Interiano De Rivas v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 26, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60625
Summary Calendar
ANA GLADIS INTERIANO DE RIVAS,
Petitioner,
versus
ALBERTO R. GONZALES,
U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A70 873 670
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ana Gladis Interiano Rivas (Rivas) moved to reopen November 1994 removal proceedings
in which she was deported in absentia. The Board of Immigration Appeals (“BIA”) summarily
affirmed the decision of the Immigration Judge (IJ) that denied her motion. Rivas petitions this court
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
for review of the BIA’s denial of her motion to reconsider its decision. For the following reasons,
the petition is denied.
I. FACTUAL AND PROCEDURAL HISTORY
The following facts are undisputed. On June 19, 1994, seventeen year old Rivas entered the
United States by wading through the Rio Grande. According to her affidavit, she was detained and
transported to Laredo, Texas. When questioned, she indicated she was a native and citizen of El
Salvador en route to be with her husband in Washington, D.C. The next day, Rivas was personally
served with an Order to Show Cause (OSC) that charged her with entering without inspection, then
released on her own recognizance.
Two notices of a deportation hearing in San Antonio, Texas, were sent via certified mail to
the Washington, D.C., address Rivas had provided. The first certificate of receipt was signed by Julio
Cruz on or about July 25, 1994; the second notice rescheduled the master hearing from October 5,
1994, to November 2, 1994, but was returned in September 1994 unclaimed after attempted delivery.
On November 2, 1994, the IJ determined that Rivas was provided notice of the time and place of the
proceeding by written notice by certified mail at the most recent address contained in the record of
proceeding, and held the hearing in absentia. At the conclusion of the in absentia hearing, the IJ
ordered that Rivas be deported to El Salvador.
Approximately four years later, pursuant to Immigration and Nationality Act § 245, 8 U.S.C.
§ 1255, Rivas applied in December 1998 for an adjustment of her status as a dependent of a principal
alien. Her husband, Omar De Jesus Rivas, had applied for permanent resident status. His application
was granted in September 2000. Through the application process, Rivas learned that she had been
deported in absentia in 1994.
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On or about November 1, 2002, Rivas filed a motion to reopen her deportation proceedings
and to change the venue to Baltimore, Maryland. The motion asserted that she had not received
notice of the November 2, 1994, hearing as evidenced by the fact that the notice sent to her was
returned unclaimed. The motion also asserted that she has since become eligible to adjust her status
as the derivative beneficiary of her husband. Rivas’s motion noted that (1) her application to adjust
status (Form I-485) was denied because of the November 2, 1994 in absentia deportation; (2) she was
unaware of the deportation order when she filed the Form I-485; and (3) her counsel only recently
received a copy of that order and underlying file, which had a different “A” number than on her Form
I-485.
Attached to Rivas’s motion to reopen was a copy of the return receipt showing that the
August 31, 1994, notice to appear had been returned unclaimed. Also included was documentation
indicating that she had become eligible for adjustment of status in 1998: approval of her husband’s
application for adjustment of status as an I485 permanent resident and as a I140 skilled worker or
professional, along with Rivas’s November-December 1998 application for adjustment of status and
their January 17, 1991 marriage certificate.
In an opinion dated November 6, 2002, the IJ noted that Rivas argued that she and her
husband moved in July 1994 and that she notified the immigration review office in San Antonio,
Texas, of her address change. The IJ also noted, inter alia, that the OSC advised Rivas, in Spanish
and English, of her obligation to file written notice with the office of the Immigration Judge listed in
the OSC within five days of any address or telephone number change. The IJ recalled its November
2, 1994, finding that Rivas was provided notice of the time and place of the proceeding by written
notice by certified mail at the most recent address, and concluded that notice to Rivas was legally
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sufficient. The IJ further concluded that Rivas did not demonstrate that she failed to appear due to
exceptional circumstances.
On appeal to the BIA, Rivas also presented an affidavit “in support of [her] motion to reopen
deportation proceedings, so that [she] may apply for lawful permanent resident status as a derivative
beneficiary of [her] husband, a lawful permanent resident.” The affidavit stated that the officer who
interrogated her when she was detained in 1994 “did not speak Spanish like a native speaker, and it
was not easy to understand him.” Moreover, the affidavit stated that the officer filled out some papers
and gave them to her to sign, but did not read the papers to her in English or Spanish, and did not
explain them. According to Rivas’s affidavit, “the officer just put the papers in front of [her] and
ordered [her], ‘Sign here, sign here, sign here.’” The affidavit also states that, upon release from the
San Antonio INS office, she flew to Washington, D.C., to live with her husband; after about two
weeks, they moved to Silver Spring, Maryland and provided a change of address to the U.S. Postal
Service. The BIA affirmed the IJ’s decision without opinion.
Rivas filed a motion to reconsider. On August 26, 2004, the BIA filed an order that stated
“We have reviewed the arguments made by [Rivas] in her motion and note that we considered these
arguments before rendering a decision in this case. We decline to revisit them. Accordingly, the
motion is denied.” The BIA’s decision was reissued on June 29, 2004, due to an error in notice to
Rivas’s counsel. Rivas timely petitions this court for review of the reissued BIA decision, asserting
that the BIA abused its discretion by denying the motion to reconsider and by failing to remand the
case for the IJ to resolve factual disputes about the returned notice.
II. STANDARD OF REVIEW
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The BIA’s denial of a motion to reopen or to reconsider is reviewed under a highly deferential
abuse-of-discretion standard. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005) (citing Lara v.
Trominski, 216 F.3d 487, 496 (5th Cir. 2000)). Under this standard, we must affirm the Board’s
decision as 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.” Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (quoting Zhao, 404 F.3d at 304)).
“Motions to reopen deportation proceedings are disfavored, and the moving party bears a heavy
burden.” Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549 (5th Cir. 2006) (citation and internal
quotation marks omitted).
Our review of constitutional challenges is de novo. Id. (citing Soadjede v. Ashcroft, 324 F.3d
830, 831 (5th Cir. 2003)). Likewise, we review de novo the BIA’s legal conclusions. Singh, 436 F.3d
at 487. “Nevertheless, a legal conclusion that embodies the Board’s interpretation of an ambiguous
provision of a statute it administers is entitled to the deference prescribed by Chevron U.S.A. Inc. v.
Natural Resource Defense Council, 467 U.S. 837 (1984).” Id. (citing Ruiz-Romero v. Reno, 205 F.3d
837, 838 (5th Cir. 2000)). Similar deference is owed to the Board’s interpretations of its own
regulations. Id.
The BIA’s decision on appeal and reconsideration summarily affirmed the IJ’s denial of the
motion to reopen. When, as here, the BIA essentially adopts the IJ’s decision and does not add
reasoning of its own, we review the IJ’s decision. Williams-Igwonobe v. Gonzales, 437 F.3d 453, 455
(5th Cir. 2006) (citing Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.1997)).
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III. DISCUSSION
Petitioner, Ana Gladis Interiano Rivas, seeks a remand to the IJ in order to present evidence
that she did not receive oral notice of her rights and obligations pursuant to the June 20, 1994, OSC
so that she may pursue an adjustment of status. She argues that her motion to reopen is not untimely
because she did not receive notice of the November 2, 1994, master hearing that resulted in her in
absentia deportation. The reasons for her failure to appear are that (1) having moved in mid-July
1994, she did not receive the notice and therefore did not know about the master hearing, and (2) she
had not been orally advised of the requirement that she notify the immigration court of any address
change.
A. Denial of the Motion to Reopen
In 1994, the relevant notice provisions of the Immigration and Naturalization Act, as amended
by the Immigration Act of 1990 (INA), required that Rivas be given written notice either in person
or by certified mail of the time and place of the proceedings and of the new time or place of
rescheduled proceedings. 8 U.S.C. §1252b(a)(2)(A) (1994), repealed by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), § 308(b)(6), Pub.L. 104-208, 110 Stat.
3009 (Sept. 30, 1996). This notice was to be given “in the OSC or otherwise,” and was to include
notice of certain consequences of the failure, except under exceptional circumstances, to appear at
such proceedings.1 Id.
1
The consequences that had to be included in the notice included: deportation in absentia; no
requirement that she be given notice if she did not provide an address or written record of any change
of address; certain limitations upon when and how the in absentia order may be rescinded; and
ineligibility for certain discretionary relief for a period of five years if she had been orally notified of
the time and place of the proceedings and of the consequences of failure to appear for other than
exceptional circumstances. 8 U.S.C. §1252b(c)(1)-(3), (e)(1) (1994), repealed by the IIRIRA, §
308(b)(6), Pub.L. 104-208, 110 Stat. 3009 (Sept. 30, 1996).
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A motion to reopen seeks consideration of newly discovered facts and is supported by
affidavits or other evidentiary material. 8 U.S.C. § 1229(a)(c)(7). A motion to reopen may also
“solicit[] an opportunity to apply for discretionary relief.” Panjwani v. Gonzales, 401 F.3d 626, 628
n.4 (5th Cir. 2005) (quotation marks and alterations omitted) (quoting Goonsuwan v. Ashcroft, 252
F.3d 383, 386 (5th Cir. 2001)). In contrast, a motion to reconsider deals with errors of fact or law
and is supported by pertinent authority. 8 U.S.C. § 1229a(c)(6) (2000); 8 C.F.R. § 1003.2(b)(1)
(2002).
The administrative record reveals that Rivas was notified, as required, of her obligations and
the consequences of failure to perform them, and that notice of the November 2, 1994, hearing was
sent by certified mail to the last address she had provided.
In cases where service of a notice of a deportation proceeding is sent by
certified mail through the United States Postal Service and there is proof of attempted
delivery and notification of certified mail, a strong presumption of effective service
arises which only may be overcome by the affirmative defense of nondelivery or
improper delivery by the Postal Service.
In re Grijalva, 21 I. & N. Dec. 27 (1995); see also Ghounem v. Ashcroft, 378 F.3d 740, 744 (8th Cir.
2004) (noting that in Grijalva the BIA found that a “strong presumption of effective service” arises
when the Office of the Immigration Judge sends notice by certified mail).
Rivas asked the IJ to reopen proceedings, and later requested that the BIA remand her case
to the IJ, in order to present evidence about the absence of oral notice and to address the merits of
her eligibility for adjustment of status. Other than the return receipt showing that the notice sent to
the address she provided was returned unclaimed, the documentation presented to the IJ related to
her eligibility for adjustment of status. Rivas presented no affidavit or other evidentiary material to
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rebut the strong presumption of effective service of the Notice of Hearing. On this record, we find
no error of law or fact in the finding, adopted by the BIA, that notice to Rivas of the November 2,
1994, hearing was legally sufficient.
Rivas is only entitled to file a motion to reopen her in absentia deportation proceedings to
rescind the deportation order “at any time” if she demonstrates that notice of the proceeding was
legally insufficient. 8 U.S.C. § 1229a(b)(5)(C)(ii). Otherwise, her motion to reopen must be filed
within 180 days of the 1994 final administrative deportation order. 8 U.S.C. § 1229a(b)(5)(C)(i),
(c)(6)(C)(iii) (2000). The instant motion was filed years after the 180 day period applicable to non-
rescission motions to reopen in absentia deportation proceedings. As discussed above, there was no
demonstration that the notice was legally insufficient. Therefore, Rivas’s motion to reopen for
consideration of her eligibility for adjustment of status was filed untimely. Moreover, even if the
motion had been filed timely, the IJ “has discretion to deny a motion to reopen even if the moving
party has established a prima facie case for relief.” 8 C.F.R. § 1003.23(b)(3) (2002). For these
reasons, we find no abuse of discretion in the BIA’s ruling that upheld its decision to affirm the IJ’s
order, even though there was no mention of Rivas’s eligibility for adjustment of status.
B. Fifth Amendment Due Process
Rivas also contends that the decisions of the BIA and IJ violated her Fifth Amendment right
to due process. It is well settled that a denial of discretionary relief does not rise to the level of a
constitutional violation even if Rivas had been eligible for it. Finlay v. INS, 210 F.3d 556, 557 (5th
Cir. 2000); Altamirano-Lopez, 435 F.3d at 550; see also, Assaad v. Ashcroft, 378 F.3d 471, 475 (5th
Cir. 2004) (“[Petitioner’s] motion to reopen does not allege a violation of his Fifth Amendment right
to due process because ‘the failure to receive relief that is purely discretionary in nature does not
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amount to a deprivation of a liberty interest.’”); Nguyen v. Dist. Dir., Bureau of Immigration &
Customs Enforcement, 400 F.3d 255, 259 (5th Cir. 2005) (“the denial of the possibility of
discretionary relief from removal does not threaten [an alien]’s constitutional right to due process.”).
Without regard to the basis of her motion to reopen, the decision whether to grant the motion was
purely discretionary. Zhao, 404 F.3d at 303; INS v. Doherty, 502 U.S. 314, 323 (1992). Therefore,
denial of this discretionary relief neither violates Rivas’s due process rights nor provides a basis to
reverse the BIA’s denial of the motion for reconsideration.
IV. CONCLUSION
Our review of the BIA’s denial of Rivas’s motion for reconsideration reveals no error.
Therefore, we conclude that the BIA did not abuse its discretion to deny the motion to reconsider.
Accordingly, we DENY Rivas’s petition for review.
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