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


7-30-2007

Diaz v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5071




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT



                                     No. 05-5071



                     DOMINGA DIAZ, a/k/a DOMINGA LOPEZ,

                                       Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                      Respondent



                          On Petition for Review of an Order
                         of the Board of Immigration Appeals
                                (BIA No. A71-957-742)
                         Immigration Judge: Eugene Pugliese



                   Submitted pursuant to Third Circuit LAR 34.1(a)
                                   April 24, 2007


      Before: SCIRICA, Chief Judge, FUENTES and ALARCÓN,* Circuit Judges.


                                 (Filed: July 30, 2007)



      *
         The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
                               OPINION OF THE COURT


FUENTES, Circuit Judge.

       Dominga Diaz (formerly Dominga Lopez) petitions for review of a decision of the

Board of Immigration Appeals (“BIA” or the “Board”) denying her motion to reopen

proceedings at which she was ordered deported in absentia. Diaz claims that she was

inadequately notified of the proceedings. For the reasons that follow, we will deny the

petition.

                                             I.

                                            A.

       The deportation proceedings in this case commenced prior to April 1, 1997, and

the relevant notification procedures are therefore governed by the Immigration Act of

1990, § 545, Pub. L. No. 101-649, 104 Stat. 4978, 5061-65, 8 U.S.C. § 1252b.1 Under the

relevant provision, “an alien’s initial notice of deportation proceedings was provided in

an Order to Show Cause, which had to be delivered in person or by certified mail.”

Adeyemo v. Ashcroft, 383 F.3d 558, 559 (7th Cir. 2004) (citing § 1252b(a)(1)). This



       1
         The applicable provision, 8 U.S.C. § 1252b (1994), was repealed by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), § 308(b)(6),
Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546, 3009-615. This change, however, does
not apply to aliens in deportation proceedings prior to April 1, 1997. See Luntungan v.
Attorney General, 449 F.3d 551, 556 & n.10 (3d Cir. 2006). For convenience, we do not
repeat, in the remainder of this opinion, that 8 U.S.C. § 1252b was repealed by IIRIRA.

                                            -2-
Order notified the alien of the charges against her and required that the alien inform the

government of any changes in address. Id. When service of the Order was effected by

certified mail, the mailing receipt had to be signed for by “the respondent or a responsible

person at the respondent’s address and returned.” Id. at 560 (quoting Matter of Huete, 20

I. & N. Dec. 250, 253 (BIA 1991)).

       Subsequent to the Order to Show Cause, the Immigration and Naturalization

Service (the “INS”)2 would send an alien a Notice of Hearing, “informing the alien of the

time and place at which proceedings would be held.” Id. at 559-60 (citing § 1252b(a)(2)).

Although the Order to Show Cause had to be served by personal delivery or certified

mail, the Notice of Hearing required only proof of attempted delivery for there to be

effective service. Id. at 560 (citing Matter of Grijalva, 21 I. & N. Dec. 27, 33 (BIA

1995)).3

       To enter an in absentia order of deportation, the government was required to show

“by clear, unequivocal, and convincing evidence” that the alien received the Notice of

Hearing. § 1252b(c)(1). After 180 days, such an in absentia order could be rescinded



       2
        “On March 1, 2003, the INS ceased to exist as an independent agency within the
United States Department of Justice and the INS’s functions were transferred to the
Department of Homeland Security. See Homeland Security Act of 2002, Pub. L. No.
107-296, §§ 441, 451, 471, 116 Stat. 2135 (2002). The BIA remains within the
Department of Justice” Knapik v. Ashcroft, 384 F.3d 84, 86 n.2 (3d Cir. 2004).
       3
        With the enactment of IIRIRA, the Order to Show Cause and Notice of Hearing
were “consolidated into a single ‘Notice to Appear.’” Id. at 560 n.1 (citing 8 U.S.C. §
1229(a)(1)).

                                             -3-
only if, in relevant part, “the alien demonstrates that [she] did not receive notice in

accordance with subsection (a)(2) of this section”—i.e., if she did not receive the Notice

of Hearing. § 1252b(c)(3)(B).

                                              B.

       On July 5, 1996, the INS issued Diaz an Order to Show Cause, charging her with

seeking entry into the United States by fraud. According to the Order, Diaz had entered

the United States as a non-immigrant visitor for pleasure, but had adjusted her status

within six months to “conditional permanent resident,” based on her marriage to an

American citizen. Cert. Rec. at 79. This marriage, the Order stated, “was for

immigration purposes only,” and Diaz was therefore deportable.4 Id. The INS sent the

Order by certified mail to Diaz’s last known address, 373 North 9th Street, Prospect Park,

NJ 07508 (“North 9th Street”). It was signed for by Patricia Castro.

       On July 30, 1996, the INS sent Diaz a Notice of Hearing by certified mail to the

same address. The Notice indicated that a hearing before an Immigration Judge (“IJ”)

had been scheduled for November 14, 1996 at 9:30 AM. It also stated that, should Diaz

fail to appear, the IJ could enter an “order of deportation . . . against you[, provided that]

the [INS] establishes by clear, unequivocal and convincing evidence that . . . you or your

attorney has been provided this notice and . . . you are deportable.” Id. at 99. On August



       4
         About a year before issuing the Order, the INS revoked Diaz’s conditional
resident status. Upon Diaz’s request, the INS’s decision would have been reviewed during
the deportation proceedings.

                                              -4-
9, 1996, Diaz signed for this mailing.5 On November 14, 1996, Diaz failed to appear at

the deportation proceeding and the IJ ordered her deported in absentia.

       More than eight years later, on February 16, 2005, Diaz filed a motion to reopen

her proceedings, on the grounds that she “neither received nor was provided written

notification of the hearing on November 14, 1996.” Id. at 41. In affidavits submitted

with the motion, Diaz denied having received notification of the deportation proceedings,

explaining that, by the time the Order to Show Cause was mailed to North 9th Street, she

had already moved out. Diaz also stated that Patricia Castro, who signed for the Order,

had never contacted her about the mailing.

       In a subsequent affidavit, however, Diaz explained that her attorney had shown her

“a certified mail receipt which I signed in August 1996, almost nine years ago.” Id. at 14.

Seeing the receipt refreshed her memory of “going to the post office and signing for an

envelope,” but did not remind her of “what was inside the envelope,” or whether she had

received “a notice to appear before an immigration judge.” Id. Diaz explained that it was

“possible that I received a notice to appear before immigration and, believing that my

case was over . . . did not bother to find out what it meant.” Id.



       5
         The signed certified mailing does not appear in the Certified Administrative
Record, but the IJ and BIA both relied on it in their decisions. On June 8, 2006, we
granted leave to supplement the administrative record with this documentation. An
employee of the Executive Office for Immigration Review declared under penalty of
perjury that the copy of the signed mailing was “included in the Record of Proceeding . . .
on [Diaz’s] case.” Cert. Rec. at Supp. Petitioner does not dispute that she signed for the
mailing. Cert. Rec. at 14.

                                             -5-
       On May 23, 2005, an IJ denied Diaz’s motion to reopen. The IJ stated that the

Order to Show Cause and the Notice of Hearing were served by certified mail to the same

address, on July 5 and August 9, 1996, respectively. Since Diaz had signed for the Notice

of Hearing, and because the Order to Show Cause had been mailed to the same address,

the IJ explained that Diaz’s “claim that she never received notice is without merit.” Id. at

40. The BIA dismissed Diaz’s appeal of this decision, concluding, for largely the same

reasons as the IJ, that “proper notice was provided to [Diaz].” Id. at 2. Diaz petitions this

Court for review of that decision.

                                              II.

                                              A.

       We review the BIA’s denial of Diaz’s motion to reopen for abuse of discretion.

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

standard, the Board’s decision must be reversed if it is arbitrary, irrational, or contrary to

law.” Fadiga v. Attorney General, 488 F.3d 142, 153 (3d Cir. 2007) (quoting Sevoian v.

Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002)). We review factual determinations for

substantial evidence and legal questions de novo. Borges, 402 F.3d at 404.

                                              B.

       Diaz argues that the BIA’s decision to deny her motion to reopen was based on an

erroneous reading of § 1252b. In her view, the statute places the burden on the

government to prove “by clear, convincing, and unequivocal evidence” that effective

service of the Order to Show Cause was provided. Pet. Br. at 12. Accordingly, she

                                              -6-
contends, the government failed to prove that the Order to Show Cause was properly

served, because Patricia Castro, who signed for it, was thirteen-years old at the time of

signing and therefore not a “responsible person,” as required by the statute. Id. at 13

(citing, inter alia, Huete, 20 I. & N. Dec. at 253).

       Contrary to these contentions, however, the subsection requiring the government to

establish written notice “by clear, unequivocal, and convincing evidence” refers to the

Notice of Hearing, not the Order to Show Cause. See § 1252b(c)(1) (referring to

subsection (a)(2), governing notice of proceedings); Grijalva, 21 I. & N. Dec. at 33 (“By

its plain meaning, subsection (c)(1) refers to service of the notices of deportation

proceedings, and only pertains to these notices and not to the Orders to Show Cause.”).

Accordingly, even had there been inadequate delivery of the Order, this does not mean

Diaz was not notified of the proceedings.6 Moreover, the burden of proof in a motion to

reopen is on the petitioner, not on the government. See Giday v. INS, 113 F.3d 230, 233

(D.C. Cir. 1997) (noting that, in a motion to reopen under § 1252b, the alien has the

burden of demonstrating lack of notice).

       Diaz argues that her case “hinges on the distinction between Orders to Show Cause

and Notices of Hearing.” Pet. Br. at 16 (quoting Adeyemo, 383 F.3d at 559). According

to Diaz, “a strong presumption of effective service arises” when a Notice of Hearing is

sent by certified mail, but not when an Order to Show Cause is sent by certified mail. Id.


       6
         This case is therefore unlike Adeyemo, in which there was insufficient delivery
of both the Order to Show Cause and the Notice of Hearing. 383 F.3d at 560.

                                              -7-
(citing Grijalva, 21 I. & N. Dec. at 37). She therefore contends that the Board erred in

“presuming” that the Order to Show Cause was properly served because it was sent by

certified mail. Pet. Br. at 14.

       The distinction Diaz draws is not dispositive in this case, however, because, as the

Board concluded, she was actually notified of the proceedings. Both the IJ and BIA

concluded that Diaz was adequately served with the Order, and this determination is

supported by substantial evidence. As the IJ and BIA noted, the Order was sent by

certified mail to Diaz’s last know residence, at which Diaz herself later signed for the

Notice of Hearing. Based on the mailing receipt in the record, and Diaz’s admission that

she signed for the Notice of Hearing, we cannot disturb the conclusion that Diaz was

actually notified of the deportation hearing.

       Our review is limited to the Board’s denial of Diaz’s motion to reopen, and we

conclude that it properly determined that Diaz failed to demonstrate a lack of notification.

See § 1252b(c)(3)(B). In light of the finding of actual notice, the Board did not err in its

reading of the statute governing the motion to reopen. Cf. Gurung v. Ashcroft, 371 F.3d

718, 722 (10th Cir. 2004) (stating, in context of post-IIRIRA notice procedures, that “[a]

motion to reopen focuses on whether the alien actually received notice.”). We therefore

reject Diaz’s contention that the Board’s decision is “contrary to law” and an abuse of

discretion.

                                             III.

       For the foregoing reasons, we will deny the petition for review.

                                                -8-
-9-
