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


4-29-2005

Ruano-Orellano v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2306




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                                                 NOT PRECEDENTIAL


                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                               ____________________

                                    NO. 04-2306
                               ____________________


                      BYRON ADELSO RUANO-ORELLANO,
                                    Petitioner

                                            v.

                             ATTORNEY GENERAL
                      OF THE UNITED STATES OF AMERICA
                            ______________________


                         On Petition for Review of Order of the
                            Board of Immigration Appeals
                              (Board No. A76-283-765)
                              ______________________

                     Submitted Under Third Circuit LAR 34.1(a)
                                  April 19, 2005
               Before: ROTH, FUENTES and BECKER, Circuit Judges

                                (Filed: April 29, 2005)

                             ________________________

                              OPINION OF THE COURT
                             ________________________

BECKER, Circuit Judge.

      Byron A. Ruano-Orellano petitions for review of a final order of deportation filed
by the Board of Immigration Appeals (“BIA”) in which the BIA adopted and affirmed the

Immigration Judge’s (“IJ”) denial of Ruano’s motion to reopen his deportation

proceedings. What is at issue is whether the IJ and the BIA abused their discretion in

denying Ruano’s motion to reopen his in absentia removal order because Ruano failed to

establish that he did not receive proper notice of his master calendar hearing. The parties

are fully familiar with the background facts and procedural history, hence we need not set

them forth, and limit our discussion to our ratio decidendi. For the reasons that follow,

we will deny the petition.

       The motion to reopen was filed with the IJ on April 3, 2003, over five years after

Ruano was ordered deported. In the motion, Ruano claimed that his attorney had not

received the notice of the August 21, 1997 hearing. He attached to the motion copies of

the envelope and accompanying certified mail and return-receipt labels in which the

notice of the August 21, 1997 hearing was sent to his counsel. In denying the motion, the

IJ found that neither Ruano nor his former counsel, Jaime Castiblanco, actually denied

receiving the notice of the hearing. He wrote:

       Notice of the new hearing was . . . mailed to both Ruano and Castiblanco by
       certified mail on July 24, 1997. The notice to Castiblanco was returned to
       the immigration court for insufficient postage. The additional postage was
       added on August 5, and the letter was re-mailed to Castiblanco. Thereafer,
       the letter was not returned as undeliverable.

       Without explaining the July 22, 1997-postmark on the envelope . . .
       Ruano’s new attorney suggests that the hearing notice was first mailed to
       Castiblanco on August 5, then returned for insufficient postage but never
       re-mailed. A better interpretation of the evidence is that the postal meter

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       date-stamp, July 22, was incorrect and the hearing notice was actually
       mailed on July 24 and then re-served with the additional postage on August
       5. Moreover, attorney Catiblanco does not deny receiving the hearing
       notice.

Additionally, the IJ pointed out that Ruano had not specifically denied receiving the

hearing notice, as his motion contains no affidavit or other statement. Opining that “[t]he

representations made by Ruano’s [current] attorney are not evidence and are not entitled

to any evidentiary weight,” the IJ concluded that Ruano failed to establish that he did not

receive proper notice of the August 21, 1997 hearing. The BIA affirmed.

       We review the denial of a motion to reopen for abuse of discretion. INS v.

Doherty, 502 U.S. 314, 323 (1992) (using the abuse-of-discretion standard “regardless of

the underlying basis of the alien’s request for relief” to review a denial of a motion to

reopen)(quoting INS v. Abudu, 485 U.S. 94, 99 n.3 (1988)); Xu Yong Lu v. Ashcroft, 259

F.3d 127, 131 (3d Cir. 2001). Under that standard, a denial of a motion to reopen will be

overturned only if it is “arbitrary, irrational or contrary to law.” Tipu v. INS, 20 F.3d 580,

582 (3d Cir. 1994). We find no abuse.

       The parties do not dispute that if an alien, who has received written notice of his

deportation hearing, fails to appear, he “shall be ordered removed in absentia if the [INS]

establishes by clear, unequivocal, and convincing evidence that the written notice was so

provided and that the alien is removable.” 8 U.S.C. § 1229a(b)(5)(A)(2000), or that “[t]he

written notice by the Attorney General shall be considered sufficient for purposes of this

subparagraph if provided at the most recent address” provided by the alien in accordance

                                              3
with the INA. Id. What is at issue is whether Ruano received notice. An in absentia

order may be rescinded:

       (C)(ii) upon a motion to reopen filed at any time if the alien demonstrates
       that the alien did not receive notice in accordance with paragraph (1) or (2)
       of section 1229(a) of this title or the alien demonstrates that the alien was in
       Federal or State custody and the failure to appear was through no fault of
       the alien.

Id.

       The record, however, supports the IJ’s conclusion that the notice of the hearing

was mailed to both Ruano and his attorney. The record does not contain any statement

from the (former) attorney, Mr. Castiblanco. Moreover, in the IJ’s decision he noted that

Ruano himself had not specifically denied receiving the hearing notice. Indeed, the

hearing notice reflected that it was sent to both Ruano and his attorney. In addition, the

record contains a certified mail label bearing Ruano’s address. Thus, the IJ correctly

found that Ruano had failed to establish non-receipt of the hearing notice and properly

denied his motion to reopen. Ruano’s attempt to deflect this evidence by a statement to

the BIA (that he did not received notice of the hearing) fails – the statement is unsworn

and, at all events, essentially implies only that his house was in disarray and that, even if

the notice was delivered, he never saw it.

       The petition for review will be denied.




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