German Indenbaum v. Eric Holder, Jr. , 557 F. App'x 546 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0172n.06
No. 13-3972
FILED
UNITED STATES COURT OF APPEALS Mar 03, 2014
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
GERMAN INDENBAUM, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, ) APPEALS
)
Respondent. )
)
)
BEFORE: DAUGHTREY, SUTTON, and DONALD, Circuit Judges.
PER CURIAM. German Indenbaum, a native and citizen of Russia, petitions this court
for review of an order of the Board of Immigration Appeals (BIA) denying his motion for sua
sponte reopening of his removal proceedings.
In 1996, Indenbaum entered the United States as a nonimmigrant visitor with
authorization to remain for a temporary period not to exceed six months. On March 4, 2005, the
Department of Homeland Security personally served Indenbaum with a notice to appear charging
him with removability as a nonimmigrant who had remained in the United States for longer than
permitted. See 8 U.S.C. § 1227(a)(1)(B). After Indenbaum failed to appear for his first removal
hearing on July 31, 2007, an immigration judge (IJ) ordered his removal in absentia.
In 2011, nearly four years later, Indenbaum moved to reopen his removal proceedings
and rescind the in absentia removal order, claiming that he did not receive notice of the hearing
No. 13-3972
Indenbaum v. Holder
or the removal order. Both notices were addressed to his then-current residence, 8137 Keating
Apt. 2A, Skokie, Illinois, but were returned to the immigration court and stamped as
“ATTEMPTED – NOT KNOWN” and “UNABLE TO FORWARD.” Indenbaum and his wife,
Lolita Priede, submitted affidavits stating that they lived together at the Keating address from
March 2005 through the end of 2007. In response, the government submitted Priede’s
naturalization application, signed under penalty of perjury, indicating that she lived at the
Keating address only from March 1998 to May 2006. That application also indicated that she
was not living at the Keating address when the notices were sent in July 2007. The IJ found that
Indenbaum’s and Priede’s affidavits were false, a finding further supported by the purported
building manager’s assertion that they lived in apartment 2N rather than apartment 2A. Denying
the motion to reopen and rescind, the IJ concluded that Indenbaum received proper notice of the
hearing because the immigration court sent the hearing notice to the address that he had provided
and he had not submitted a change of address.
Indenbaum appealed the IJ’s denial of his motion to reopen and rescind. The BIA upheld
as not clearly erroneous the IJ’s finding that Indenbaum was not residing at the Keating address
when the immigration court issued the hearing notice and the removal order in 2007. Dismissing
the appeal, the BIA agreed with the IJ that Indenbaum received all the notice to which he was
entitled because the immigration court mailed the hearing notice to the address provided by him
and that his failure to receive notice of the hearing was due to his failure to update his address.
Indenbaum then filed a second motion to reopen his removal proceedings, asking the BIA
to rescind the in absentia removal order, again arguing a lack of notice and also a failure to
provide him with a hearing on the question of notice. The BIA concluded that Indenbaum’s
-2-
No. 13-3972
Indenbaum v. Holder
motion was barred numerically because it raised the same grounds as the earlier motion and,
therefore, declined to exercise its discretion to reopen sua sponte to avoid the number bar.
Indenbaum appeals the BIA’s decision not to exercise its discretion to reopen his removal
proceedings sua sponte. As he acknowledges, published circuit precedent forecloses his appeal.
In Gor v. Holder, we held that “we lack jurisdiction to review the BIA’s denial of the petitioner's
motion to reopen sua sponte.” 607 F.3d 180, 188 (6th Cir. 2010). Indenbaum asks us to
reexamine that holding in light of Kucana v. Holder, 558 U.S. 233 (2010). On its own terms,
Kucana does not speak to whether courts may review the decision of the BIA not to exercise its
discretion to reopen removal proceedings sua sponte. Id. at 251 n.18 (stating that the decision
“express[ed] no opinion on whether federal courts may review the Board's decision not to reopen
removal proceedings sua sponte”). At all events, Gor already considered and rejected the
argument that Indenbaum makes here. 607 F.3d at 188 (explaining that “[t]hose decisions
[holding that this court lacks jurisdiction to review BIA decisions not to reopen removal
proceedings sua sponte] remain the law of this circuit” after Kucana).
Accordingly, we dismiss Indenbaum’s petition for review for lack of jurisdiction.
-3-