Damodarbhai Patel v. Eric Holder, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1423, 08-2017
D AMODARBHAI P ATEL,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A73-219-452
A RGUED JANUARY 28, 2009—D ECIDED A PRIL 24, 2009 Œ
P UBLISHED M AY 1, 2009
Before B AUER, R IPPLE, and T INDER, Circuit Judges.
T INDER, Circuit Judge. An immigration judge ordered
Damordabhai Patel removed in absentia after he failed to
appear at a 2001 hearing. Patel twice moved to reopen,
Œ
This opinion was initially released in typescript.
2 Nos. 08-1423, 08-2017
claiming that he never received notice of the hearing
because the Immigration and Naturalization Service
mailed the notice to the wrong address. The immigration
judge denied the motions, and the BIA affirmed. Patel
appeals, but because he challenges only the BIA’s discre-
tionary decision to deny reopening, we dismiss his
petition for lack of jurisdiction.
Background
Patel, who is a citizen of India, entered the United States
without permission in 1994 and applied for asylum that
same year. In 1998, the INS attempted to set a hearing on
his asylum claim by mailing a notice to appear to his last
known address, in Blue Springs, Missouri. When Patel
notified the INS that he had changed his address, the
INS sent a second notice via certified mail to his new
home in New York. Someone (precisely who is disputed)
signed the return receipt with Patel’s surname, though
the first name on the receipt is illegible.
In November 2000, the INS mailed a third notice to
appear to Patel’s New York address, informing him that a
hearing had been scheduled for March 2, 2001. This
notice was returned as “undeliverable.” Patel did not
appear at the hearing and so the IJ ordered him removed
in absentia. The order of removal, mailed to his New
York address, was also returned as undeliverable.
In the meantime, Patel had moved to Chicago, where,
in 2007, immigration officials found and detained him.
Patel, aided by Attorney Mazher Shah Khan, promptly
Nos. 08-1423, 08-2017 3
moved to reopen the removal proceedings, arguing that
he never received the notice to appear. According to
Patel, he had moved to Chicago in 1998 and in early 1999
had written to the INS to report his new mailing address.
In support of this claim, Patel submitted only a photo-
copied envelope addressed to the INS and bearing a
postage stamp of January 5, 1999. The government re-
sponded that the envelope was a fake: its postage stamp
was printed using Khan’s stamp meter, which hadn’t been
installed until 2001. The government also argued that
Patel had received at least the second notice to appear,
since someone had signed the return receipt with his
last name.
The IJ denied the motion, finding that Patel actually
received the notice to appear at his New York address.
Although one page of the IJ’s decision is missing from
the administrative record, it is clear that the IJ was unper-
suaded by Patel’s explanation that another person with
the last name of Patel must have signed the return re-
ceipt. Even if Patel himself had not signed the return
receipt, the IJ continued, the notice was sent shortly
after Patel’s move to Chicago and would likely have
been forwarded to his new address. Moreover, the IJ
observed that Patel was required to provide immigration
authorities with his current address, and the only evid-
ence that he had done so—the photocopied enve-
lope—was fraudulent. The IJ therefore concluded that
Patel had failed to meet his burden of proof and that
“the evidence he has submitted likely is fraudulent and
therefore not worthy of belief.”
4 Nos. 08-1423, 08-2017
Patel, with new counsel, appealed to the Board of
Immigration Appeals. The BIA rejected Patel’s arguments,
noting that he had provided nothing beyond the fraudu-
lent envelope in support of his claim that he had
informed the government of his move to Chicago before
the notice was mailed.
The next day, Patel filed a second motion to reconsider
and reopen with the BIA. In support of this motion, he
claimed that the New York address used by the INS
did not match his real New York address and that he
never filed a change-of-address form with the postal
service when he moved to Chicago. He also submitted
an affidavit from the New York property’s owner, who
asserted that Patel did not live there at the time the
notice was signed for. Finally, Patel contended that
Khan was ineffective because he had fabricated the enve-
lope that purportedly showed Patel had given immigra-
tion authorities his Chicago address. Patel insisted that
he had no knowledge of the fake envelope because he
was in detention at the time Khan submitted it to the IJ.
He acknowledged, however, that while in detention he
had signed an affidavit confirming that he had mailed
a change-of-address form in the fake envelope.
The BIA denied Patel’s second motion as well. The
BIA discounted the property-owner’s affidavit, since
there was no proof that the affiant actually owned the
New York property. Moreover, the BIA noted that the
affidavit reported that the New York property was
vacant from 1997 to 2000, contradicting Patel’s claim that
he lived there until December, 1998. And the BIA observed
Nos. 08-1423, 08-2017 5
that the affidavit in which Patel swore that he had
mailed the suspect envelope belied his claim that he had
no idea it was fabricated. The BIA therefore concluded
that Patel had failed to identify any error in its first deci-
sion and had not provided any new evidence material
to his case.
Analysis
On appeal, Patel challenges the denial of his motions to
reopen. Although the government does not press the
argument, we may reach the merits of Patel’s case only if
we have jurisdiction over his petition for review. We do
not. Claims of abuse of discretion in deciding motions to
reopen are outside our jurisdiction. See Huang v. Mukasey,
534 F.3d 618, 620 (7th Cir. 2008); Kucana v. Mukasey, 533
F.3d 534, 535-37 (7th Cir. 2008). Instead, only constitutional
claims and questions of law are reviewable on appeal. See
8 U.S.C. § 1252(a)(2)(D); Huang, 534 F.3d at 620. Legal
questions include challenges to the BIA’s interpretation
of a statute, regulation, or constitutional provision, claims
that the BIA misread its own precedent or applied the
wrong legal standard, or claims that the BIA failed to
exercise discretion at all. Adebowale v. Mukasey, 546
F.3d 893, 896 (7th Cir. 2008). At issue, then, is whether
either of Patel’s two challenges to the BIA’s decision
(addressed below) presents a constitutional claim or
question of law.
Patel first contends that the BIA erred in concluding
that he received actual notice of the hearing date, placing
too much weight on the certified mail receipt signed
6 Nos. 08-1423, 08-2017
“Patel.” This argument does not present a constitutional
claim, since due process does not require that the alien
“actually receive” notice of removal proceedings, but
only that the government attempt to deliver notice to
the last address provided by the alien. Joshi v. Ashcroft,
389 F.3d 732, 735 (7th Cir. 2004). Although Patel’s brief
suggests at one point that the New York address used by
the INS differed from the one that he provided for the
purpose of proper service, Patel does not develop that
claim into a due process challenge. Instead, his brief
repeatedly states that the issue in this case is whether
he “actually received” notice. Given Patel’s failure to
develop a due process argument based on lack of suf-
ficient notice, he has not presented a “colorable” constitu-
tional claim. Zamora-Mallari v. Mukasey, 514 F.3d 679, 696
(7th Cir. 2008).
Patel’s notice argument also does not present a ques-
tion of law, since actual receipt is a question of fact that
weighs into the BIA’s discretionary decision to reopen an
order of removal. Derezinski v. Mukasey, 516 F.3d 619, 621-
22 (7th Cir. 2008). Rather, the BIA’s weighing of the
evidence to conclude that Patel was not entitled to re-
opening based on lack of notice involves a discretionary
decision that lies outside our jurisdiction. See Kucana, 533
F.3d at 537 (concluding that a challenge to the BIA’s
determination that the petitioner’s country conditions
had not worsened to the extent of justifying reopening
was non-reviewable); Zamora-Mallari, 514 F.3d at 696(finding no constitutional claim in the petitioner’s argu-
ment that the BIA gave insufficient weight to his life
circumstances).
Nos. 08-1423, 08-2017 7
But even if we had jurisdiction, Patel’s claim would fail.
He was required to keep the government apprised of his
current address—that is why the fraudulent envelope
purporting to change his address was crucial to his case.
See 8 U.S.C. § 1305(a); Derezinski, 516 F.3d at 621. The
government therefore had no reason to believe that Patel
lived anywhere other than at the New York address. As
this court has observed, “a certified mailing to an
address known to be current will ordinarily discharge
the government’s duty of notice.” Id.Patel next contends that, in assessing his second
motion to reopen, the BIA erred in concluding that he
knew of and was involved in Khan’s falsification of the
change-of-address envelope. This argument also fails to
raise a constitutional claim or question of law and there-
fore lies outside our jurisdiction. See Jezierski v. Mukasey,
543 F.3d 886, 890 (7th Cir. 2008) (holding that we lacked
jurisdiction to review BIA’s conclusion that lawyer was
not ineffective in failing to submit a brief to the BIA).
Patel argues only that the BIA improperly relied on his
signed affidavit attesting to the validity of the fake enve-
lope because that affidavit, like the envelope, was prepared
by Khan while Patel was in detention. But this is, again, a
quarrel with the weight the BIA placed on the affidavit.
Patel does not point to any rule of law that required the
BIA to ignore the affidavit, nor is there any. The BIA’s
conclusion that Patel participated in his lawyer’s fraud is
therefore beyond our review. Jezierski, 543 F.3d at 890; see
also Huang, 534 F.3d at 620; Kucana, 533 F.3d at 535-37.
D ISMISSED.
8 Nos. 08-1423, 08-2017
R IPPLE, Circuit Judge, concurring. I concur in the judg-
ment of the court because it is consonant with the prece-
dent of this circuit and therefore constitutes the applicable
rule of decision under the doctrines of stare decisis and
precedent. I write separately to suggest, respectfully, that,
as our court strays more and more from the view of the
majority of circuits and from the view of the agency
charged with the administration of the statute on an
important question threatening the even-handed ap-
plication of the immigration law, the time has come for
higher appellate authority to determine whether the rest of
the Nation now should follow our view or whether we
should re-join the rest of the Nation. See Supreme Court
Rule 10.
The central issue in this case is the interpretation of the
“door-closing” provision in 8 U.S.C. § 1252(a)(2)(B)(ii).
That section provides that:
no court shall have jurisdiction to review any decision
or action of the Attorney General or the Secretary
of Homeland Security the authority for which is
specified under this subchapter to be in the discre-
tion of the Attorney General or the Secretary of Home-
land Security, other than the granting of relief under
section 1158(a) of this title.1
This circuit initially took the position that section
1252(a)(2)(B)(ii)’s jurisdictional bar applied to challenges
1
Section 1158(a) pertains to asylum relief; it is not implicated
in this case because the IJ never made a decision about
Mr. Patel’s eligibility for asylum.
Nos. 08-1423, 08-2017 9
of discretionary decisions only when the IJ was exercising
discretion that had been granted by statute; we did not
apply the door-closing provision to bar jurisdiction over
exercises of discretion conferred only by regulation. See
Singh v. Gonzales, 404 F.3d 1024, 1026-27 (7th Cir. 2005)
(holding that section 1252(a)(2)(B)(ii) did not bar review
of an IJ’s denial of a motion to reopen immigration pro-
ceedings).
We since have reversed course, however, beginning
with our decision in Ali v. Gonzales, 502 F.3d 659 (7th
Cir. 2007). In Ali, the petitioner sought review of an IJ’s
decision to deny his motion to continue his removal
proceedings, which he had sought so that he could
pursue adjustment of his immigration status. The peti-
tioner argued that the door-closing provision did not
divest us of jurisdiction because, by its terms, that provi-
sion precluded review only of decisions or actions that
are committed to the Attorney General’s discretion by
“this subsection” of the statute: that is, 8 U.S.C. §§ 1151-
1381. The immigration statute makes no mention of
motions to continue; the IJ’s discretion to grant a con-
tinuance arises not from the statute but from a regula-
tion, 8 C.F.R. § 1003.29. The petition argued that, therefore,
the door-closing provision does not apply to review of
an IJ’s decision to deny a motion to continue. Although
the Government agreed with the petitioner’s position,
we nevertheless rejected it. We reasoned that, although
the discretion to grant or deny a continuance was not
conferred by statute, the authority to do so stemmed from
8 U.S.C. § 1229a, which “confers upon immigration judges
the authority to conduct removal proceedings.” Ali, 502
10 Nos. 08-1423, 08-2017
F.3d at 660. Without explicitly overruling Singh, we
concluded that this statutory nexus was sufficient to
trigger the door-closing provision. We reached this con-
clusion in light of 8 U.S.C. § 1252(a)(2)(B)(i), which pro-
vides that the IJ’s final determination on an application for
adjustment of status is unreviewable by the courts:
“Adjustment of status determinations are unreviewable
under § 1252(a)(2)(B)(i); the IJ’s continuance determina-
tion is interim to Ali’s contemplated adjustment of status
application, and interim orders entered along the road
to an unreviewable final order are themselves
unreviewable.” Ali, 502 F.3d at 661.2 In subsequent cases,
we have extended our holding in Ali to bar review of not
only motions to continue, but also motions to reopen. See
Huang v. Mukasey, 534 F.3d 618, 620-21 (7th Cir. 2008);
Kucana v. Mukasey, 533 F.3d 534, 536-39 (7th Cir. 2008);3
Jezierski v. Mukasey, 543 F.3d 886 (7th Cir. 2008).
2
One might question whether this reasoning has any force
in the context of asylum proceedings, final decisions about
which are subject to judicial review. See Kucana v. Mukasey, 533
F.3d 534 (7th Cir. 2008) (Cudahy, J., dissenting). Nevertheless,
we subsequently have held that the door-closing provision
applies with equal force to discretionary decisions made during
asylum proceedings. See Huang v. Mukasey, 534 F.3d 618, 620-21
(7th Cir. 2008) (holding that section 1252(a)(2)(b)(ii) bars
review of an IJ’s denial of a motion to reopen asylum pro-
ceedings); Kucana, 533 F.3d at 536-39 (same).
3
In Kucana, we finally did overrule Singh explicitly, in part
because we recognized that its holding was “not tenable” after
our decision in Ali. Kucana, 533 F.3d at 537-38.
Nos. 08-1423, 08-2017 11
Our broad interpretation of section 1252(a)(2)(B)(ii)’s
scope puts us on the distinct minority side of an
intercircuit split over the applicability of the door-closing
provision to claims challenging the exercise of discretion
granted by regulation rather than by statute. The Eighth
and Tenth Circuits have reached the same conclusion
that we have in the context of a denial of a continuance.
See Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir.
2004); Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir.
2004). Every other circuit, as well as the Attorney General,
has reached the opposite conclusion: that section
1252(a)(2)(B)(ii) only bars review of decisions made in the
exercise of discretion conferred by statute—specifically
8 U.S.C. §§ 1151-1381. See Lendo v. Gonzales, 493 F.3d 439,
441 n.1 (4th Cir. 2007); Alsamhouri v. Gonzales, 484 F.3d 117,
122 (1st Cir. 2007); Zafar v. Att’y Gen., 461 F.3d 1357,
1360-62 (11th Cir. 2006); Khan v. Att’y Gen., 448 F.3d 226,
232-33 (3d Cir. 2006); Ahmed v. Gonzales, 447 F.3d 433,
436-37 (5th Cir. 2006); Sanusi v. Gonzales, 445 F.3d 193,
198-99 (2d Cir. 2006); Abu-Khaliel v. Gonzales, 436 F.3d 627,
633-34 (6th Cir. 2006); Medina-Morales v. Ashcroft, 371 F.3d
520, 528-29 (9th Cir. 2004). The majority of circuits read
section 1252(a)(2)(B)(ii) to bar review only where both the
authority and the discretion to make the decision were
granted by statute. Hence, these eight circuits, and the
Attorney General, have concluded that the courts do
have the authority to review decisions on motions to
continue and motions to reopen, because the discretion
to grant or deny them is conferred not by statute but
by regulation.
12 Nos. 08-1423, 08-2017
Notably, no other circuit has determined, as we did in
Kucana, that section 1252(a)(2)(B)(ii) is a bar to our
review of the denial of a motion to reopen in an asylum
case where the decision affects the alien’s right to review
of substantive decisions of the Board of Immigration
Appeals that are based on a mistake or misunder-
standing of the factual basis of a claim—decisions that the
Supreme Court has analogized to motions under Rule 60
of the Federal Rules of Civil Procedure. See Stone v. INS,
514 U.S. 386, 401 (1995); see also Kucana, 533 F.3d 534, 539-40
(Ripple, J., concurring dubitante). In fact, even the Tenth
Circuit, which agrees with us that motions to continue
are not reviewable, has drawn the line at motions to
reopen. See Ntiri v. Gonzales, 227 Fed. Appx. 749, 752 (10th
Cir. 2007) (“We have jurisdiction to review the denial of a
motion to reopen, at least where judicial review of the
underlying order is not precluded.” (citing Infanzon v.
Ashcroft, 386 F.3d 1359, 1361-62 (10th Cir. 2004))).
The immigration laws of the United States should be
administered even-handedly across the entire Nation. No
attribute of sovereignty rests in a federal circuit to go its
own way and subject individuals to treatment different
from what they would receive from the United States
Government in any other part of the Country. This princi-
ple is especially true in areas such as immigration and
asylum law where decisions of the administrative
process affect so drastically the course of the human lives
impacted by the decision. I respectfully suggest that the
holdings of Ali and its progeny should be re-examined
before their dominion is spread even further afield.
Nos. 08-1423, 08-2017 13
Turning briefly to the facts of this case, I believe that
Mr. Patel preserved his due process claim, which we
have jurisdiction to hear because it is a constitutional
claim. 8 U.S.C. § 1252(a)(2)(D); see also Jezierski, 543 F.3d
at 890 (noting that a claim alleging insufficient notice in
violation of due process would be reviewable by this
court). However, because the IJ determined, as a matter
of fact, that the Government had in fact sent the notice
to the address supplied by Mr. Patel and since there
was sufficient evidence to support that determination,
I do not believe that this contention can survive the
deferential review that we owe the IJ on such a fact-
bound conclusion.4 Accordingly, I would deny Mr. Patel’s
4
Among other things, the IJ noted that Mr. Patel admitted in his
first motion to reopen that he lived at “4 Wedgewood Lane,
Miller Place, Long Island City, NY 11764, until December 31,
1998.” A.R. 135. This was the address to which the notice was
sent. This admission contradicts Mr. Patel’s argument before
the BIA and before this court that he never lived in Long
Island City. The IJ also found that a return receipt for the
notice was signed by someone with the surname Patel.
As for Mr. Patel’s claim that he submitted a change-of-address
form to the INS when he moved to Chicago in 1999, the IJ’s
decision to disbelieve it is also supported by substantial evi-
dence. The only proof that Mr. Patel provided to show that he
submitted the form was his own affidavit and a photocopy of
a postmarked envelope, which he later admitted was forged.
The IJ acted reasonably in finding that Mr. Patel had fabricated
this claim.
In short, the evidence in the record supports the IJ’s finding
that proper notice was mailed to the last address that Mr. Patel
(continued...)
14 Nos. 08-1423, 08-2017
petition on the merits rather than dismiss it for lack of
jurisdiction.
4
(...continued)
provided. This is all that due process requires. Joshi v. Ashcroft,
389 F.3d 732, 736 (7th Cir. 2004).
5-1-09