Damodarbhai Patel v. Eric Holder, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1423, 08-2017
DAMODARBHAI P ATEL,
Petitioner,
v.
E RIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A73-219-452
ARGUED JANUARY 28, 2009 — DECIDED APRIL 24, 2009 *
Before B AUER, RIPPLE, and TINDER, Circuit Judges.
TINDER, Circuit Judge. An immigration judge ordered
Damordabhai Patel removed in absentia after he failed to
appear at a 2001 hearing. Patel twice moved to reopen,
claiming that he never received notice of the hearing because
*
This opinion is being released in typescript. A
printed version will follow.
2 Nos. 08-1423, 08-2017
the Immigration and Naturalization Service mailed the notice
to the wrong address. The immigration judge denied the
motions, and the BIA affirmed. Patel appeals, but because he
challenges only the BIA’s discretionary decision to deny
reopening, we dismiss his petition for lack of jurisdiction.
Background
Patel, who is a citizen of India, entered the United States
without permission in 1994 and applied for asylum that same
year. In 1998, the INS attempted to set a hearing on his
asylum claim by mailing a notice to appear to his last known
address, in Blue Springs, Missouri. When Patel notified the
INS that he had changed his address, the INS sent a second
notice via certified mail to his new home in New York.
Someone (precisely who is disputed) signed the return receipt
with Patel’s surname, though the first name on the receipt is
illegible.
In November 2000, the INS mailed a third notice to appear
to Patel’s New York address, informing him that a hearing
had been scheduled for March 2, 2001. This notice was
returned as “undeliverable.” Patel did not appear at the
hearing and so the IJ ordered him removed in absentia. The
order of removal, mailed to his New York address, was also
returned as undeliverable.
In the meant ime, Patel had moved to Chicago, where, in
2007, immigration officials found and detained him. Patel,
aided by Attorney Mazher Shah Khan, promptly moved to
reopen the removal proceedings, arguing that he never
received the notice to appear. According to Patel, he had
moved to Chicago in 1998 and in early 1999 had written to
the INS to report his new mailing address. In support of this
claim, Patel submitted only a photocopied envelope addressed
to the INS and bearing a postage stamp of January 5, 1999.
The government responded that the envelope was a fake: its
postage stamp was printed using Khan’s stamp meter, which
hadn’t been installed until 2001. The government also argued
that Patel had received at least the second notice to appear,
Nos. 08-1423, 08-2017 3
since someone had signed the return receipt with his last
name.
The IJ denied the motion, finding that Patel actually
received the notice to appear at his New York address.
Although one page of the IJ’s decision is missing from the
administrative record, it is clear that the IJ was unpersuaded
by Patel’s explanation that another person with the last name
of Patel must have signed the return receipt. Even if Patel
himself had not signed the return receipt, the IJ continued,
the notice was sent shortly after Patel’s move to Chicago and
would likely have been forwarded to his new address.
Moreover, the IJ observed that Patel was required to provide
immigration authorities with his current address, and the only
evidence that he had done so—the photocopied
envelope—was fraudulent. The IJ therefore concluded that
Patel had failed to meet his burden of proof and that “the
evidence he has submitted likely is fraudulent and therefore
not worthy of belief.”
Patel, with new counsel, appealed to the Board of
Immigration Appeals. The BIA rejected Patel’s arguments,
noting that he had provided nothing beyond the fraudulent
envelope in support of his claim that he had informed the
government of his move to Chicago before the notice was
mailed.
The next day, Patel filed a second motion to recon sider and
reopen with the BIA. In support of this motion, he claimed
that the New York address used by the INS did not match his
real New York address and that he never filed a change-of-
address form with the postal service when he moved to
Chicago. He also submitted an affidavit from the New York
property’s owner, who asserted that Patel did not live there at
the time the notice was signed for. Finally, Patel contended
that Khan was ineffective because he had fabricated the
envelope that purportedly showed Patel had given
immigration author ities his Chicago address. Patel insisted
that he had no knowledge of the fake envelope because he
was in detention at the time Khan submitted it to the IJ. He
4 Nos. 08-1423, 08-2017
acknowledged, however, that while in detention he had
signed an affidavit confirming that he had mailed a change-of-
address form in the fake envelope.
The BIA denied Patel’s second motion as well. The BIA
discounted the property-owner’s affidavit, since there was no
proof that the affiant actually owned the New York property.
Moreover, the BIA noted that the affidavit reported that the
New York property was vacant from 1997 to 2000,
contradicting Patel’s claim that he lived there until December,
1998. And the BIA observed that the affidavit in which Patel
swore that he had mailed the suspect envelope belied his
claim that he had no idea it was fabricated. The BIA therefore
concluded that Patel had failed to identify any error in its first
decision and had not provided any new evidence material to
his case.
Analysis
On appeal, Patel challenges the denial of his motions to
reopen. Although the government does not press the
argument, we may reach the merits of Patel’s case only if we
have jurisdiction over his petition for review. We do not.
Claims of abuse of discretion in deciding motions to reopen
are outside our jurisdiction. See Huang v. Mukasey, 534 F.3d
618, 620 (7th Cir. 2008); Kucana v. Mukasey, 533 F.3d 534,
535-37 (7th Cir. 2008). Instead, only constitutional claims and
questions of law are reviewable on appeal. See 8 U.S.C.
§ 1252(a)(2)(D); Huang, 534 F.3d at 620. Legal questions
include challenges to the BIA’s interpretation of a statute,
regulation, or constitutional provision, claims that the BIA
misread its own precedent or applied the wrong legal
standard, or claims that the BIA failed to exercise discretion at
all. Adebowale v. Mukasey, 546 F.3d 893, 896 (7th Cir. 2008).
At issue, then, is whether either of Patel’s two challenges to
the BIA’s decision (addressed below) presents a constitutional
claim or question of law.
Patel first contends that the BIA erred in concluding that he
received actual notice of the hearing date, placing too much
Nos. 08-1423, 08-2017 5
weight on the certified mail receipt signed “Patel.” This
argument does not present a constitutional claim, since due
process does not require that the alien “actually receive”
notice of removal proceedings, but only that the government
attempt to deliver notice to the last address provided by the
alien. Joshi v. Ashcroft, 389 F.3d 732, 735 (7th Cir. 2004).
Although Patel’s brief suggests at one point that the New York
address used by the INS differed from the one that he
provided for the purpose of proper service, Patel does not
develop that claim into a due process challenge. Instead, his
brief repeatedly states that the issue in this case is whether he
“actually received” notice. Given Patel’s failure to develop a
due process argument based on lack of sufficient notice, he
has not presented a “colorable” constitutional claim. Zamora-
Mallari v. Mukasey, 514 F.3d 679, 696 (7th Cir. 2008).
Patel’s notice argument also does not present a question of
law, since actual receipt is a question of fact that weighs into
the BIA’s discretionary decision to reopen an order of
removal. Derezinski v. Mukasey, 516 F.3d 619, 621-22 (7th Cir.
2008). Rather, the BIA’s weighing of the evidence to conclude
that Patel was not entitled to reopening based on lack of
notice involves a discretionary decision that lies outside our
jurisdiction. See Kucana , 533 F.3d at 537 (concluding that a
challenge to the BIA’s determination that the petitioner’s
country conditions had not worsened to the extent of
just ifying reopening was non-reviewable); Zamora-Mallari,
514 F.3d at 696 (finding no constitutional claim in t h e
petitioner’s argument that the BIA gave insufficient weight to
his life circumstances).
But even if we had jurisdiction, Patel’s claim would fail. He
was required to keep the government apprised of his current
address—that is why the fraudulent envelope purporting to
change his address was crucial to his case. See 8 U.S.C. §
1305(a); Derezinski, 516 F.3d at 621. The government
th erefore had no reason to believe that Patel lived anywhere
other than at the New York address. As this court has
observed, “a certified mailing to an address known to be
current will ordinarily discharge the government’s duty of
6 Nos. 08-1423, 08-2017
notice.” Id.Patel next contends that, in assessing his second motion to
reopen, the BIA erred in concluding that he knew of and was
involved in Khan’s falsification of the change-of-address
envelope. This argument also fails to raise a constitutional
claim or question of law and therefore lies outside our
jurisdiction. See Jezierski v. Mukasey, 543 F.3d 886, 890 (7th
Cir. 2008) (holding that we lacked jurisdiction to review BIA’s
conclusion that lawyer was not ineffective in failing to submit
a brief to the BIA). Patel argues only that the BIA improperly
relied on his signed affidavit attesting to the validity of the
fake envelope because that affidavit, like the envelope, was
prepared by Khan while Patel was in detention. But this is,
again, a quarrel with the weight the BIA placed on the
affidavit. Patel does not point to any rule of law that required
the BIA to ignore the affidavit, nor is there any. The BIA’s
conclusion that Patel participated in his lawyer’s fraud is
therefore beyond our review. Jezierski, 543 F.3d at 890; see also
Huang, 534 F.3d at 620; Kucana , 533 F.3d at 535-37.
DISMISSED.
RIPPLE, Circuit Judge, concurring. I concur in the judgment
of the court because it is consonant with the precedent of this
circuit and therefore constitutes the applicable rule of decision
under the doctrines of stare decisis and precedent. I write
separately to suggest, respectfully, that, as our court strays
more and more from the view of the majority of circuits and
from the view of the agency charged with the administration
of the statute on an important question threatening the even-
handed application of the immigration law, the time has come
for higher appellate authority to determine whether the rest
of the Nation now should follow ou r view or whether we
should re-join the rest of the Nation. See Supreme Court Rule
10.
The central issue in this case is the interpretation of the
Nos. 08-1423, 08-2017 7
“door-closing” provision in 8 U.S.C. § 1252(a)(2)(B)(ii). That
section provides that:
no court shall have jurisdiction to review any decision or
action of the Attorney General or the Secretary of
Homeland Security the authority for which is specified
under this subchapter to be in the discretion of the Attorney
General or the Secretary of Homeland Security, other than
the granting of relief under section 1158(a) of this title. 1
This circuit initially took the position that section
1252(a)(2)(B)(ii)’s jurisdictional bar applied to challenges of
discretionary decisions only when the IJ was exercising
discretion that had been granted by st atute; we did not apply
the door-closing provision to bar jurisdiction over exercises of
discretion conferred only by regulation. See Singh v. Gonzales,
404 F.3d 1024, 1026-27 (7th Cir. 2005) (holding that section
1252(a)(2)(B)(ii) did not bar review of an IJ’s denial of a
motion to reopen immigration proceedings).
We since have reversed course, however, beginning with
our decision in Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007).
In Ali, the petitioner sought review of an IJ’s decision to deny
his motion to continue his removal proceedings, which he had
sought so that he could pursue adjustment of his immigration
status. The petitioner argued that the door-closing provision
did not divest us of jurisdiction because, by its terms, that
provision precluded review only of decisions or actions that
are committed to the Attorney General’s discretion by “this
subsection” of the statute: that is, 8 U.S.C. §§ 1151-1381. The
immigration statute makes no mention of motions to
continue; the IJ’s discretion to grant a continuance arises not
from the statute but from a regulation, 8 C.F.R. § 1003.29.
The petition argued that, therefore, the door-closing provision
1
Section 1158(a) pertains to asylum relief; it is not
implicated in this case because the IJ never made a decision
about Mr. Patel’s eligibility for asylum.
8 Nos. 08-1423, 08-2017
does not apply to review of an IJ’s decision to deny a motion
to continue. Although the Government agreed with the
petitioner’s position, we nevertheless rejected it. We reasoned
that, although the discretion to grant or deny a continuance
was not conferred by statute, the authority to do so stemmed
from 8 U.S.C. § 1229a, which “confers upon immigration
judges the authority to conduct removal proceedings.” Ali,
502 F.3d at 660. Without explicitly overruling Singh, we
concluded that this statutory nexus was sufficient to trigger
the door-closing provision. We reached this conclusion in
light of 8 U.S.C. § 1252(a)(2)(B)(i), which provides that the IJ’s
final determination on an application for adjustment of status
is unreviewable by the courts: “Adjustment of status
determinations are unreviewable under § 1252(a)(2)(B)(i); the
IJ’s continuance determination is interim to Ali’s
contemplated adjustment of status application, and interim
orders entered along the road to an unreviewable final order
are themselves unreviewable.” Ali, 502 F.3d at 661.2 In
subsequen t cases, we have extended our holding in Ali to bar
review of not only motions to continue, but also motions to
reopen. See Huang v. Mukasey, 534 F.3d 618, 620-21 (7th Cir.
2008); Kucana v. Mukasey, 533 F.3d 534, 536-39 (7th Cir.
2
One might question whether this reasoning has any
force in the context of asylum proceedings, final decisions
about which are subject to judicial review. See Kucana v.
Mukasey, 533 F.3d 534 (7th Cir. 2008) (Cudahy, J., dissenting).
Nevertheless, we subsequently have held that the door-closing
provision applies with equal force to discretionary decisions
made during asylum proceedings. See Huang v. Mukasey, 534
F.3d 618, 620-21 (7th Cir. 2008) (holding that section
1252(a)(2)(b)(ii) bars review of an IJ’s denial of a motion to
reopen asylum proceedings); Kucana , 533 F.3d at 536-39 (same).
Nos. 08-1423, 08-2017 9
2008);3 Jezierski v. Mukasey, 543 F.3d 886 (7th Cir. 2008).
Our broad interpretation of section 1252(a)(2)(B)(ii)’s scope
puts us on the distinct minority side of an intercircuit split
over the applicability of the door-closing provision to claims
challenging the exercise of discretion granted by regulation
rather than by statute. The Eighth and Tenth Circuits have
reached the same conclusion that we have in the context of a
denial of a continuance. See Yerkovich v. Ashcroft, 381 F.3d
990, 995 (10th Cir. 2004); Onyinkwa v. Ashcroft, 376 F.3d 797,
799 (8th Cir. 2004). Every other circuit, as well as the
Attorney General, has reached the opposite conclusion: that
section 1252(a)(2)(B)(ii) only bars review of decisions made in
the exercise of discretion conferred by statute--specifically 8
U.S.C. §§ 1151-1381. See Lendo v. Gonzales, 493 F.3d 439, 441
n.1 (4th Cir. 2007); Alsamhouri v. Gonzales, 484 F.3d 117, 122
(1st Cir. 2007); Zafar v. Att'y Gen., 461 F.3d 1357, 1360-62
(11th Cir. 2006); Khan v. Att'y Gen., 448 F.3d 226, 232-33 (3d
Cir. 2006); Ahmed v. Gonzales, 447 F.3d 433, 436-37 (5th Cir.
2006); Sanusi v. Gonzales, 445 F.3d 193, 198-99 (2d Cir. 2006);
Abu-Khaliel v. Gonzales, 436 F.3d 627, 633-34 (6th Cir. 2006);
Medina-Morales v. Ashcroft, 371 F.3d 520, 528-29 (9th Cir.
2004). The majority of circuits read section 1252(a)(2)(B)(ii) to
bar review only where both the authority and the discretion
to make the decision were granted by statute. Hence, these
eight circuits, and the Attorney General, have concluded that
the courts do have the authority to review decisions on
motions to continue and motions to reopen, because the
discretion to grant or deny them is conferred not by statute
but by regulation.
Notably, no other circu it has determined, as we did in
Kucana , that section 1252(a)(2)(B)(ii) is a bar to our review of
the denial of a motion to reopen in an asylum case where the
3
In Kucana , we finally did overrule Singh explicitly, in
part because we recognized that its holding was “not tenable”
after our decision in Ali. Kucana , 533 F.3d at 537-38.
10 Nos. 08-1423, 08-2017
decision affects the alien’s right to review of substantive
decisions of the Board of Immigration Appeals that are based
on a mistake or misunderstanding of the factual basis of a
claim--decisions that the Supr eme Court has analogized to
motions under Rule 60 of the Federal Rules of Civil
Procedure. See Stone v. INS, 514 U.S. 386, 401 (1995); see also
Kucana , 533 F.3d 534, 539-40 (Ripple, J., concurring
dubitante). In fact, even the Tenth Circuit, which agrees with
us that motions to continue are not reviewable, has drawn the
line at motions to reopen. See Ntiri v. Gonzales, 227 Fed.
Appx. 749, 752 (10th Cir. 2007) (“We have jurisdiction to
review the denial of a motion to reopen, at least where judicial
review of the underlying order is not precluded.” (citing
Infanzon v. Ashcroft, 386 F.3d 1359, 1361-62 (10th Cir. 2004))).
The immigration laws of the United States should be
administered even-handedly across the entire Nation. No
attribute of sovereignty rests in a federal circuit to go its own
way and subject individuals to treatment different from what
they would receive from the United States Government in any
other part of the Country. This principle is especially true in
areas such as immigration and asylum law where decisions of
the administrative process affect so drastically the course of
the human lives impacted by the decision. I respectfully
suggest that the holdings of Ali and its progeny should be re-
examined before their dominion is spread even further afield.
Turning briefly to the facts of this case, I believe that Mr.
Patel preserved his due process claim, which we have
j urisdiction to hear because it is a constitutional claim. 8
U.S.C. § 1252(a)(2)(D); see also Jezier s k i, 543 F.3d at 890(noting that a claim alleging insufficient notice in violation of
due process would be reviewable by this court). However,
because the IJ determined, as a matter of fact, that the
Government had in fact sent the notice to the address
supplied by Mr. Patel and since there was sufficient evidence
to support that determination, I do not believe that this
contention can survive the deferential review that we owe the
Nos. 08-1423, 08-2017 11
IJ on such a fact-bound conclusion. 4 Accordingly, I would
deny Mr. Patel’s petition on the merits rather than dismiss it
for lack of jurisdiction.
4
Among other things, the IJ noted that Mr. Patel
admitted in his first motion to reopen that he lived at “4
Wedgewood Lane, Miller Place, Long Island City, NY 11764,
until December 31, 1998.” A.R. 135. This was the address to
which the notice was sent. This admission contradicts Mr.
Patel’s argument before the BIA and before this court that he
never lived in Long Island City. The IJ also found that a
return receipt for the notice was signed by someone with the
surname Patel.
As for Mr. Patel’s claim that he submitted a change-of-
address form to the INS when he moved to Chicago in 1999,
the IJ’s decision to disbelieve it is also supported by substantial
evidence. The only proof that Mr. Patel provided to show that
he submitted the form was his own affidavit and a photocopy
of a postmarked envelope, which he later admitted was forged.
The IJ acted reasonably in finding that Mr. Patel had
fabricated this claim.
In short, the evidence in the record supports the IJ’s
finding that proper notice was mailed to the last address that
Mr. Patel provided. This is all that due process requires. Joshi
v. Ashcroft, 389 F.3d 732, 736 (7th Cir. 2004).