Veronica Capaz-Rodrigues v. Attorney General United States , 586 F. App'x 88 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 14-1737
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VERONICA APRIGIO CAPAZ-RODRIGUES,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA
__________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No. A098-995-252)
Immigration Judge: Annie S. Garcy
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 1, 2014
Before: SMITH, KRAUSE and BARRY, Circuit Judges
(Opinion filed: October 2, 2014)
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OPINION
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PER CURIAM
Veronica Aprigio Capaz-Rodrigues (“Rodrigues”) petitions for review of the Board of
Immigration Appeals’ determination not to rescind her final order of removal. For the reasons
that follow, we will deny the petition for review.
Rodrigues, a native and citizen of Brazil, was arrested on May 27, 2005 by the U.S.
Border Patrol after she waded across the Rio Grande, about 10 miles west of the Hidalgo,
Texas Port of Entry. She gave her eventual destination as 813 Pennington Street., Elizabeth,
N.J. 07292, an address that immigration authorities determined was legitimate through the U.S.
Postal Service’s website. On May 30, 2005, Rodrigues was charged as removable under
Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 212(a)(6)(A)(i), and
personally served with a Notice to Appear for removal proceedings and a hearing to be held on
July 28, 2005 in Newark, New Jersey. Due to a lack of space, she then was released on her
own recognizance. Rodrigues proceeded to Richmond, Virginia, to join her husband,
Wanderlei Rodrigues, who apparently had entered the United States the year before. 1
On June 28, 2005, Immigration Court staff sent Rodrigues a new Notice of Hearing,
indicating that her hearing in Newark had been moved up to July 19, 2005. The Notice was
mailed to Rodrigues at the Pennington Street address in Elizabeth, N.J., but was returned to the
Newark Immigration Court marked “unk[nown] at this address” and “return to sender,
attempted NOT KNOWN.” A.R. 599. When Rodrigues failed to appear for her hearing on
July 19, 2005, she was ordered removed in absentia by an Immigration Judge after the agency
established that she was removable as charged. In June, 2012, U.S. Immigration & Customs
Enforcement (“USCIS”) officers confronted Rodrigues with her in absentia order of removal at
her home in Virginia. On April 17, 2013, Rodrigues, through counsel, filed a motion to reopen
removal proceedings, with a supporting affidavit, in Newark Immigration Court pursuant to
1
The couple’s 2005 Form 1040 Income Tax Return listed their address as 5696 Maple Run
Lane, Richmond, VA 23228. A.R. 568.
2
INA § 240(b)(5)(C)(ii), 8 U.S.C. § 1229a(b)(5)(C)(ii), and 8 C.F.R. § 1003.23(b)(4)(ii),
contending that she had not in fact received notice that the date of her hearing had changed,
and that, although she had signed a series of documents in Texas before immigration
authorities released her, only Spanish-speaking officers spoke to her; there were no
Portuguese-speaking individuals available. She argued that her due process rights were
violated when the order of removal was issued in absentia, because she did not receive notice
of the hearing, and because her obligation to keep her address current had never been explained
to her in her native language. Rodrigues asserted that she gave the Pennington Street address
in Elizabeth to immigration authorities because she thought she was being asked for the
address of her group’s destination, and she argued that she was entitled to a hearing on the
disputed factual issues presented by her case pursuant to the Seventh Circuit Court of Appeal’s
decision in Smykiene v. Holder, 707 F.3d 785, 788 (7th Cir. 2013) (alien ordered removed in
absentia entitled to hearing on her motion to reopen where Postal Service returned notice with
notation “Attempted—Not Known,” and alien provided affidavit of non-receipt).
On May 6, 2013, the Immigration Judge denied Rodrigues’ motion to reopen and ruled
that the July 19, 2005 order of removal would remain in effect. The IJ found that notice of the
change in the hearing date was mailed to Rodrigues at the address she provided to immigration
authorities before she was released on bail in May, 2005, and that it was Rodrigues’
responsibility to keep the Immigration Court advised of her current address. The IJ further
found that Rodrigues was not credible. Although she claimed that she was not provided with a
Portuguese translation of her responsibility to keep her address current, the Administrative
Record persuasively established that the proper translations had been provided to Rodrigues in
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her native language. Rodrigues’ unilateral declaration to the contrary was not sufficient to
rebut what the Administrative Record plainly showed. Citing our decision in Santana-
Gonzalez v. Att’y Gen. of U.S., 506 F.3d 274 (3d Cir. 2007), the IJ found that Rodrigues did
not present evidence that she had attempted to correspond with the Newark Immigration Court
concerning her current address, or evidence that she had made arrangements for others to
receive her mail at the Elizabeth, N.J. address and forward it to her in Virginia. The IJ further
declined to sua sponte reopen proceedings, see Matter of J-J-, 21 I. & N. Dec. 976 (BIA 1997),
because Rodrigues lacked credibility and because she did not indicate that she wished to apply
for any form of relief. Rodrigues moved for reconsideration, reiterating that she had not
received a translation in Portuguese when she was processed and charged in Texas. The IJ
denied the motion on July 11, 2013, concluding that there was nothing new to consider.
Rodrigues appealed to the Board of Immigration Appeals, contending that the IJ had
improperly discounted the undisputed fact that Rodrigues did not actually receive notice of the
changed hearing date, again relying on the Seventh Circuit’s decision in Smykiene, 707 F.3d
785. In Smykiene, Rodrigues noted, the court ordered an evidentiary hearing even though the
alien had given an incomplete (and thus incorrect) address to immigration authorities, because
there was no evidence that the alien had attempted to evade the notice of hearing. Rodrigues
argued that the IJ’s adverse credibility determination in her case was flawed because there was
no hearing where the IJ could properly assess her demeanor and candor.
On February 27, 2014, the Board dismissed the appeal. The Board acknowledged that
Rodrigues did not actually receive notice of her July 19, 2005 hearing, and determined that the
issue thus presented was whether she understood the requirement that she provide USCIS with
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the address where she could be contacted, and that she notify USCIS of any changes in her
address or phone number as required by INA § 239(a)(1)(F), 8 U.S.C. § 1229(a)(1)(F). The
Board addressed Rodrigues’ contention that no one spoke Portuguese to her at the Texas
detention facility, and that everyone assumed that she understood Spanish, which she did not,
but agreed with the IJ that the Administrative Record unequivocally contradicted her assertion
that she was not provided with a Portuguese interpreter. Specifically, the Board noted that the
Notice to Appear showed that she was provided oral notice in her native Portuguese language
of the time and place of her hearing which initially was scheduled for July 28, 2005, and the
consequences for failing to appear; and that Form I-213 showed that all forms were served and
translated into Portuguese for her, that she was advised of the requirements to provide a valid
address or change of address and telephone number within 5 days of acquiring one or moving
so that notification of a hearing could be mailed to her, and that she had indicated that she
understood everything that was explained to her.
The Board then noted that Smykiene was not controlling in this circuit, but that, in any
event, it could be distinguished on its facts. The Board reasoned that the alien in Smykiene
had provided an incorrect address by mistake, but Rodrigues’ contention that she gave USCIS
the address where her group would eventually arrive instead of her husband’s address because
she was confused, was undermined by the fact that she had been provided with a Portuguese
interpreter. Accordingly, the Board concluded that the IJ properly declined to rescind the in
absentia order. The Board affirmed the IJ’s order denying reconsideration because the motion
contained no new arguments or evidence.
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Rodrigues has timely petitioned for review. We have jurisdiction under 8 U.S.C. §
1252(a)(1), (b)(1). 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 Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 323-24 (1992).
“Under the abuse of discretion standard, the Board’s decision is reversible only if it is
‘arbitrary, irrational, or contrary to law.’” Barker v. Ashcroft, 382 F.3d 313, 316 (3d Cir.
2003) (quoting Tipu v. Immigration & Naturalization Serv., 20 F.3d 580, 582 (3d Cir. 1994).
We will deny the petition for review. An alien must be provided written notice of her
removal proceedings. 8 U.S.C. § 1229(a)(1). The notice must inform her of, among other
things, “[t]he time and the place at which the proceedings will be held.” Id. at §
1229(a)(1)(G)(i). Written notice must be given to her in person, or, “if personal service is not
practicable, through service by mail ....” Id. at § 1229(a)(1), (2)(A). In determining the
consequences for failure to appear, written notice by the Attorney General is sufficient if
“provided at the most recent address provided” by the alien. Id. at § 1229a(b)(5)(A); 8 C.F.R.
§ 1003.26(d). Although written notice is sufficient if mailed to the most recent address
provided by the alien, see id. at 8 U.S.C. § 1229a(b)(5)(B); 8 C.F.R. § 1003.26(d), the statute
provides that an in absentia removal order may be rescinded, upon a motion to reopen filed at
any time, where the alien demonstrates that she did not receive notice of the hearing. 8 U.S.C.
§ 1229a(b)(5)(C)(ii). This is Rodrigues’ contention, that she did not receive the notice
because, due to language difficulties, she did not give USCIS her husband’s address. In her
brief, she asserts that, while detained in Texas, “immigration officers interrogated her in
English and Spanish … but since she only knew some words in Spanish there was no effective
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communication.” See Petitioner’s Brief, at 7. The documents all were written in English, and
she does not recall that a Portuguese translator was provided to her. Furthermore, after being
reunited with her husband, she misplaced all of the documents that she was handed during her
detention. See id. at 11.
In Santana Gonzalez, 506 F.3d 274, we addressed how an alien claiming non-receipt of
a notice sent by regular mail could rebut the presumption of receipt and thereby receive an
evidentiary hearing on that claim. See id. at 274-75. Santana Gonzalez holds that the fact that
notice was sent by regular mail to the last address provided by the alien does not necessarily
establish that the alien received the notice under § 1229a(b)(5)(C)(ii), because a weaker
presumption of receipt applies when the notice is sent by regular mail. We held that an alien’s
affidavit claiming non-receipt of a notice sent by regular mail, along with corroborating
circumstantial evidence, may be sufficient to raise a factual issue requiring an evidentiary
hearing before the IJ, see id. at 280. Importantly, however, we also noted, in remanding, that it
was significant that the “petitioner failed to follow the clear requirement that she give written
notice of any change in her address, a fact that needs to be considered by the IJ in making the
ultimate decision,” id. at 281. In Ramos-Olivieri v. Att’y Gen. of U.S., 624 F.3d 622, 623 (3d
Cir. 2010), we held that the agency need not rescind an in absentia order of removal where the
alien fails to keep the Immigration Court informed of his current mailing address. Non-receipt
of a notice of a removal hearing does not entitle an alien to rescission if that non-receipt is the
result of the alien’s neglect of his obligation to keep the Immigration Court informed of his
current address. See id. at 623. An alien may not seek rescission of an in absentia order based
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on non-receipt if the non-receipt was caused by a failure to comply with the address
requirement. See id.
Santana Gonzalez does not require a hearing in Rodrigues’ case. No hearing is
required, where, as here, there is no genuine factual dispute. The Notice to Appear informed
Rodrigues that a removal order could be entered in her absence if she failed to appear. A.R.
602-03. It informed her of the requirement to provide her current address on a Form EOIR-33
whenever she moves, because notices of any hearings would be mailed to this address. See id.
Form I-213 also documented Rodrigues’ arrest. The Record of Deportable/Inadmissible Alien,
which was signed on May 30, 2005 by both Senior Patrol Agent Oscar E. Rodriguez and
Examining Officer Samuel M. Torres, specifically stated that, “All forms were served and
translated in the Portuguese language by DHS [Department of Homeland Security] certified
interpreter Pierre Verlaet.” A.R. 595. It further contained this note: Subject was advised of the
EOIR-33 requirements to provide a valid address or change of address and telephone number
within 5 days of acquiring or moving so that notification of hearing or other correspondence be
mailed to the address provided by you. Failure to comply with this requirement or report for
your upcoming immigration hearing, which is set in Newark, N.J. may result in your
deportation in absentia. Subject stated that she understood everything that was explained to
her.
A.R. 596.
Rodrigues’ contention in her motion to reopen that no one spoke Portuguese to her at
the Texas detention facility finds no support whatever in the Administrative Record. The IJ’s
determination that her affidavit in support of her motion to reopen was not credible was not
8
improper in view of the Administrative Record. See Sewak v. Immigration & Naturalization
Serv., 900 F.2d 667, 674 (3d Cir. 1990) (immigration judge has authority to determine
credibility of affidavits and other material submitted with motion to rescind in absentia
removal order). Moreover, Rodrigues has not argued that either the Notice to Appear or Form
I-213 are untrustworthy, nor do they appear to be.
We agree with the Board that Smykiene is not controlling in this circuit and, in any
event, can be distinguished on its facts. In Smykiene, there was nothing in the Administrative
Record to undermine the alien’s assertion that she gave an incomplete and incorrect address by
mistake, 707 F.3d at 786. There was, for example, no Notice to Appear or Form I-213
showing that she had been advised in her native language of the requirement to provide a valid,
current address. Here, in contrast, the factual record is much more complete and ultimately
adequate to decide the case adversely to Rodrigues.
Accordingly, because Rodrigues was informed in Portuguese of the requirement that she
provide USCIS with the address where she could be contacted, and that she notify USCIS of
any changes in her address or phone number, INA § 239(a)(1)(F), 8 U.S.C. § 1229(a)(1)(F),
the agency did not err in denying her motion to reopen and declining to rescind the in absentia
removal order. Ramos-Olivieri, 624 F.3d at 623. We cannot review the IJ’s determination not
to sua sponte reopen the proceedings, as Rodrigues requests, see Petitioner’s Brief, at 20-23,
because she did not pursue this argument before the Board. An alien must exhaust all
administrative remedies as a prerequisite to raising a claim before this Court. 8 U.S.C. §
1252(d)(1); Alleyne v. Immigration & Naturalization Serv., 879 F.2d 1177, 1182 (3d Cir.
1989). Failure to appeal at all available levels constitutes a failure to exhaust, thus depriving
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us of jurisdiction, see id. at 1252(d)(1) (all administrative remedies available “as of right” must
be exhausted). In any event, the agency’s decision not to sua sponte reopen proceedings is
generally unreviewable, see Desai v. Att’y Gen. of U.S., 695 F.3d 267, 269 (3d Cir. 2012).
Similarly, we decline to consider in the first instance Rodrigues’ argument that she was under
duress at the Texas detention center because she was exhausted, hungry, and dehydrated, even
assuming that such an argument has any relevance here.
For the foregoing reasons, we will deny the petition for review.
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