Mary Wangeci v. Eric Holder, Jr.

Case: 13-60569 Document: 00512758741 Page: 1 Date Filed: 09/05/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60569 United States Court of Appeals
Fifth Circuit
FILED
MARY CAROLINE WANGECI, September 5, 2014
Lyle W. Cayce
Petitioner, Clerk
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A029 998 571
Before STEWART, Chief Judge, and OWEN, Circuit Judge, and MORGAN ∗,
District Judge.
PER CURIAM:*
Petitioner Mary Caroline Wangeci seeks review of a decision of the Board
of Immigration Appeals (BIA) affirming the Immigration Judge’s (IJ) denial of
her motion to reconsider and dismissing her appeal. For the reasons stated
herein, the petition is denied.
∗
District Judge for the Eastern District of Louisiana, sitting by designation.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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FACTS & PROCEDURAL HISTORY
Wangeci, a native and citizen of Kenya, entered the United States on
November 26, 1992, with authorization to stay in the United States until May
23, 1993. She enrolled in Del Rio High School without authorization from the
Immigration and Naturalization Service (INS), now the Department of
Homeland Security (DHS). On May 14, 1993, INS apprehended Wangeci with
her mother at 102 Peacepipe, Del Rio, Texas 78840. She was served with an
Order to Show Cause (OSC) and provided with a Notice of Rights which
advised her of her right to a hearing before an IJ. She signed documentation
requesting a hearing before an IJ, provided that her address was 102
Peacepipe, Del Rio, Texas, and was released on her own recognizance. On May
20, 1993, INS issued a superseding OSC, which charged Wangeci as deportable
for failing to maintain or comply with the conditions of her nonimmigrant
status. The superseding OSC was sent to Wangeci at the address she
provided102 Peacepipe, Del Rio, Texasvia certified mail, return receipt
requested, and was delivered to that address and signed for on May 25, 1993.
The superseding OSC noted that the immigration court would send Wangeci a
hearing notice at the address she had provided and advised her to provide
written notice of any change of address, warning her that if she did not appear
at her scheduled deportation hearing, she would be ordered deported in
absentia if it was established that she was deportable. In July 1993, the
immigration court attempted three times to send Wangeci a hearing notice at
the Peacepipe address, via certified mail, stating that her immigration court
hearing would be held on August 26, 1993. The hearing notice was returned
marked as “Unclaimed.”
Wangeci did not appear for the August 26th hearing. The IJ found that
Wangeci was deportable as charged and that her failure to appear constituted
a waiver and abandonment of any application for relief from deportation. The
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IJ ordered Wangeci deported in absentia and the deportation order was mailed
to her at the Peacepipe address.
On March 5, 2010, over 16 years after she was ordered deported,
Wangeci, through counsel, filed a motion to reopen, alleging that she had not
received proper notice of the hearing. The motion asserted that Wangeci
entered the United States in May 1993 1 and that her United States citizen
step-father, Richard Coffie, filed a visa petition on her behalf later that year.
Wangeci’s mother then separated from Coffie, however, and Wangeci and her
mother moved out of Coffie’s home. Thereafter, Coffie withdrew the visa
petition before it was adjudicated, unbeknownst to Wangeci. The motion went
on to state that Wangeci married a United States citizen in October 2009 and
then filed for an adjustment of status on the basis of her marriage. 2 In
February 2010, Wangeci attended an interview in Atlanta, Georgia, in
connection with the I-130 petition filed by her husband and was taken into
custody by U.S. Immigration and Customs Enforcement (ICE) at that time. 3
The motion and Wangeci’s affidavit alleged that she did not receive an OSC or
notice of her immigration hearing and suggested that the documents may have
been lost in the mail. Additionally, in her response to DHS’s brief in opposition
to her motion to reopen, Wangeci alleged that she was 16 years old at the time
of her INS arrest and that because she was a minor, notice should have been
served upon her and an adult with custody of her.
1 This date conflicts with the date provided in Wangeci’s brief on appealNovember
26, 1992.
2 Respondent submits that Wangeci was not eligible to adjust her status on the basis
of her marriage because the United States Citizenship and Immigration Service “denied the
relative petition because they believed [Wangeci] entered into a marriage for immigration
benefits.”
3 According to Wangeci’s petition for review, the marriage has since “broken up.”
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On April 12, 2010, the IJ denied Wangeci’s motion to reopen. The IJ
noted that on May 25, 1993, INS sent Wangeci the superseding OSC by
certified mail to the address she provided and that the record contained a copy
of the signed return receipt card which indicated that the OSC was received at
its intended destination. The IJ also noted that delivery of Wangeci’s hearing
notice was attempted three times in July 1993 via certified mail but was
returned to the immigration court marked “Unclaimed.” The IJ ultimately
concluded that service of the OSC and hearing notice by certified mail was
proper, Wangeci did not “overcome th[e] strong presumption” of effective
service, and she gave “no explanation as to why she failed to contact the court
to determine the status of her immigration proceedings until more than sixteen
and a half years after the deportation order was issued.”
On May 12, 2010, Wangeci filed a motion to reconsider the denial of her
motion to reopen. The motion alleged that shortly after she was apprehended
by INS in May 1993, she and her mother moved to Georgia. In doing so, she
did not understand her obligation to file a change of address form and did not
receive the hearing notice that was allegedly sent to her step-father’s home at
the Peacepipe address. On June 11, 2010, the IJ denied Wangeci’s motion to
reconsider.
On July 1, 2010, Wangeci appealed the IJ’s decision to the BIA where
she argued, inter alia, that the IJ relied on erroneous information in the INS
Form I-213 provided by DHS, which indicated that she was 18 years old when
arrested by INS rather than 16 years old. She complained that her former
counsel was ineffective because she failed to rebut the issue of her incorrect
age contained in the I-213 form. Wangeci submitted a copy of her birth
certificate and a statement from her former counsel indicating that she
inadvertently did not provide a copy of Wangeci’s passport biographic page to
the IJ. On April 20, 2011, the BIA remanded the case to the immigration court
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for consideration of the additional evidence of Wangeci’s age when arrested
and served the OSC.
In a decision issued August 15, 2012, the IJ concluded that Wangeci
received proper notice of her 1993 deportation hearing and again denied
reconsideration of the denial of reopening. Citing to In re Grijalva, 21 I. & N.
Dec. 27, 32 (BIA 1995), the IJ noted that an OSC “must be served in person or
where personal service is not practicable, by certified mail with return receipt
signed by the [alien] or a responsible person at the [alien’s] address.” The IJ
observed that the regulations in 1993 provided that service on a minor under
age 14 must be made on a responsible adult. See 8 C.F.R. § 103.5a(c)(2)(ii)
(1993). The IJ found that Wangeci was 16 years old at the time the OSC was
served, and because she was at least 14, “service of the OSC on her was proper”
under the regulations in effect at the time as well as this court’s precedent. See
Lopez-Dubon v. Holder, 609 F.3d 642, 646 (5th Cir. 2010). The IJ also
determined that the record established that the OSC was properly served on
Wangeci because it was sent via certified mail and a signed return receipt
indicated that the postal service successfully delivered the OSC at the address
Wangeci provided.
The IJ rejected Wangeci’s claim that she did not know she had to appear
before the immigration court, noting that she signed forms requesting a
hearing before an IJ which showed that she “was aware of her deportation
proceedings.” The IJ rejected Wangeci’s claim of lack of notice of her
immigration court hearing because (1) her hearing notice was sent to her “by
certified mail at the address [] listed on her OSC, the address at which the OSC
was successfully delivered”; (2) the postal service attempted delivery of the
hearing notice three times before returning the notice, marked “unclaimed”;
and (3) Wangeci admitted that she moved to Georgia shortly after her INS
arrest but never provided her new address. Finally, the IJ noted that the OSC
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“notified [Wangeci] of her obligation to notify the Court of her address and the
consequences of failing to do so.”
Wangeci again appealed the IJ’s decision to the BIA. On July 22, 2013,
the BIA issued its decision. Referencing portions of the IJ’s decision, the BIA
concluded that Wangeci was properly served with an OSC, both in person and
“through delivery of the certified letter by the United States Postal Service.”
The BIA also determined that the Government properly served Wangeci with
the OSC as she was 16 years old at the time of service. Finally, the BIA noted
that the immigration court attempted three times to provide Wangeci with a
hearing notice via certified mail. The BIA dismissed the appeal, affirming the
IJ’s decision denying Wangeci’s motion to reconsider the denial of her motion
to reopen. Wangeci filed a timely petition for review with this court. 4
STANDARD OF REVIEW
We review decisions of the BIA and only consider the rulings and
findings of the IJ if they impact the BIA’s decision. Efe v. Ashcroft, 293 F.3d
899, 903 (5th Cir. 2002). To the extent that the BIA’s decision relied on the
IJ’s findings and conclusions, the IJ’s findings are reviewable. Id.
A motion to reconsider “shall specify the errors of law or fact in the
previous order and shall be supported by pertinent authority.” 8 U.S.C.
§ 1229a(c)(6)(C). We review the denial of a motion to reopen or to reconsider
“under a highly deferential abuse-of-discretion standard.” Zhao v. Gonzales,
404 F.3d 295, 303 (5th Cir. 2005). The decision will be upheld “so long as it is
not capricious, racially invidious, utterly without foundation in the evidence,
or otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach.” Id. at 304 (citation omitted).
4 On August 29, 2013, this court denied Wangeci’s Motion for Stay of Deportation
pending review.
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We will “review the BIA’s decision ‘procedurally’ to ensure that the
complaining alien has received full and fair consideration of all circumstances
that give rise to his or her claims.” Abdel-Masieh v. INS, 73 F.3d 579, 585 (5th
Cir. 1996) (internal quotation marks and citation omitted). The BIA is not
required to “address evidentiary minutiae or write a lengthy exegesis.” Id.
(citation omitted). The BIA must “consider the issues raised, and announce its
decision in terms sufficient to enable a reviewing court to perceive that it has
heard and thought and not merely reacted.” Efe, 293 F.3d at 908 (internal
quotation marks and citation omitted).
DISCUSSION
Wangeci’s primary argument on appeal is that the BIA erred in affirming
the IJ’s decision denying her motion to reconsider without providing any
analysis in support of its decision, making judicial review of that decision
impossible. Wangeci additionally contends that the BIA’s alleged failure to
provide an analysis makes it impossible for this court to determine whether
she can be charged with receiving the hearing notice. Wangeci submits that
she is entitled to “an act of lenity and discretion” because she was 16 years old
when she was initially apprehended, her mother was in a bad relationship at
the time, she has lived in the United States since 1993, and she is not a fugitive
hiding from her past. We are unpersuaded by these arguments.
Under the rules applicable to immigration cases commenced prior to
September 30, 1996, in absentia deportation orders may be rescinded only if
the alien files a motion to reopen within 180 days after the date of the order of
deportation showing exceptional circumstances for her failure to appear or at
any time if the alien files a motion to reopen demonstrating that she did not
receive notice of the hearing. 8 U.S.C. § 1252b(c)(3) (West 1993) (repealed Sept.
30, 1996); see also Ojeda-Calderon v. Holder, 726 F.3d 669, 673 (5th Cir. 2013)
(“Because Ojeda’s immigration proceedings were initiated prior to the 1996
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amendments to the INA, we must apply the notice requirements set forth in
former INA § 242B.”).
A. Service of the Order to Show Cause
Wangeci contends that the BIA’s decision fails to specify “whether the
[BIA] found the service was proper due to the alleged personal delivery of an
OSC on May 14, 1993 or whether it was due to the second OSC being sent
through certified mail to the Peacepipe address.” She also asserts that it is
unclear whether the BIA applied proof-of-service standards in effect in 1993 or
2010. She further contends that there is no evidence in the record regarding
why the OSC needed to be superseded or evidence indicating who signed the
return receipt slip at the Peacepipe address.
Applying the notice requirements effective in 1993 set forth in former
INA § 242B(a)(1), “service of the Order to Show Cause must be given in person
to the alien.” Grijalva, 21 I. & N. Dec. at 32. “If personal service is not
practicable, such notice must be given by certified mail to the alien or to his
counsel of record, if any, with the requirement that the certified mail receipt
be signed by the respondent or a responsible person at the respondent’s
address to accomplish personal service.” Id.
“[W]hen notice is sent by certified mail, there is a strong presumption of
effective service.” Ojeda-Calderon, 726 F.3d at 673 (citing Grijalva, 21 I. & N.
Dec. at 37). “To overcome that presumption the alien must present substantial
and probative evidence such as documentary evidence from the Postal Service,
third party affidavits, or other similar evidence demonstrating that there was
improper delivery or nondelivery.” Id. (internal quotation marks and citation
omitted). It is not a requirement “that the certified mail return receipt be
signed by the alien . . . to effect service.” Id. (internal quotation marks and
citation omitted).
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The regulations in effect in 1993 also contained special provisions for
service of an OSC on a minor under 14 years of age. See 8 C.F.R. §
103.5a(c)(2)(ii)(1993).
The BIA’s decision reflects that it determined that Wangeci was served
with the initial OSC in person and properly served with the superseding OSC
via certified mail. These findings are supported by the record which contains
a Notice of Rights and request for a hearing signed by Wangeci on the day she
was apprehended by the INS and personally served with the initial OSCMay
14, 1993as well as a signed certified returned mail receipt indicating that
the superseding OSC was delivered to Wangeci’s address and signed for on
May 25, 1993. 5
In conclusion, we hold that Wangeci was properly served with the initial
and superseding orders to show cause and thus the IJ properly denied
Wangeci’s motion to reconsider its denial of the motion to reopen. Grijalva, 21
I. & N. Dec. at 32; Ojeda-Calderon, 726 F.3d at 673; Efe, 293 F.3d at 903; Lopez-
Dubon, 609 F.3d at 647. Consequently we hold that the BIA did not abuse its
discretion in affirming the IJ’s denial of Wangeci’s motion to reconsider, see
Zhao, 404 F.3d at 303-04, and adequately conveyed its reasoning in doing so.
See Efe, 293 F.3d at 908 (citation omitted). 6
B. Service of the Hearing Notice
5 Moreover, we agree with the BIA’s determination that the Government properly
served Wangeci with these documents, as she was 16 years old at the time of service. Lopez-
Dubon v. Holder, 609 F.3d 642, 646 (5th Cir. 2010) (affirming the BIA’s holding that notice
must be served on an adult only for aliens under 14 years of age).
6 Wangeci’s petition for review does not adequately brief the following arguments: (1)
that it was unclear whether the BIA applied the OSC proof-of-service standards in effect in
1993 or 2010; (2) that there is no evidence in the record regarding why the OSC needed to be
superseded; and (3) that there is no evidence in the record indicating who signed the certified
mail return receipt for the superseding OSC delivered on May 25, 1993. Consequently, we
hold that Wangeci has abandoned her argument on these issues. See Soadjede v. Ashcroft,
324 F.3d 830, 833 (5th Cir. 2003).
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Wangeci further asserts that the evidence of the three failed attempts to
deliver the hearing notice was proof that she was not notified of the date, time,
or place of her hearing in immigration court.
The INS was required to provide written notice of the deportation
hearing “in person to the alien (or, if personal service is not practicable, written
notice shall be given by certified mail to the alien or to the alien’s counsel of
record, if any).” 8 U.S.C. § 1252b(a)(2)(A) (West 1993) (repealed). The written
notice “shall be considered sufficient . . . if provided at the most recent address
provided” by the alien. Id. at § 1252b(c)(1). “An alien is entitled to written
notice of immigration proceedings against him, but an alien is responsible for
updating immigration authorities with his current address.” Lopez-Dubon,
609 F.3d at 647 (citing Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir.
2009)). “Thus an order of removal will not be set aside, even if the alien did
not receive notice, if ‘the alien’s failure to receive actual notice was due to his
neglect of his obligation to keep the immigration court apprised of his current
mailing address.’” Id. (quoting Gomez-Palacios, 560 F.3d at 360).
The BIA’s decision observed that the immigration court attempted to
provide Wangeci with a hearing notice, but after attempting to deliver the
document three times, the United States Postal Service returned the notice to
the court. The record supports this finding as it contains the certified mail
envelope with the hearing notice which was returned to the immigration court
with notations of three delivery attempts in July 1993. The record also
supports the finding that on May 14, 1993, when she was apprehended,
Wangeci provided INS with the Peacepipe address to which the hearing notice
was sent. The superseding OSC that was delivered and signed for on May 25,
1993, via certified mail to the Peacepipe address stated in pertinent part:
You are required by law to provide immediately in writing an
address (and telephone number, if any) where you can be
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contacted. You are required to provide written notice, within five
(5) days, of any change in your address or telephone number to the
office of the Immigration Judge listed in this notice. Any notices
will be mailed only to the last address provided by you. . . . If you
fail to appear at the scheduled deportation 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.
Accordingly, the evidence in the record indicates that Wangeci was notified
that she was required to provide her updated address to the immigration court
so that she could be kept informed of her immigration proceedings. She failed
to do so however, and as she has conceded, moved to Georgia shortly after she
was apprehended in May 1993 without notifying the immigration court.
Moreover, she refrained from contacting the immigration court altogether for
the next 16 years until she attempted to apply for immigration benefits again
in 2010.
In light of these facts, we hold that the hearing notice requirement was
satisfied and thus the IJ properly denied Wangeci’s motion to reconsider its
denial of the motion to reopen. Ojeda-Calderon, 726 F.3d at 673; Efe, 293 F.3d
at 903; Lopez-Dubon, 609 F.3d at 647. Consequently, we conclude that the BIA
did not abuse its discretion in affirming the IJ’s denial of Wangeci’s motion to
reconsider, see Zhao, 404 F.3d at 303-04, and adequately conveyed its
reasoning in doing so. See Efe, 293 F.3d at 908 (internal quotation marks and
citation omitted).
CONCLUSION
The petition for review is DENIED.
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