Ketbang, Arn v. Gonzales, Alberto , 165 F. App'x 469 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 6, 2005
Decided January 10, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1561
ARN KETBANG, On Petition for Review of an Order
Petitioner, of the Board of Immigration Appeals
v. No. A79-592-275
ALBERTO R. GONZALES,
Respondent.
ORDER
In 1993 an immigration judge (“IJ”) ordered Arn Ketbang deported
in absentia after he failed to appear at his deportation hearing. In 2004, Ketbang
filed a motion to reopen in which he argued that he did not receive notice to appear
at the 1993 hearing. The IJ denied the motion, and the Board of Immigration
Appeals (“BIA”) summarily affirmed. We deny Ketbang’s petition for review.
Ketbang, a citizen of Thailand, obtained a nonimmigrant work visa
authorizing him to travel to Ft. Lauderdale, Florida, and on to Guantanamo Bay,
Cuba, to work at the United States naval base for a brief period in early 1993. On
February 10, 1993, Ketbang arrived at the Detroit Metro Airport on a flight from
Tokyo, Japan. While Ketbang waited to board a connecting flight to Chicago,
immigration officials asked him why he was traveling there instead of Florida.
Ketbang admitted that, despite his visa, he was going to Chicago to live and work.
No. 05-1561 Page 2
Ketbang was arrested and personally served that same day with an Order to
Show Cause alleging that he procured his visa and entered the United States by
fraud or misrepresentation, and was deportable under former 8 U.S.C.
§ 1251(a)(1)(A) (1988 & Supp. V 1993) (currently codified at 8 U.S.C.
§ 1227(a)(1)(A)) and 8 U.S.C. § 1182(a)(6)(C)(I). He was released after providing the
contact address of “4717 North Winthrop, Chicago, Illinois, 60640,” and signing the
Order to Show Cause, which warned him of the consequences of failing to appear at
future proceedings and advising that he was required to report any address changes
to the INS district office in Chicago within five days. Ketbang used a checkbox on a
form that accompanied the Order to Show Cause to request a deportation hearing
before an IJ. The order explained that notice of his hearing would be “mailed to the
address” he provided. A Border Patrol agent signed a Certificate of Translation and
Oral Notice—a part of the Order to Show Cause—which represents that the order
“was read to the named alien in the English language, which is his/her native
language or a language that he/she understands”; Ketbang signed a Certificate of
Service on the same page indicating that he was personally served with the order.
Ketbang does not dispute that the immigration court attempted repeatedly,
and without success, to provide him notice of his deportation hearing; nor does he
dispute that the postal service attempted to deliver the hearing notices to him. On
March 10, 1993, the immigration court issued a Notice of Hearing in Deportation
Proceedings scheduling Ketbang’s hearing for April 1. That notice was sent via
certified mail and addressed to Ketbang at “4717 North Winthrop, Chicago, Illinois
60640”; it was eventually returned undelivered. When Ketbang failed to appear at
the hearing, a second notice rescheduling the hearing for June 10 was sent to the
same address. The postal service returned this notice stamped “Attempted Not
Known,” and Ketbang again failed to appear. The immigration court then sent a
third notice rescheduling the hearing for July 8. Again it was returned stamped
“Attempted Not Known,” and this time when Ketbang failed to appear the IJ
ordered him deported in absentia.
At some point after Ketbang’s arrest in Detroit, he married a United States
citizen with whom he now has a six- or seven-year-old son; the Department of
Homeland Security located Ketbang when he applied through his spouse for
permanent residency. On May 19, 2004, the Bureau of Citizenship and
Immigration Services issued a “bag and baggage” letter directing Ketbang to report
for removal on July 20. That action prompted Ketbang to move to reopen the 1993
proceedings on the basis that he never received “actual or constructive” notice of his
deportation proceedings and thus was denied due process.
Ketbang submitted an affidavit with his Motion to Reopen in which he avers
that he does not speak English “with any fluency,” and that his encounter with
immigration officials at the Detroit airport was conducted entirely in English with
No. 05-1561 Page 3
no Thai interpreter. During this “interview,” Ketbang says, a “man in a uniform”
informed him that he “would have to attend a deportation hearing in Chicago” and
gave him a “paper” that he did not understand because it was printed in English.
Ketbang explains in his affidavit that the Chicago address he provided was that of a
friend who was gone when he arrived there, and since he did not understand the
“paper,” neither did he realize that he was responsible for informing the
immigration court of his new address. The IJ denied Ketbang’s motion to reopen
without an evidentiary hearing, reasoning that Ketbang received adequate notice
because he was personally served with the Order to Show Cause, which informed
him of his responsibility to keep the immigration court apprised of his address. The
IJ also rejected Ketbang’s claim that he never understood the English-language
Order to Show Cause; the IJ explained that Ketbang “signed a Certificate of
Translation that states that the [Order to Show Cause] was read to him in English
which is a language that he understands.”
Ketbang argues on appeal that he was not afforded a reasonable opportunity
to appear at his deportation hearing because the INS failed to provide a Thai
translation of the Order to Show Cause; he is not “fluent” in English, he says, and
thus he did not have notice of his responsibility to inform the INS of any address
changes. When the BIA summarily affirms the refusal to reopen a deportation
order entered in absentia, we review the IJ’s decision directly and for abuse of
discretion. Uriostegui v. Gonzales, 415 F.3d 660, 663 (7th Cir. 2005). But whether
an immigration proceeding violated due process is a legal question that we review
de novo. Nazarova v. INS, 171 F.3d 478, 482 (7th Cir. 1999).
Although the statute on notice in this case has since been repealed, it still
governs Ketbang’s petition for review because he was ordered deported in absentia
prior to April 1, 1997. See 8 U.S.C. § 1101 n.(2)(a); Ursachi v. INS, 296 F.3d 592,
594 n. * (7th Cir. 2002). An in absentia deportation order may be rescinded upon a
motion filed at any time if the alien demonstrates that he or she did not receive
notice of the deportation hearing. 8 U.S.C. § 1252b(c)(3)(B) (1988 & Supp. V 1993)
(currently codified at 8 U.S.C. § 1229a(b)(5)(C)). The Immigration and
Naturalization Act (“INA”) in 1993 required that notice of a deportation hearing be
“reasonable under all the circumstances,” see id. § 1252(b)(1), repealed by Illegal
Immigration Reform and Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat.
3009, and notice satisfies due process if it is sent to the last known address provided
by the alien, see Wijerante v. INS, 961 F.2d 1344, 1346-47 (7th Cir. 1992). The INA,
however, did not require (and does not presently require) notice if the alien fails to
provide an address at which he or she can be contacted. 8 U.S.C. § 1252b
(a)(1)(F)(i)-(ii), (c)(2) (1988 & Supp. V 1993) (currently codified at 8 U.S.C.
§ 1229(a)(1)(F)(i)-(ii), (c)). Moreover, the Order to Show Cause did not have to be
printed in languages other than English and Spanish. 8 U.S.C. § 1252b(a)(3)(A),
repealed by Illegal Immigration Reform and Responsibility Act of 1996, Pub. L. No.
No. 05-1561 Page 4
104-208, 110 Stat. 3009; see Nazarova, 171 F.3d at 483 (“[T]he logical implication is
that the INS must maintain a stock of forms translated into literally all the tongues
of the human race, and then select the proper one for each potential deportee.”);
cf. In re G– Y– R–, 23 I. & N. Dec. 181, 189 (B.I.A. 2001) (stating that notice
requirements do not require that “the alien . . . understand the Notice to Appear”).
Ketbang’s argument relies entirely on the incorrect assumption that he had a
right to receive a Thai translation of the Order to Show Cause. We rejected a
similar argument in Nazarova and held that due process does not require that
notice of a deportation hearing be in any language other than English so long as the
notice “would put a reasonable recipient on notice that further inquiry is required.”
171 F.3d at 483 (rejecting petitioner’s argument that due process required the
Order to Show Cause to be printed in Russian). Although Ketbang does not address
Nazarova directly, he asserts that the Order to Show Cause failed to put him on
notice that further inquiry was required because he did not comprehend it. The
government responds by repeating the IJ’s assertion that Ketbang signed the
Certificate of Translation “indicating that he understood English and the contents
of the [Order to Show Cause].” However, both the IJ and the government
misrepresent the record. Ketbang did not sign the Certificate of Translation;
rather, he signed the Certificate of Service, which is located below the Certificate of
Translation. The Certificate of Translation is merely a representation that the
Border Patrol agent read the Order to Show Cause to Ketbang in English, a
language he “understands,” that is, the certificate does not represent that Ketbang
acknowledged understanding the order.
Even so, Ketbang nonetheless fails to demonstrate that a reasonable person
in his position would not have thought to investigate further; he knew that he lied
on his visa application, and he knew that he was arrested and subsequently served
with the Order to Show Cause because the INS discovered his lie. Moreover,
Ketbang even acknowledged in his affidavit (11 years after the fact) that the “man
in a uniform” in Detroit told him that he had to “attend a deportation hearing in
Chicago”—a clear indication that he would, at the very least, have some sort of
contact with INS officials in the future. A reasonable person would have taken
prompt action—and not wait 11 years—to find out how and when that next contact
would occur. The IJ, therefore, did not abuse his discretion in concluding that
Ketbang failed to show that he did not have notice of his responsibility to inform the
INS of any address changes. See Murtuza v. Gonzales, 427 F.3d 508, 510-11 (7th
Cir. 2005); Nazarova, 171 F.3d at 483. Proper service of the Order to Show Cause is
therefore not an issue, see In re Grijalva, 21 I. & N. Dec. 27, 35-36 (B.I.A. 1995), and
once Ketbang realized that he would not be residing at “4717 North Winthrop,
Chicago, Illinois 60640,” it was his duty to inform the INS of that fact. 8 U.S.C.
§ 1252b(a)(1)(F)(ii) (1988 & Supp. V 1993) (currently codified at 8 U.S.C.
No. 05-1561 Page 5
§ 1229(a)(1)(F)(ii)); see Sabir v. Gonzales, 421 F.3d 456, 459 (7th Cir. 2005);
Wijeratne, 961 F.2d at1346-47 (7th Cir. 1992).
The petition for review is accordingly DENIED.