Michael Alvarado-Arenas v. Jefferson B. Sessions, III

United States Court of Appeals
For the Eighth Circuit
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No. 15-2987
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Michael Alvarado-Arenas,
lllllllllllllllllllllPetitioner,
v.
Jefferson B. Sessions, III, Attorney General of the United States,1
lllllllllllllllllllllRespondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: September 20, 2016
Filed: March 22, 2017
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Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
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COLLOTON, Circuit Judge.
Michael Alvarado-Arenas, a citizen of Mexico, was ordered removed in
absentia when he failed to appear for a removal hearing in an immigration court. He
moved to reopen the hearing, but an immigration judge denied the motion, and the
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Attorney General Sessions is automatically substituted for his predecessor
under Federal Rule of Appellate Procedure 43(c)(2).
Board of Immigration Appeals affirmed after finding no exceptional circumstances
that justified the alien’s failure to appear. We conclude that the Board did not abuse
its discretion, so we deny Alvarado-Arenas’s petition for review.
Alvarado-Arenas was admitted to the United States in 2006 on a nonimmigrant
K-1 visa that he obtained based on his engagement to marry a U.S. citizen. The
couple married that year, and Alvarado-Arenas was granted conditional permanent
resident status in 2008. After Alvarado-Arenas and his wife failed to appear at an
interview on his application to remove the conditions on his status, the Department
of Homeland Security terminated his conditional permanent resident status.
In August 2012, the Department filed a Notice to Appear charging that
Alvarado-Arenas was removable under 8 U.S.C. § 1227(a)(1)(D)(i) because his
conditional resident status was terminated. Alvarado-Arenas’s counsel appeared by
telephone at an initial removal hearing in November 2012. At that time, the
immigration judge granted Alvarado-Arenas a continuance of the removal
proceedings based on a new Form I-751 (a petition to remove conditions on
residence) that Alvarado-Arenas had filed a few weeks earlier.
The new Form I-751 listed Alvarado-Arenas’s “address” as 2917 Davenport
Avenue, Davenport, Iowa. The form also provided separate boxes for Alvarado-
Arenas to list a “mailing address,” and the word “SAME” was printed there. A
question on the form asking whether Alvarado-Arenas had lived at any other address
since becoming a permanent resident was answered in the negative. Alvarado-
Arenas’s counsel signed the names of Alvarado-Arenas and his wife at the bottom of
the Form I-751, attesting to the form’s truthfulness under penalty of perjury. Counsel
also declared that he prepared the petition at the request of his client, and that it was
based on all information of which counsel had knowledge.
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Neither Alvarado-Arenas nor his counsel appeared for the continued removal
hearing in August 2013. The immigration judge found that Alvarado-Arenas
abandoned his application for relief and ordered him removed to Mexico in absentia
under 8 U.S.C. § 1229a(b)(5)(A). On February 3, 2014, Alvarado-Arenas moved to
reopen the in absentia removal proceedings under 8 U.S.C. § 1229a(b)(5)(C), arguing
that the immigration court did not have jurisdiction to enter a removal order because
he was outside the United States during the removal proceedings. Alvarado-Arenas
later supplemented his motion with an affidavit from his wife stating that he had
traveled to Mexico in November 2009 for a family medical emergency and remained
there ever since.
An immigration judge denied the motion to reopen, and the Board affirmed.
Reopening is permitted if the alien’s failure to appear was due to “exceptional
circumstances,” see 8 U.S.C. § 1229a(b)(5)(C)(i), but the Board agreed with the
immigration judge that Alvarado-Arenas failed to establish such circumstances. The
Board also rejected Alvarado-Arenas’s contention that he was not present in the
United States when the government filed the Notice to Appear. The Board cited
statements on the Form I-751 that Alvarado-Arenas’s address was in Davenport,
Iowa, and counsel’s oral confirmation at the November 2012 hearing that Alvarado-
Arenas still lived in Davenport. The Board found that the wife’s “self-serving
affidavit” was insufficient to establish that Alvarado-Arenas was outside the country
when the removal proceedings began.
On appeal to this court, Alvarado-Arenas argues that the Board abused its
discretion in refusing to reopen the removal proceeding. By statute, an order
removing an alien in absentia for failure to appear may be rescinded only upon a
motion to reopen that shows either that (1) the alien’s failure to appear was because
of exceptional circumstances or (2) the alien did not receive proper notice of the
hearing or was in federal or state custody and his failure to appear was through no
fault of his own. 8 U.S.C. § 1229a(b)(5)(C). Exceptional circumstances “refers to
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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.” Id. § 1229a(e)(1).
In his brief on appeal, Alvarado-Arenas does not develop an argument that his
failure to appear was because of exceptional circumstances within the meaning of the
statute. He has never disputed that he received proper notice of the removal hearing
and has never alleged that he was in federal or state custody. The Board thus did not
abuse its discretion in concluding that Alvarado-Arenas failed to satisfy either of the
two statutory bases for rescission of the removal order.
Alvarado-Arenas does renew his contention that he was outside the United
States when the Department filed the Notice to Appear in his removal proceeding.
He argues that the immigration court therefore lacked jurisdiction to order his
removal. Alvarado-Arenas does not explain, however, why his whereabouts when
the Notice was filed would authorize the Board to reopen the removal proceedings
and rescind the removal order. As noted, the statute provides for rescission of an in
absentia removal order in only two circumstances. Insofar as the immigration judge
and the Board considered whether to reopen the proceedings sua sponte based on
Alvarado-Arenas’s claim that he was in Mexico throughout the proceedings, see 8
C.F.R. §§ 1003.23(b)(1), 1003.2(a), we lack jurisdiction to review the agency’s
discretionary decision. Tamenut v. Mukasey, 521 F.3d 1000, 1004-05 (8th Cir. 2008)
(en banc) (per curiam).
Assuming for the sake of analysis, however, that Alvarado-Arenas’s alleged
absence from the country could be an “exceptional circumstance” under
§ 1229a(b)(5)(C)(i), or that the agency otherwise had reviewable discretion to reopen
the proceedings on the grounds alleged, we conclude that there was no abuse of
discretion. The Board reasonably concluded that Alvarado-Arenas was in the United
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States when the Department filed the Notice to Appear to initiate the removal
proceedings in August 2012. The Form I-751 filed by Alvarado-Arenas’s counsel in
November 2012 said that it was filed at the request of Alvarado-Arenas and listed his
“address” and “mailing address” in Davenport, Iowa. The form also stated that
Alvarado-Arenas had not “resided” at any address other than the Davenport address
since he became a permanent resident. These averments supported a finding that
Alvarado-Arenas was present in the United States when the removal proceedings
commenced. The Board also reasonably gave weight to the fact that Alvarado-
Arenas’s counsel verified the accuracy of the Davenport address at a hearing in
November 2012 and made no objection to the immigration court’s jurisdiction at that
time. Alvarado-Arenas’s wife had an obvious bias that justified the Board’s
discounting the credibility of her affidavit, and Alvarado-Arenas’s effort to
characterize the Davenport location merely as a “legal residence” at which he was
never present after 2009 was doubtful enough that the Board reasonably could reject
it in favor of a more natural reading of the Form I-751.
For these reasons, the petition for review is denied. Alvarado-Arenas’s motion
to supplement the record, filed on the day before oral argument in this court, is denied
as untimely and beyond the scope of the administrative record. See 8 U.S.C.
§ 1252(b)(4)(A); Berte v. Ashcroft, 396 F.3d 993, 997 (8th Cir. 2005).
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