                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-29-2008

Saeteros-Torres v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1294




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                     No. 07-1294
                                  ________________

                       JOSE RODRIGO SAETEROS-TORRES,

                                                          Petitioner,

                                           v.

                          ATTORNEY GENERAL OF THE
                         UNITED STATES OF AMERICA;
                        SECRETARY OF DEPARTMENT OF
                            HOMELAND SECURITY,
                               ________________

                      On Petition for Review of a Decision of the
                           Board of Immigration Appeals
                              (Agency No. A95 679 381)
                    Immigration Judge: Honorable Daniel Meisner
                                  ________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                September 20, 2007

             BEFORE: SLOVITER, MCKEE and AMBRO, Circuit Judges

                               (Filed January 29, 2008)
                                 ________________

                                      OPINION
                                  ________________

PER CURIAM

      Jose Rodrigo Saeteros-Torres petitions for review of an order of the Board of

Immigration Appeals (“BIA”) affirming the denial of his motion to reopen his removal
proceedings following the Immigration Judge’s (“IJ”) order of removal, entered in

absentia when Saeteros-Torres failed to appear at a scheduled removal hearing. For the

following reasons, we will deny the petition for review.

       Saeteros-Torres, a native and citizen of Ecuador, entered the United States near

Douglas, Arizona, on July 13, 2004. Almost immediately, on July 15, 2004, he was

personally served with a notice to appear, charging him as being removable pursuant to

Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(I) [8 U.S.C.

§ 1182(a)(6)(A)(I)], based on his entry into this country without being admitted or

paroled. On July 29, 2004, he was notified, again by personal service, that a hearing had

been scheduled for August 19, 2004.

       On August 2, 2004, after being released from immigration detention, Saeteros-

Torres moved to have his case transferred to the immigration court with jurisdiction over

his new address on Mill Street in Morristown, New Jersey. The motion was granted. In a

letter dated October 21, 2004, and sent by regular mail to the Mill Street address, the

immigration court notified Saeteros-Torres that a hearing in his case was scheduled for

December 9, 2004. Saeteros-Torres failed to appear for that hearing, however, and the

Immigration Judge (“IJ”) ordered him removed in absentia.

       In August 2006, Saeteros-Torres filed a motion to reopen the proceedings to seek

voluntary departure, alleging that he never received notice of the hearing. In support of

his claim, Saeteros-Torres submitted a statement indicating that he moved in early

October 2004 to an address on Green Street in Morristown, that he provided the new

                                             2
address to the Department of Homeland Security (“DHS”), and that he continued to check

for mail at the Mill Street address until December 2005. The IJ denied the motion and the

Board of Immigration Appeals (“BIA”) dismissed Saeteros-Torres’ appeal. The Board

concluded that Saeteros-Torres’ statement was insufficient by itself to rebut the

presumption that he received the hearing notice. Saeteros-Torres filed a petition for

review of the BIA’s decision.

       The denial of a motion to reopen is reviewed for abuse of discretion. See Lu v.

Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001). As the Supreme Court has stated, the

regulations “plainly disfavor” such motions. INS v. Abudu, 485 U.S. 94, 110 (1988).

Thus, in order to succeed on the petition for review, Saeteros-Torres must ultimately

show that the discretionary decision was somehow arbitrary, irrational, or contrary to law.

See Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994).

       Under the INA, when an alien “does not attend” a removal proceeding after written

notice has been provided to the alien or the alien’s counsel of record, the IJ must order the

alien removed in absentia “if the Service establishes by clear, unequivocal, and

convincing evidence that the written notice was so provided and that the alien is

removable.” INA § 240(b)(5)(A) [8 U.S.C. § 1229a(b)(5)(A)]. Such an order may be

rescinded, however, if the alien moves to reopen at any time and demonstrates that he did

not receive notice of the proceeding “in accordance with paragraph (1) or (2) of section




                                             3
239(a).”1 See INA § 240(b)(5)(C)(ii) [8 U.S.C. § 1229a(b)(5)(C)(ii)]. Paragraphs (1) and

(2) of § 239(a) require that notice of the proceedings, including a change in the time or

place of the proceedings, be given in person to the alien “(or, if personal service is not

practicable, through service by mail to the alien or to the alien’s counsel of record, if

any).”

         We recently adopted a standard providing that a “strong presumption [of

receipt] . . . applies only when a notice from an Immigration Court . . . is sent by certified

mail, and that a weaker presumption of receipt applies when such a notice is sent by

regular mail.” Santana Gonzalez v. Attorney General, 506 F.3d 274, 279 (3d Cir. 2007).

An alien’s affidavit claiming non-receipt of a notice sent by regular mail, along with

corroborating circumstantial evidence, may be sufficient to raise a factual issue requiring

an evidentiary hearing before the IJ. See id. at 280. The petitioner in Santana Gonzalez

sought to reopen an in absentia removal order, claiming in an affidavit that she did not

receive the hearing notice sent via regular mail despite various attempts to inform the


   1
     The proceedings may also be reopened at any time if the alien demonstrates that he
was in custody and that the failure to appear was through no fault of his own. See INA
§ 240(b)(5)(C) [8 U.S.C. § 1229a(b)(5)(C)]. In addition, the in absentia removal order
may be rescinded if the alien moves to reopen within 180 days and establishes that his
failure to appear was because of exceptional circumstances. See 8 U.S.C.
§ 1229a(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii). In certain circumstances, the 180-day
period for filing a motion to reopen to rescind an in absentia removal order may be
equitably tolled by an ineffective assistance of counsel claim. See Borges v. Gonzales,
402 F.3d 398, 406 (3d Cir. 2005). In this case, because Saeteros-Torres was not in
custody, filed his motion to reopen two years after being order removed, and has not
demonstrated that he acted diligently in pursuing his claim, these provisions for reopening
are not applicable.

                                              4
DHS of her change of address. Id. at 275, 281. Significantly, the record “disclosed that

Petitioner at all times sought to have a hearing to adjust her status,” a form of relief she

was entitled to under the Cuban Adjustment Act. Id. at 280-81. Consequently, the

petitioner “may not have had a motive to avoid the scheduled hearing” and “had little to

gain by failing to appear at the hearing.” Id. at 280-81. We concluded that this

corroborating circumstantial evidence, together with the petitioner’s affidavit, might be

sufficient to rebut the newly announced, less stringent presumption of receipt. Id. at 281.

       Saeteros-Torres also submitted a statement alleging non-receipt. But the record

here does not contain the degree of circumstantial evidence supporting his claim as was

present in Santana Gonzalez. Most importantly, Saeteros-Torres did not allege that he

sought, or was eligible for, any type of immigration relief. Indeed, he was facing a

hearing at which only the propriety of the removal charge would be at issue. Because

Saeteros-Torres apparently had no defense to that charge, he had good reason to avoid the

hearing. Under these circumstances, we conclude that Saeteros-Torres has not rebutted

the presumption that he received the October 21, 2004 hearing notice by regular mail.

       In sum, and in light of the “broad deference” that we must accord the BIA’s

decision, see Zheng v. Gonzales, 422 F.3d 98, 106 (3d Cir. 2005), we cannot say that the

BIA abused its discretion in affirming the IJ’s denial of Saeteros-Torres’ motion to

reopen. Accordingly, we will deny his petition for review.




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