                                                            NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 10-1554
                                    ___________

                      MUKASH KUMAR MANEKLAL PATEL,
                                         Petitioner

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                             Respondent
                   ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A074-586-999)
                    Immigration Judge: Honorable Eugene Pugliese
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 February 23, 2011
           Before: BARRY, HARDIMAN and STAPLETON, Circuit Judges

                          (Opinion filed: February 24, 2011)
                                    ___________

                                     OPINION
                                    ___________

PER CURIAM

      Mukash Kumar Maneklal Patel, a citizen of India, entered the United States

without inspection in January 1996. The former Immigration and Naturalization Service

took him into custody in Texas. On January 14, 1996, Patel was personally served with
an Order to Show Cause, which charged him with being deportable pursuant to former

Immigration and Nationality Act (“INA”) § 241(a)(1)(B) [8 U.S.C. § 1231(a)(1)(B)].

The Order to Show Cause was read to Patel in Hindi, and Patel acknowledged receipt by

signing the Order. On April 5, 1996, Patel posted bond and was released from detention.

Patel later asserted that he was unaware of who had posted the money for his release, and

“walked around aimlessly for 6 hours in the rain” until he found a bus depot. Patel

boarded a bus for St. Louis, Missouri. Shortly thereafter, he traveled to Milwaukee,

Wisconsin.

          Meanwhile, Patel’s family hired Saul Brown, an attorney in New York, who

entered his appearance on April 12, 1996. On April 23, 1996, Attorney Brown submitted

a motion to change venue, asserting that Patel was staying with friends in New Jersey.

Over the Government’s objections, the Immigration Court granted the motion and

transferred the matter to the Immigration Court in Newark, New Jersey. By certified

letter dated May 24, 1996, the Immigration Court notified Attorney Brown that Patel’s

master calendar hearing was scheduled for September 13, 1996. The record contains a

signed return receipt, indicating that someone in Attorney Brown’s office accepted the

notice.

          On August 27, 1996, Attorney Brown moved to withdraw from the case, arguing

that he had not “seen or heard from the respondent since the respondent was released

from detention . . . .” At the time, Attorney Brown acknowledged that Patel’s next


                                             2
hearing was scheduled for September 13, 1996. The Immigration Court denied the

motion to withdraw on September 6, 1996. Patel did not appear for the September 13,

1996, hearing, and he was ordered deported in absentia on September 16, 1996. Notice

of the Immigration Judge=s (“IJ”) decision was mailed to Attorney Brown.

       Thirteen years later, in September 2009, Patel filed a motion to reopen the

proceedings on the ground that he had not received proper notice of the hearing. The IJ

denied the motion, holding that Patel “was provided with proper notice of his deportation

case.” The IJ noted that notice of his September 13, 1996, hearing was sent by certified

by mail to Patel’s attorney of record, that Patel had made no effort to contact his family to

ascertain the name of the attorney who posted his bond, or to hire another attorney, and

that he otherwise failed to “take[] reasonable action to determine his obligation to the

Immigration Court and to his attorney of record.” The Board of Immigration Appeals

(“BIA”) dismissed Patel’s appeal. It agreed that Patel had received proper notice under

the statutory requirements in effect in 1996. Even if Attorney Brown was not authorized

to represent Patel, the BIA concluded that notice was adequate because Patel had not

complied with the requirement, set forth in the Order to Show Cause, that he notify the

Immigration Court of address and telephone number changes. Patel filed a timely

petition for review from the order.

       We have jurisdiction under INA § 242(a) [8 U.S.C. § 1252(a)]. “We review the

denial of a motion to reopen a removal order entered in absentia for abuse of discretion.”


                                             3
Cabrera-Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir. 2006) (citing INS v. Doherty, 502

U.S. 314, 323-24 (1992)). Thus, in order to succeed on the petition for review, Patel

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).

       Because Patel’s immigration proceedings were initiated prior to the 1996

amendments to the INA, we must apply the notice requirements set forth in former INA

§ 242B [8 U.S.C. § 1252b]. Under that statute, aliens were to be notified of the time and

place of their deportation hearings either in person or by certified mail sent to the alien or

the alien’s counsel of record. See INA § 242B(a)(2)(A) [8 U.S.C. § 1252b(a)(2)(A)]. In

the event an alien failed to appear for a hearing, the Government had to prove “by clear,

unequivocal, and convincing evidence” that the alien was provided with notice of the sort

described in subsection (a)(2) and that the alien was deportable. INA § 242B(c)(1) [8

U.S.C. § 1252b(c)(1)]. Written notice was sufficient if it was “provided at the most

recent address” furnished by the alien. Id. The in absentia deportation order could be

rescinded if the alien moved to reopen at any time and demonstrated that he did not

receive notice in accordance with subsection (a)(2).1 See INA § 242B(c)(3)(B) [8 U.S.C.

§ 1252b(c)(3)(B)].


       1
         The proceedings could also be reopened at any time if the alien demonstrated
that he was in custody and that the failure to appear was through no fault of his own. See
INA § 242B(c)(3) [8 U.S.C. § 1252b(c)(3)]. Also, an in absentia order of removal could
be rescinded “upon a motion to reopen filed within 180 days after the date of the order of


                                              4
       We conclude that the BIA did not abuse its discretion in denying the motion to

reopen because, for purposes of rescinding an in absentia removal order under INA

§ 242B(c)(3), Patel has failed to demonstrate that he “did not receive notice” of the

hearing. It is clear that Attorney Brown was notified of the September 13, 1996, hearing.

See Santana Gonzalez v. Att’y Gen., 506 F.3d 274, 277 (3d Cir. 2007) (holding that a

strong presumption of receipt applies when a notice from an Immigration Court is sent by

certified mail). Furthermore, Patel no longer disputes that Attorney Brown was his

counsel of record during the relevant time period. Cf. Sewak v. INS, 900 F.2d 667, 672-

74 (3d Cir. 1990) (suggesting that new hearing would be required if petitioner could

substantiate his allegations that his attorney was not authorized to enter an appearance on

his behalf). In April 1996, Attorney Brown entered his appearance before the

Immigration Court in Texas. On the Entry of Appearance form, Attorney Brown checked

the box labeled “Deportation (Including Bond Redetermination)” to indicate the “type of

proceeding for which I am entering an appearance.” Attorney Brown then successfully

moved for a change of venue to Newark, New Jersey. Shortly thereafter, on May 24,



deportation if the alien demonstrates that the failure to appear was because of exceptional
circumstances.” INA § 242B (c)(3)(A) [8 U.S.C. § 1252b(c)(3)(A)]. Neither of these
provisions is applicable here because Patel was not in custody, his motion to reopen was
filed 13 years after he was ordered deported in absentia, and, as noted below, he did not
act diligently as would be required for equitably tolling the time period for filing a
motion to reopen based on exceptional circumstances. See Mahmood v. Gonzales, 427
F.3d 248, 252 (3d Cir. 2005).



                                             5
1996, the Immigration Court notified Attorney Brown by certified letter that Patel’s

master calendar hearing was scheduled for September 13, 1996. Although Attorney

Brown moved to withdraw from the case shortly before the scheduled hearing because he

had “not seen or heard from” Patel, the IJ denied the motion. Thus, Attorney Brown was

Patel’s counsel of record when the hearing notice was sent and on the date of the

hearing.2

       Patel argues that “[f]or the in absentia order to be valid, . . . actual notice [of the

hearing had to be] effected on [him] through Attorney Brown.” We disagree. Service by

certified mail to an alien’s attorney can satisfy the INA’s notice requirement. See

Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir. 2003); see also Anin v. Reno, 188 F.3d

1273, 1277 (11th Cir. 1999) (“[N]o statutory provision requires an alien to receive actual

notice of a deportation proceeding.”). Patel asserts, however, that “the purpose for

serving [Attorney] Brown, as [his] representative, was defunct ab initio” because

Attorney Brown was unable to contact him. Importantly, however, Patel contributed to

his lack of notice by failing to make any effort to contact Attorney Brown or to keep


       2
         We agree with the BIA that, even assuming that Attorney Brown was not
authorized to represent Patel, he cannot establish that he did not receive notice of the
hearing. There is no evidence in the record that Patel complied with the requirement, set
forth in the Order to Show Cause, that he inform the Immigration Court of his current
mailing address. See Gomez-Palacios v. Holder, 560 F.3d 354, 360 (5th Cir. 2009)
(recognizing that “an alien’s failure to receive actual notice of a removal hearing due to
his neglect of his obligation to keep the immigration court apprised of his current mailing
address” does not entitle the alien to rescission of an in absentia removal order).


                                               6
himself apprised of his immigration proceedings.3 In Bejar v. Ashcroft, 324 F.3d 127,

129-30 (3d Cir. 2003), the petitioner’s attorney had received notice of the removal

hearing, but was unable to locate and communicate with his client because she had

moved and had failed to provide her attorney with her new address. See Mahmood, 427

F.3d at 251 (discussing facts of Bejar). We stated that “we cannot entertain an appeal

based on [petitioner’s] allegation that she personally failed to receive notice, for it is

undisputed that her former attorney received timely notice of her removal hearing, and

service upon her attorney is considered to be legally sufficient.” Bejar, 324 F.3d at 131.

Here, given Patel’s lack of diligence, we conclude that he has failed to demonstrate that

he did not receive notice in accordance with INA § 242B(a)(2). Consequently, the BIA

did not abuse its discretion in holding that Patel was not entitled to rescission of the in

absentia deportation order.

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



       3
         Patel complains that the Order to Show Cause, which informed him of his
obligation to update his current address with the Immigration Court, was read to him in
Hindi, rather than his native language, Gujarati. Any claim related to the interpretation of
the Order to Show Cause has been waived, however, because Patel did not exhaust it with
the BIA. See Lin v. Att’y Gen., 543 F.3d 114, 120 n.6 (3d Cir. 2008). He did allege in
his motion to reopen that that “the only way [he] would have known [of] his obligation to
apprise the Service of his current address B the papers the Service served upon release on
bond B had been rain-soaked, waterlogged and obliterated.” Because Patel has not
argued this point in his opening brief, we will not consider it. See Bradley v. Att’y Gen.,
603 F.3d 235, 243 n.8 (3d Cir. 2010) (holding that argument not raised in opening brief is
waived).


                                               7
