Ormidia Cruz Pereira v. U.S. Atty. General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-13592 August 31, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency No. A78-952-040
ORMIDA CRUZ PEREIRA,
Petitioner,
versus
UNITED STATES ATTORNEY GENERAL,
Respondent.
________________________
No. 04-13593
Non-Argument Calendar
________________________
Agency No. A78-952-037
CLARA LORETA COMEZ CRUZ,
Petitioner,
versus
UNITED STATES ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 31, 2005)
Before ANDERSON, BLACK and HULL, Circuit Judges
PER CURIAM
Ormida Cruz Pereira (“Cruz-Pereira”) and her adult daughter, Clara Gomez
Cruz (“Gomez-Cruz”), both citizens and nationals of Cuba, petition this court for
review of a decision of the Board of Immigration Appeals (“BIA”). The BIA’s
decision affirmed the Immigration Judge’s (“IJ’s”) denial of the petitioners’
motion to reconsider the IJ’s prior ruling refusing to reopen their removal
proceedings. After review, we dismiss the petition in part for lack of jurisdiction
and deny it in part.1
I. BACKGROUND
On August 22, 2002, Cruz-Pereira and Gomez-Cruz arrived at the Gateway
port of entry to the United States in Brownsville, Texas, and applied for admission
1
This Court granted Cruz-Pereira’s and Gomez-Cruz’s motion to consolidate their
appeals. Additionally, their cases were consolidated throughout all of the administrative
proceedings.
2
as intended immigrants. Because neither had valid entry documents, they were
each served with a Notice to Appear (“NTA”), charging that they were subject to
removal pursuant to INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I).
Each petitioner’s NTA indicated that the time and date of her removal hearing
before an IJ was “[t]o be determined.”
The petitioners were then paroled into the United States. Immigration
authorities required each petitioner to provide an address at which they could be
contacted. Cruz-Pereira’s stated that her address in the United States was to be
“1710 SW 86th Ave., Miramar, FL 33025.” Gomez-Cruz provided the same
address, “1710 SW 86th Ave., Miramar FL,” except that she listed the zip code as
“33023” instead of “33025.”
A. Notice and Original Removal Proceeding
On September 5, 2002, a “Notice of Hearing in Removal Proceeding” was
mailed from the Immigration Court in Miami, Florida to each petitioner. These
notices stated that the petitioners’ hearing would occur on May 9, 2003, at 9:00
a.m. One notice was properly addressed to Cruz-Pereira at “1710 S.W. 86th Ave.,
Miramar, FL 33025,” as this was the address Cruz-Pereira gave. The other notice
was incorrectly addressed to Gomez-Cruz at “1710 S.W. 86th Ave., Miami, FL
33023.” The notice incorrectly listed the city as Miami, as the address Gomez-
Cruz gave was in Miramar, not Miami. However, the notice did correctly list the
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zip code incorrectly given by Gomez-Cruz. Despite these mistakes, the petitioners
concede that they received these notices.
The notices contained the following language instructing the petitioners to
notify the Immigration Court if the address contained on the notice was incorrect:
IF YOUR ADDRESS IS NOT LISTED ON THE NOTICE TO
APPEAR, OR IT IS NOT CORRECT, WITHIN FIVE DAYS OF
THIS NOTICE YOU MUST PROVIDE TO THE IMMIGRATION
COURT IN MIAMI, FL [A FORM WITH YOUR CORRECT
ADDRESS] . . . . CORRESPONDENCE FROM THE COURT,
INCLUDING HEARING NOTICES, WILL BE SENT TO THE
MOST RECENT ADDRESS YOU HAVE PROVIDED AND WILL
BE CONSIDERED SUFFICIENT NOTICE TO YOU AND THESE
PROCEEDINGS CAN GO FORWARD IN YOUR ABSENCE.
Despite the incorrect address on her notice, Gomez-Cruz did not file any change of
address form.
The Immigration Court’s records indicate that a second notice was sent to
each petitioner on October 10, 2002. The second notices informed petitioners of a
different date, February 21, 2003, on which their hearing was to occur. These
second notices were sent in the same manner as the September 5 notices, being
mailed to Cruz-Pereira at the correct address in Miramar and to Gomez-Cruz at the
incorrect address in Miami. Petitioners claim that they did not receive these
notices.2
2
Cruz-Pereira claims that she did not receive that October 10 notice despite its being
mailed to the address she gave.
4
Petitioners did not appear at the February 21, 2003 hearing. The IJ ordered
them removed in absentia. An Order of Removal, dated February 21, 2003, was
sent to the same addresses (one correct, one incorrect) informing the petitioners
that they had been ordered removed. Petitioners concede that they received these
orders, but claim that they were completely surprised to learn of the February 21,
2003, hearing date and had been preparing to attend a hearing on May 9, 2003.
B. Attempt to Reopen Proceedings
On April 28, 2003, the petitioners moved to reopen the removal proceedings.
Gomez-Cruz argued that she did not receive the October 10 notice of the February
21 hearing because the notice was sent to Miami, an incorrect address. Cruz-
Pereira indicated that she did not know why she did not receive the October 10
notice, but asserted that it may have been related to the incorrect address used for
her daughter.
In an order dated May 8, 2003, the IJ denied their motion to reopen, stating
that the petitioners had “not established a lack of notice for [their] removal
hearing.” The IJ reasoned that (1) the notice was mailed, (2) “THE NOTICE WAS
NOT RETURNED,” and (3) “the respondent[s] acknowledge[] that it is [their]
address.” Petitioners did not appeal this May 8, 2003 ruling to the BIA.
On June 6, 2003, the petitioners filed a motion to reconsider the IJ’s denial
of their motion to reopen. In this motion, the petitioners alleged that they had not
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received the October 10 notices because they were sent to the wrong addresses.
The petitioners also stated their belief that Gomez-Cruz had mistakenly provided
the incorrect zip code (33023) when she filled out her immigration forms upon
entry to the United States.
On July 23, 2003, the IJ denied petitioners’ motion to reconsider the denial
of their motion to reopen. The IJ stated that “the assertions in the motion are not
credible.” In addition, the IJ noted that if the petitioners provided an incorrect
address, then the petitioners “have not complied with the address reporting
requirements.” The IJ also stated that “[t]he court sent notice to the address that
[the petitioners] used on [their] asylum application [which was signed by
petitioners].” Thus, the IJ concluded that the petitioners “failed to meet the burden
required to reopen proceedings.”
C. Appeal to the BIA
On August 21, 2003, Cruz-Pereira and Gomez-Cruz appealed to the BIA.
Their Notice of Appeal indicated that they were appealing from the IJ’s July 23,
2003 decision denying their June 6, 2003 motion to reconsider. In their brief, they
argued that because Gomez-Cruz’s notice was sent to the incorrect Miami address
instead of to the correct address in Miramar, the petitioners did not receive proper
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notice of their hearing and thus the proceedings should have been reopened. The
BIA affirmed “without opinion the results of the decision below.”3
II. DISCUSSION
We first explain why we lack jurisdiction to consider the IJ’s May 8, 2003
order denying petitioners’ motion to reopen, and have jurisdiction to consider only
the IJ’s July 23, 2003 order denying the petitioners’ motion to reconsider that
denial.
A. Jurisdiction
Because petitioners must exhaust their administrative remedies before filing
a petition for review, we may review an IJ’s decision only if petitioners first
appealed that decision to the BIA. See 8 U.S.C. § 1252(d) (stating that a “court
may review a final order of removal only if (1) the alien has exhausted all
administrative remedies available to the alien as of right . . .”); De La Teja v.
United States, 321 F.3d 1357, 1366 (11th Cir. 2003) (concluding that a petitioner’s
failure to appeal an IJ’s decision to the BIA prevents this Court from reviewing the
IJ’s decision).
In this case, petitioners filed their appeal with the BIA on August 21, 2003.
Their August 21, 2003 Notice of Appeal made clear that they were appealing only
3
Because the BIA affirmed without opinion the decision of the IJ, we review the IJ’s
decision as the final agency determination. Lonyem v. United States Att’y Gen., 352 F.3d 1338,
1340 (11th Cir. 2003).
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from the IJ’s July 23, 2003 decision denying their motion to reconsider. Because
petitioners failed to appeal to the BIA the IJ’s May 8, 2003 order, we lack
jurisdiction to review that order as petitioners failed to exhaust their remedies.
Even if the petitioners’ August 21, 2003 Notice of Appeal had attempted to
appeal the IJ’s earlier May 8, 2003 decision denying their original motion to
reopen, the relevant regulations would have barred that appeal as untimely. See 8
C.F.R. § 1003.38 (b) (“The Notice of Appeal to the [BIA] shall be filed . . . within
30 calendar days after . . . the mailing of an [IJ’s] written decision.”). If petitioners
had wanted to appeal the IJ’s May 8, 2003 decision denying their original motion
to reopen, they would have had to do so by Monday, June 9, 2003, which they did
not. Accordingly, we proceed to review only the IJ’s July 23, 2003 order denying
the motion to reconsider.
B. IJ’s Denial of Motion to Reconsider
With respect to the denial of their motion to reconsider, Petitioners argue
that the IJ abused its discretion in determining that the notices sent to them were
sufficient.4 We disagree. As to Cruz-Pereira, the Immigration Court’s records
4
We review an IJ’s ruling on a motion for reconsideration only for an abuse of discretion.
Assa’ad v. United States Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003). Motions to reopen
and motions to reconsider are generally disfavored. See INS v. Doherty, 502 U.S. 314, 323, 112
S. Ct. 719, 724 (1992). In addition, where an alien has been ordered removed in absentia, an IJ
may grant a motion to reconsider only if the alien demonstrates (1) that the “failure to appear
was because of exceptional circumstance” or (2) that the alien did not receive proper notice. See
8 C.F.R. § 103.23(b)(4)(ii); see also Lonyem, 352 F.3d at 1340.
8
show that the October 10, 2002 notice changing the hearing date to February 21,
2003, was mailed to Cruz-Pereira’s correct address. Simply put, this is sufficient
notice. See Dominguez v. United States Att’y Gen., 284 F.3d 1258, 1260 (11th
Cir. 2002) (citing 8 U.S.C. § 1229(c)) (stating that written notice mailed to last
address provided by alien satisfies statutory requirements and due process, and that
“there can be an in absentia removal after such notice”). Thus, the IJ clearly did
not abuse its discretion as to Cruz-Pereira.
As to Gomez-Cruz, while the issue is somewhat different, her argument also
fails. Gomez-Cruz was under an obligation to provide an address “at which [she]
may be contacted.” 8 U.S.C. § 1229(a)(1)(F); see also Dominguez, 284 F.3d at
1260 (noting that “an alien has an affirmative duty to provide the government with
a correct address”) (emphasis added). Gomez-Cruz failed this obligation in two
aspects.5 First, the address she gave contained the wrong zip code (33023 instead
of 33025). Second, and more importantly, an alien who receives a notice to appear
with an incorrect address must notify the court of that incorrect address within five
days, and provide “written notice of an address and telephone number at which the
alien can be contacted.” 8 C.F.R. § 1003.15(d)(1). In this case, Gomez-Cruz
concedes that she received the September 5, 2002 notice setting her hearing date
5
Where an alien fails to abide by the address-reporting requirements, the immigration
statutes provide that “no written notice shall be required.” 8 U.S.C. § 1229a(b)(5)(B).
9
for May 9, 2003. That notice expressly explained Gomez-Cruz’s obligation to
inform the Immigration Court if the September 5 notice contained an incorrect
address. It is undisputed that Gomez-Cruz did not contact the Immigration Court
regarding the incorrect address. Subsequent mailings, including the crucial
October 10, 2002 notice re-setting the hearing for February 21, 2003, continued to
be sent to the same address shown on the September 5 notice. In light of Gomez-
Cruz’s admitted receipt of the September 5 notice and her failure to advise the
immigration authorities that the September 5 notice was sent to an incorrect
address, we cannot say that her due process rights were violated or that the IJ
abused its discretion when it concluded that the October 10 notice was sufficient.
Thus, mindful of the great deference we afford the BIA and IJ when
reviewing motions to reopen and motions to reconsider, we find no reversible error
with respect to Gomez-Cruz’s petition.6
III. CONCLUSION
Accordingly, to the extent the petitioners seek review of the IJ’s May 8,
2003 order, we dismiss the petition for lack of jurisdiction. To the extent the
petitioners seek review of the IJ’s July 23, 2003 order, we deny the petition.
6
The government argues that the petitioners waived any arguments with respect to the
IJ’s July 23, 2003 denial of the motion to reconsider because the petitioners did not argue that
specific ruling in their initial brief in this Court. We disagree. The substance of all of the
relevant legal issues relating to the motion to reconsider was fully briefed, and we will consider
it.
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DISMISSED, in part, and DENIED.
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