                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-15-2005

Fajardo-Lazil v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3246




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"Fajardo-Lazil v. Atty Gen USA" (2005). 2005 Decisions. Paper 107.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/107


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                 NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT

                                        NO. 05-3246
                                     ________________

                                  JOSE FAJARDO-LAZIL,
                                                  Petitioner
                                           v.

                  ATTORNEY GENERAL OF THE UNITED STATES,
                                                           Respondent
                    _______________________________________

                          On Petition for Review of a Decision of the
                               Board of Immigration Appeals
                                  (Agency No. A30 143 202)
                        _______________________________________

                         Submitted Under Third Circuit L.A.R. 34.1(a)
                                    December 14, 2005

       Before: SLOVITER, SMITH AND VAN ANTWERPEN, CIRCUIT JUDGES
                           (Filed December 15, 2005)
                           _______________________

                                        OPINION
                                 _______________________

PER CURIAM

       Jose Fajardo-Lazil (Fajardo) petitions for review of a final order of removal issued

by the Board of Immigration Appeals (BIA). For the following reasons, we will deny his

petition for review.1


   1
      Fajardo initiated these proceedings by filing a habeas corpus petition under 28
U.S.C. § 2241 in the Middle District of Pennsylvania at No. 05-cv-00506. While his
habeas petition was pending, the REAL ID Act of 2005 took effect on May 11, 2005.
       Fajardo, a citizen of the Dominican Republic, entered the United States in 1971.

In 1993, he was convicted in Pennsylvania for delivery of cocaine and was sentenced to

15 to 36 months in prison. Based on this conviction, the Government charged Fajardo

with deportability for having been convicted of an aggravated felony and a controlled

substance offense. Fajardo conceded deportability before an Immigration Judge (IJ) and

eventually was allowed to apply for a waiver of removal under former § 212(c) of the

Immigration and Nationality Act (INA). Fajardo and his attorney appeared before the IJ

on December 27, 2000, at which time the IJ scheduled a hearing for July 25, 2001, on

Fajardo’s § 212(c) application. The IJ also sent written notice to Fajardo’s attorney of the

July 25, 2001 hearing. On June 1, 2001, the IJ allowed Fajardo’s counsel to withdraw

and again sent Fajardo written notice of the July 25, 2001 hearing. When Fajardo failed

to appear on July 25, 2001, the IJ denied § 212(c) relief and in absentia ordered him

removed to the Dominican Republic.

       In June 2004, Fajardo filed a motion to reopen proceedings with the IJ. Fajardo

asserted that he did not appear at the July 25, 2001 hearing because he did not receive

proper written notice. The IJ ruled that Fajardo failed to substantiate his motion to reopen

and denied it. On appeal, the BIA explained that Fajardo failed to demonstrate lack of


The District Court transferred the portion of the habeas petition challenging the final
order of removal to this Court to be treated as a petition for review under Section 106(c)
of the REAL ID Act of 2005. The District Court did not transfer the portion of the habeas
petition challenging Fajardo’s continued detention. Accordingly, to the extent that
Fajardo argues that his continued detention is unlawful, we cannot consider any such
arguments in the context of the current proceedings.

                                             2
notice or exceptional circumstances to excuse his failure to appear, noted that the motion

to reopen was also untimely, and affirmed the IJ’s decision. Fajardo challenged the final

order of removal by filing a habeas petition in the District Court, which transferred the

petition to this Court to be treated as a petition for review, as described previously.

       The sole question before us is whether the BIA erred in affirming the IJ’s denial of

Fajardo’s motion to reopen proceedings following the order of removal entered in

absentia. Where an alien has been ordered removed in absentia, he may file a motion to

reopen within 180 days of the final order of removal if he demonstrates “exceptional

circumstances” for his failure to appear. 8 C.F.R. § 1003.23(b)(4)(iii)(A)(1). If the alien

demonstrates that he did not receive notice of the hearing, an order of removal entered in

absentia may be rescinded upon a motion to reopen filed at any time. 8 C.F.R.

§ 1003.23(b)(4)(iii)(A)(2). Likewise, the alien may also file a motion to reopen at any

time if he demonstrates that he was in federal or state custody and that his failure to

appear was not his fault. Id.

       Without question, Fajardo’s motion to reopen was filed beyond the 180-day

period. The IJ’s order denying his motion to reopen was denied in July 2001; Fajardo

filed his motion to reopen nearly three years later in June 2004. Thus, unless Fajardo

demonstrated either lack of notice or that he was in custody and failed to appear through

no fault of his own, the BIA correctly ruled that his motion was untimely.

       After examining the record, we agree fully with the BIA that Fajardo failed to

demonstrate lack of notice. Written notice of the July 25, 2001 hearing was sent to

                                              3
Fajardo’s counsel of record on December 27, 2000. (A.R. 151-155.) When counsel was

permitted to withdraw in June 2001, a second written notice was sent to Fajardo at his

most recent known address. (A.R. 135-144.) These two written notices readily satisfy

the statutory notice requirements. See 8 U.S.C. § 1229(a)(1). In addition, Fajardo was

present with counsel on December 27, 2000, when the IJ orally notified him of the July

25, 2001 hearing. Under these circumstances, the BIA correctly ruled that Fajardo failed

to demonstrate lack of notice.

       The remaining issue is whether Fajardo was in custody and failed to appear

through no fault of his own. We have scoured the record for evidence that Fajardo was in

custody on July 25, 2001. While the record supports Fajardo’s assertion that he has spent

time in custody, no evidence of record indicates that he was in custody on July 25, 2001.

Even if Fajardo were in custody on that date, no evidence suggests that he was prevented

from informing the IJ of his custody and his inability to attend the hearing, or otherwise

requesting alternative arrangements for the hearing on his application for § 212(c) relief.

       In sum, we conclude that the BIA did not err in affirming the IJ’s decision to deny

Fajardo’s motion to reopen. Accordingly, we will deny Fajardo’s petition for review.




                                             4
