Lopez, Brigida v. Gonzales, Alberto , 181 F. App'x 573 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 15, 2006
Decided May 12, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-2901
BRIGIDA LOPEZ, On Petition for Review of
Petitioner, an Order of the Board of
Immigration Appeals
v.
A77-775-756
ALBERTO R. GONZALES,
Respondent.
ORDER
After Brigida Lopez was ordered removed in absentia for failing to appear at
her removal hearing, she moved to reopen, alleging that she did not receive actual
notice of the hearing. Disbelieving her allegation and also finding that she had
failed to notify the INS of her purported new address, the Immigration Judge (“IJ”)
denied the motion. The Board of Immigration Appeals (“BIA”) summarily affirmed.
We deny the petition for review because the IJ’s decision charging Lopez with notice
is supported by substantial evidence and also is justified by Lopez’s failure to
apprise the INS of any purported move to a new residence.
Lopez entered the United States from Mexico without inspection sometime in
1994 and applied to adjust her immigration status to that of a lawful permanent
resident in 1999. The INS denied the application in July 1999. That decision was
No. 05-2901 Page 2
addressed to Lopez at “68 W. Elizabeth Drive, Apartment #10” in Addison, Illinois,
where she admittedly resided at that time.
On June 23, 2000, the INS sent Lopez a notice to appear for a removal
hearing. The notice was sent by regular mail to apartment #10 at 68 W. Elizabeth
Drive in Addison. The INS sent a subsequent notice dated September 29, 2000,
providing Lopez with the date and time of her hearing, again to apartment #10 and
by regular mail. A third notice sent on January 16, 2001, to the same apartment
directed her to appear for a master calender hearing in her removal proceedings on
April 20, 2001.
When Lopez failed to appear at the hearing on April 20, the IJ ordered her
removed in absentia. The INS sent a copy of that order (the “bag-and-baggage
letter”) this time by certified mail to her address at 68 W. Elizabeth Drive,
apartment #10, informing her that she had been ordered removed. A receipt card
accompanying the bag-and-baggage letter was signed by her husband, Jose
Lopez-Casas, on November 20, 2001. According to Lopez, she discovered for the
first time that she had been ordered removed in absentia during an interview for a
second application to adjust status that she filed in April 2003. She asserts she
was unaware of the hearing or the in absentia removal order because the notices
were sent to apartment #10 and she had moved from that apartment to apartment
#5 in the same housing complex in August 1999.
In support of her motion to reopen, Lopez submitted the following documents:
her own affidavit and affidavits from her husband, her brother-in-law, and his wife
attesting to the nonreceipt of the hearing notices and to the move; a bank statement
from September 2000 that was sent to Lopez’s husband at apartment #5; and a
letter dated November 17, 2000, sent to her husband at apartment #5 from the
National Visa Center (“NVC”) in response to his request for a visa number for her.
Her in-laws testified by affidavit that Lopez moved into apartment #5 after they
vacated it because they bought a house in August 1999. As evidence of that
purchase, Lopez submitted a promissory note signed by her brother-in-law and
another person.
In a one-paragraph order the IJ declined to credit Lopez’s assertion that she
had not received the INS notices because she had moved to a different apartment
before the notices were sent. The IJ found that Lopez’s husband’s signature
acknowledging receipt of the November 2001 bag-and-baggage letter, mailed to
apartment #10, demonstrated that they were still living there several months after
the last notice of her hearing was sent in January 2001. Thus, under the authority
of In re M-D-, 23 I. & N. Dec. 540 (BIA 2002) (stating that delivery to residence
equals actual receipt by alien), the IJ concluded that Lopez could be charged with
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having received notice. The IJ also separately found Lopez had failed to properly
notify the government of any purported move.
Lopez argues on appeal that the IJ abused his discretion in denying her
motion to reopen because he failed to adequately consider her evidence showing she
had moved. See Singh v. Gonzales, 404 F.3d 1024, 1027 (7th Cir. 2005) (review of
denial of motion to reopen is for abuse of discretion). Lopez is correct that an IJ
may rescind an order of removal entered in absentia if the alien demonstrates that
without her own fault she did not receive notice of her removal hearing. See INA
§ 240(b)(5)(C)(ii), 8 U.S.C. § 1229a(b)(5)(C)(ii); Sabir v. Gonzales, 421 F.3d 456, 458-
59 (7th Cir. 2005). Because the BIA summarily affirmed the IJ’s opinion, this court
reviews the IJ’s opinion denying the motion to reopen. Tolosa v. Ashcroft, 384 F.3d
906, 908 (7th Cir. 2004). Where the IJ’s denial of the motion is based on a factual
finding, that finding must be supported by substantial evidence. See Singh,
404 F.3d at 1027 (noting that while review of denial of motion to reopen is for abuse
of discretion, factual findings underlying denial require the support of substantial
evidence). Substantial evidence is evidence a reasonable mind would find adequate
to support a conclusion. Id.Substantial evidence supports the IJ’s factual finding that Lopez received the
INS notices. The IJ was faced with undisputed evidence that Lopez was living in
apartment #10 in July 1999 and that her husband signed for the bag-and-baggage
letter at apartment #10 in November 2001. Lopez offers no alternative explanation
for these facts, such as the unlikely scenario that she moved from one apartment
and then back in two years, or that her husband signed for mail at a residence other
than where they lived, or that they maintained two apartments in the same
complex. Cf. Adeyamo v. Ashcroft, 383 F.3d 558, 560 (7th Cir. 2004) (granting
petition for review where alien explained why signature on receipt card was not
evidence that he had moved by showing that signature was not his or his agent’s).
A reasonable mind could find this evidence adequate to support the conclusion that
Lopez was living in apartment #10 when the hearing notices were sent, none of
which were returned as undeliverable. See Gurung v. Ashcroft, 371 F.3d 718, 722
(10th Cir. 2004) (upholding BIA’s denial of motion to reopen where alien received
subsequent notice mailed to address he claimed to have vacated). And Lopez simply
mischaracterizes the IJ’s decision by arguing that he erroneously found the
bag-and-baggage letter gave her notice of her hearing; rather, the IJ found that her
husband’s receipt of the bag-and-baggage letter at the same address to which the
earlier notices were sent strongly suggested that she received the other notices as
well. See In re G-Y-R-, 23 I. & N. Dec. 181 (BIA 2001) (noting that alien will be
charged with receipt where service is made to household member).
Lopez insists that had the IJ adequately weighed her specific evidence, he
could have reached a contrary decision. We do not review whether there was
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evidence to support a conclusion contrary to that reached by the IJ, but whether the
evidence compels a contrary conclusion. See Bradvica v. INS, 128 F.3d 1009, 1012
(7th Cir. 1997). And we are not convinced that the record compels a result contrary
to that reached by the IJ. The bank statement Lopez submitted dated
September 21, 2000, and sent to Lopez’s husband at apartment #5, does not prove
that she had moved to apartment #5 by June 23, 2000, the date that the initial
hearing notice was sent to her at apartment #10. Although the initial notice did not
specify the date of the hearing, it warned her that future hearing notices “will be
mailed to this address” so she “must” notify the Immigration Court of any change of
address or risk an order of removal in absentia. Likewise, the promissory note
(reflecting her brother-in-law’s move) that Lopez claims the IJ ignored does not
compel a conclusion that Lopez had moved by the time the notices were sent; all it
demonstrates is that her brother-in-law entered into an agreement for financing in
August 1999. Lopez’s husband’s request to the NVC for a visa number sometime
prior to November 2000 does not corroborate her claim that she did not receive
notice of her removal hearing, as she contends, because a request for a visa number
is a separate proceeding that runs concurrently with removal proceedings. See
Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir. 2005) (describing how removal
proceedings advance even though alien filed application for visa). Only where an
alien specifically inquires about removal, and not some other proceeding, have such
inquiries been found corroborative of a claim of no notice of the removal action. See
Joshi v. Ashcroft, 389 F.3d 732, 736 (7th Cir. 2004) (noting that alien who sent two
letters specifically inquiring about her removal proceedings is corroboration that
she had not received notice of hearing); Salta v. INS, 314 F.3d 1076, 1079 (9th Cir.
2002). Had Lopez also submitted something that showed that she, and not just her
in-laws, had moved in 1999, her evidence might be more compelling. But absent
this alternative proof, and with the undisputed, signed receipt of the
bag-and-baggage letter at apartment #10 in November 2001, Lopez’s proffered
evidence is inadequate to compel a result that she had moved and did not receive
notice.
In addition, Lopez’s failure to notify the Attorney General in writing of her
purported change of address supports the IJ’s decision. An alien has a continuing
obligation to notify the Attorney General in writing of any address changes. See
INA § 265, 8 U.S.C. § 1305(a); 8 C.F.R. § 265.1 (requiring alien to keep address
current by completing and mailing Form AR-11 to Department of Justice). Lopez
says the notices failed to reach her because she moved, and yet she has never
alleged, let alone advanced evidence, that she informed the Attorney General of any
address change. Rather, her implicit position is that her husband’s communication
with the NVC satisfied her duty to report her new address to the Attorney General.
Lopez provides no evidence that her husband contacted NVC about the address
change before she would have received the June and September 2000 notices, or
that her husband’s communication was in writing, as 8 U.S.C. § 1305 requires. See
No. 05-2901 Page 5
Dominguez v. U.S. Atty. Gen., 284 F.3d 1258, 1260-61 (11th Cir. 2002) (finding that
lack of evidence as to when alien alerted INS of purported move supported denial of
motion to reopen). Moreover, the NVC is part of the Department of State and her
reporting obligation is to the Attorney General. Compare Department of State,
National Visa Center, http://travel.state.gov/visa/immigrants/types/types_1309.html
with INA § 265, 8 U.S.C. § 1305(a). It is undisputed that Lopez failed to satisfy her
duty to notify the Attorney General of any address change. Under these
circumstances, the IJ need not reopen. See Sabir, 421 F.3d at 459 (creating
exception to rule that alien must receive notice for situations where alien makes
himself unreachable); Sharif v. Ashcroft, 280 F.3d 786, 788 (7th Cir. 2002) (holding
that there is no basis for judicial relief where the “address problem is the fault” of
the alien).
We therefore DENY the petition for review.