Mukash Kumar Patel v. Atty Gen USA ( 2011 )

  •                                                             NOT PRECEDENTIAL
                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                        No. 10-1554
                          MUKASH KUMAR MANEKLAL PATEL,
                           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)
          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,
              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
              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
    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.”
    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)].
             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
           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).
    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
           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
             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).
    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.
             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