                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-22-2006

Carrasco-Potes v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3635




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                                                      NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                           __________

                               No. 05-3635
                               __________

                    RICARDO CARRASCO-POTES,

                                                         Petitioner
                                       v.

          ATTORNEY GENERAL OF THE UNITED STATES,

                                                         Respondent

                          __________________

                On Petition for Review of an Order of the
                    Board of Immigration Appeals
                      (Agency No. A95-820-893)
                          __________________


                Submitted under Third Circuit LAR 34.1(a)
                         on September 29, 2006

       BEFORE: RENDELL, ROTH and GIBSON*, Circuit Judges

                    (Opinion filed November 22, 2006)



                              OPINION




*Honorable John R. Gibson, Senior Eighth Circuit Judge, sitting by designation.
ROTH, Circuit Judge:

       Ricardo Carrasco-Potes petitions for review of the order of the Board of Immigration

Appeals (BIA) affirming the Immigration Judge’s (IJ) denial of his motion to reopen his

removal proceedings held in absentia. We will deny the petition.

       Carrasco-Potes, a native and citizen of Guayaquil, Ecuador, was admitted into the

United States in 1985 on a B-2 visitor’s visa, which authorized him to remain in the country

for six months. He unlawfully remained in the United States beyond the six month period.

On November 16, 2002, he was arrested and subsequently sentenced to one year of probation

for entering an airport area in violation of security requirements. Upon his arrest, Carrasco-

Potes provided certain information to immigration officials, including his address of 31

Northview Terrace, Garfield, New Jersey.

       Removal proceedings were initiated against him. He was personally served at 31

Northview Terrace, Garfield, New Jersey, with a Notice to Appear for his removal

proceeding. On March 2, 2004, a second notice, which included the date, time, and location

of his hearing, was mailed to this same address. Carrasco-Potes, however, failed to appear

at his hearing on March 18, 2004. Pursuant to 8 U.S.C. § 1229a(b)(5)(A), the IJ ordered his

removal from the United States in absentia.

       On July 12, 2004, Carrasco-Potes married Maribel Rodriguez, a United States citizen.

On July 15, 2004, he filed a motion to reopen removal proceedings with the IJ. In denying

his motion, the IJ concluded that Carrasco-Potes failed to establish that he did not receive

proper notice of his hearing date, in light of the fact that the Notice to Appear had been

                                              2
personally served and the hearing notice was subsequently mailed to the address listed on the

Notice to Appear. Carrasco-Potes appealed this decision to the BIA. In affirming the

decision of the IJ, the BIA agreed that Carrasco-Potes received proper notification of his

removal proceedings, as notice was mailed to the address that he had provided to

immigration officials in 2002.      Furthermore, there was no evidence in the record

demonstrating that he had in fact sent a notice of change in address to the immigration court.

The BIA also noted that a reopening of the proceedings was not warranted based on his

marriage to a U.S. citizen, since his motion was not timely filed under the general time

limitations governing motions to reopen. See 8 C.F.R. § 1003.2(c)(2). Carrasco-Potes timely

filed a petition for review with this court, in which he seeks relief from the denial of his

motion to reopen removal proceedings held in absentia.

       We have jurisdiction to review final orders of the BIA under 8 U.S.C. § 1252. Denials

of motions to reopen removal proceedings fall within the discretion of the BIA. See 8 C.F.R.

§ 1003.2(a). Thus, we review the BIA’s denial of Carrasco-Potes’ motion to reopen for

abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). Under this

standard, the BIA’s decision will be upheld unless it was “arbitrary, irrational, or contrary

to law.” Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994).

       In his petition for review, Carrasco-Potes claims that the BIA abused its discretion in

denying his motion to reopen because he had demonstrated both a lack of proper notice of

his removal proceedings and “exceptional circumstances” to justify his failure to appear at

his hearing. Indeed, the law permits a removal order entered in absentia to be rescinded upon

                                              3
a showing that the alien’s failure to appear was the result of exceptional circumstances

beyond the control of the alien, “such as battery or extreme cruelty to the alien,...[or] serious

illness of the alien,...but not including less compelling circumstances.” See 8 U.S.C. §§

1229a(b)(5)(C)(i), 1229a(e)(1). The removal order may also be rescinded if the alien

demonstrates that he did not receive proper notice of his removal proceedings in accordance

with 8 U.S.C. § 1229(a). See 8 U.S.C. § 1229a(b)(5)(C)(ii).

       In this instance, the BIA did not abuse its discretion in determining that Carrasco-

Potes failed to establish exceptional circumstances to justify his failure to appear at his

removal proceedings. On appeal, Carrasco-Potes offers no evidence, apart from his alleged

lack of notice, from which the court is compelled to excuse his failure to appear at his

hearing. Without more, he is not entitled to rescission of his removal order based on a claim

of exceptional circumstances, as defined in 8 U.S.C. § 1229a(e)(1).

       Similarly, the record does not support Carrasco-Potes’ contention that he did not

receive proper notice of his removal proceedings. Consistent with the requirements of 8

U.S.C. § 1229(a), written notice was provided to him “through service by mail.” Such

service is sufficient “if there is proof of attempted delivery to the last address provided by

the alien.” 8 U.S.C. § 1229(c). The record reflects that Carrasco-Potes was personally

served with a Notice to Appear on December 4, 2002, and that on March 2, 2004, a hearing

notice, which included its time, date and location, was mailed to 31 Northview Terrace,

Garfield, New Jersey, his last known address. Carrasco-Potes offers no evidence to support

any other conclusion. Accordingly, he is not entitled to a rescission of his removal order

                                               4
under 8 U.S.C. § 1229a(b)(5)(C)(ii).

       Because Carrasco-Potes failed to demonstrate exceptional circumstances or lack of

notice to justify his failure to appear at his removal proceedings, the BIA did not abuse its

discretion in denying his motion to reopen. Therefore, we will deny the petition for review.




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