827, 839–40 (2010). We review the BIA’s denial of a motion to
reopen for an abuse of discretion. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th
Cir. 2006) (per curiam). The BIA’s discretion is quite broad, and 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). The administrative 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) (per curiam). In the context of a motion to reopen, whether an alien
received sufficient notice of his removal hearing is a finding of fact. See
Contreras-Rodriguez v. U.S. Att’y Gen., 462 F.3d 1314, 1317 (11th Cir. 2006) (per
curiam) (granting petition for review and remanding for the BIA to consider in the
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first instance whether petitioner received a sufficient notice of hearing before being
removed in absentia).
Any alien who does not attend a proceeding after written notice has been
provided is subject to removal in absentia if the government establishes by “clear,
unequivocal, and convincing evidence” that it gave written notice and that the alien
was removable. 8 U.S.C. § 1229a(b)(5)(A). An in absentia order can be issued if
notice had been provided to the alien or to the alien’s counsel of record. Id.; see
also 8 U.S.C. § 1229(a)(2)(A). Receipt of notice by counsel is sufficient to deny a
motion to reopen based on a lack of notice. See Anin v. Reno, 188 F.3d 1273, 1277
(11th Cir. 1999) (per curiam).
An alien may seek rescission of an in absentia removal order by filing a
motion to reopen at any time if the alien demonstrates that (i) exceptional
circumstances justified his failure to appear, or (ii) he did not receive notice of the
hearing and his failure to appear was through no fault of his own. 8 U.S.C. §
1229a(b)(5)(C)(i), (ii). “Exceptional circumstances” are defined by statute as
exceptional circumstances (such as battery or extreme
cruelty to the alien or any child or parent of the alien,
serious illness of the alien, or serious illness or death of
the spouse, child, or parent of the alien, but not including
less compelling circumstances) beyond the control of the
alien.
8 U.S.C. § 1229a(e)(1).
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Throughout the course of proceedings, Mendez never contested the fact that
his counsel received notice of the March 31 hearing. The fact that counsel was
present at the March 31 hearing suggests that counsel did receive notice of it.
Nothing in the record compels a conclusion that Mendez’s counsel did not receive
notice of the hearing. See Lonyem, 352 F.3d at 1340. Therefore, as a result, the
BIA did not abuse its discretion in denying Mendez’s motion to reopen based on
an alleged lack of notice. See Anin, 188 F.3d at 1277.
The BIA also did not abuse its discretion in finding that Mendez failed to
demonstrate that “exceptional circumstances” prevented him from appearing at the
March 31 hearing. Mendez presented evidence that his wife was in the hospital on
March 24 and 25, and affidavit testimony that he and his wife were unable to
access their mail from March 24 until sometime after March 31. However, he did
not present any evidence explaining why the March 24 accident prevented him
from learning about his March 31 hearing, of which he could have had notice
through his counsel in January or February. Mendez also failed to present any
evidence that suggested that, had he known about the hearing, exceptional
circumstances would have prevented his attendance. Because Mendez failed to
demonstrate that he was entitled to have his in absentia order reopened under
either statutory justification, the BIA did not abuse its discretion in affirming the
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IJ’s denial of Mendez’s motion to reopen, and we deny Mendez’s petition for
review. See Ali, 443 F.3d at 808.
PETITION DENIED.
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