                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-5-2007

Villacis-Espin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4743




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                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 06-4743
                                    ________________

                         NORA CATERINA VILLACIS-ESPIN,
                                                Petitioner

                                             v.

                  ATTORNEY GENERAL OF THE UNITED STATES,
                                                 Respondent
                     ____________________________________

                            On Review of a Decision of the
                             Board of Immigration Appeals
                                (Agency No. 73-086-228)
                      Immigration Judge: Honorable Annie S. Garcy
                       ____________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 22, 2007

        BEFORE: RENDELL, HARDIMAN AND COWEN, CIRCUIT JUDGES

                                    (Filed: July 5, 2007)

                               _______________________
                                      OPINION
                               _______________________

PER CURIAM

       Petitioner, Nora Caterina Villacis-Espin, petitions for review of an order of the

Board of Immigration Appeals (“BIA”) dismissing her appeal from the Immigration

Judge’s (“IJ”) decision denying her motion to reopen proceedings following an order of

deportation, entered in absentia, after Villacis-Espin failed to appear at a scheduled
hearing. We will deny the petition for review.

       Villacis-Espin, a native and citizen of Ecuador, entered the United States at

Brownsville, Texas, on September 25, 1994 without inspection. Deportation proceedings

were commenced on October 1, 1994, when Villacis-Espin was personally served with an

Order to Show Cause and Notice of Hearing charging her with being deportable under the

old Immigration and Nationality Act (“INA”) § 241(a)(1)(B), as an alien entering the

United States without inspection. A.R. 76-80. Villacis-Espin was advised through that

notice, which was read to her in the Spanish language, that a deportation hearing would

be calendared and that notice of the hearing date would be provided by the Office of the

Immigration Judge to the address she provided. A.R. 78. Petitioner was further advised

that she was required to appear at the scheduled hearing, that failure to appear would

result in her being ordered deported in absentia, that she was required to provide an

address where she could be contacted, and that written notice of any change of address

had to be provided within five (5) days of such change. A.R. 79. Villacis-Espin provided

an address, which was noted on the Order to Show Cause and on her Form I-221 (Record

of Deportable Alien, A.R. 66) – both of which were completed on October 1, 1994 – and

notice of the scheduled date for the Master hearing before the IJ was mailed to her at that

address on November 23, 1994. A.R. 68. When Villacis-Espin failed to appear for her

deportation hearing on March 28, 1995, she was ordered removed from the United States

in absentia.

       On February 1, 2006, more than ten years later, Villacis-Espin filed a motion to

                                             2
reopen proceedings to have the in absentia order rescinded. Petitioner based her reopen

motion on the allegation that she lacked notice of the hearing held on March 28, 1995.

The IJ denied Villacis-Espin’s motion to rescind/reopen in an order dated February 10,

2006. The IJ noted that, although petitioner’s attorney asserted that she was not served

with notice of the date, time and place of the deportation hearing, Villacis-Espin provided

no affidavit or statement to the court concerning the “supposed failure to receive notice”

or where she was actually living at the time the notice was mailed. The IJ further noted

that the court’s hearing notice sent on November 23, 1994, was mailed to the same

address that Villacis-Espin provided to the former Immigration and Naturalization

Service (“INS”) just one month prior. Since Villacis-Espin failed to provide either the

court or the INS with any other mailing address as required, the IJ concluded that

petitioner failed to establish that notice was mailed to an address not provided by her to

the United States government and that notice was thus proper. Finding no other basis to

rescind the order due to any impropriety in service, and further finding that the motion to

reopen was time-barred with respect to any other relief, the IJ denied Villacis-Espin’s

motion.

       The BIA affirmed the IJ’s decision in an Order dated October 12, 2006. As did the

IJ, the BIA noted that petitioner’s request for rescission/reopening was not supported by

an affidavit from Villacis-Espin, either as part of the original motion or on appeal. While

recognizing that petitioner raised “sympathetic facts” in her motion (inter alia, her

removal could temporarily separate her from her U.S.-citizen daughter with whom she

                                              3
shares custody with her former spouse), the BIA nonetheless concluded that it could find

no error in the IJ’s determination that Villacis-Espin failed to show lack of notice.

Accordingly, the BIA dismissed the appeal. A timely petition for review followed.

        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, Villacis-Espin 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 procedures set forth in former § 242B(c)(1) of the INA [8 U.S.C. §

1252b(c)(1)], which were in effect and govern the underlying deportation proceedings, an

IJ is required to enter an in absentia order when an alien “does not attend” a deportation

proceeding after written notice has been provided to the alien or the alien’s counsel of

record, “if the Service establishes by clear, unequivocal, and convincing evidence that the

written notice was so provided and that the alien is deportable.”1 Such an order may be

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

did not receive notice “in accordance with subsection (a)(2)” of INA § 242B [8 U.S.C. §

1252b].”2 See INA § 242B(c)(3)(B) [8 U.S.C. § 1252b(c)(3)(B)]. Subsection (a)(2)


   1
       A similar provision now appears at INA § 240(b)(5)(A) [8 U.S.C. § 1229a(b)(5)(A)].
   2
     The proceedings may also be reopened at any time if the alien demonstrates that she
was in custody and that the failure to appear was through no fault of her own. See INA

                                              4
requires that written notice “be given in person to the alien (or, if personal service is not

practicable, written notice shall be given by certified mail to the alien or to the alien’s

counsel of record, if any).”

       As respondent correctly points out, nowhere in Villacis-Espin’s brief does she take

issue with the BIA’s determination that she failed to show lack of proper notice regarding

the hearing date or with its conclusion that she failed to support her reopen motion with

affidavits or other evidentiary material as required. See 8 C.F.R. §§ 1003.2(c)(1),

1003.23(b)(3), 103.5(a)(2). Therefore, those issues are not before us.3 See Kost v.

Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993). Additionally, to the extent Villacis-Espin’s

brief may be read as attempting to raise a challenge to the IJ’s determination that her

reopen motion was otherwise time barred, no such argument was presented to the BIA on

appeal. That issue has thus not been exhausted, and we cannot consider it. See Joseph v.

Attorney General, 465 F.3d 123, 126 (3d Cir. 2006) (“An alien must exhaust all

administrative remedies available to him as of right before the BIA as a prerequisite to

raising a claim before this Court.”); Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.

2005) (an applicant must first raise the issue before the BIA).

       Accordingly, we will deny the petition for review.




§ 242B(c)(3) [8 U.S.C. § 1252b(c)(3)]. This provision is not applicable, however,
because Villacis-Espin was not in custody.
   3
     In any event, it appears that petitioner would not prevail on either of these
contentions given the record presented.

                                               5
