Luisa Chavajay-Hernandez v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUISA CHAVAJAY-HERNANDEZ, No. 17-73394
Petitioner, Agency No. A072-159-877
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 4, 2019**
Seattle, Washington
Before: GOULD and NGUYEN, Circuit Judges, and R. COLLINS,*** District
Judge.
Petitioner Luisa Chavajay-Hernandez appeals the decision of the Board of
Immigration Appeals (BIA) denying her motion to reopen her removal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
proceedings. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for an abuse
of discretion, Agonafar v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017), we deny
the petition for review.
Chavajay is a native and citizen of Guatemala. In August 1993, she entered
the United States without inspection. She then could not read or write and she
spoke basic Spanish. A few months after her entry, she was arrested at a worksite
raid in Washington. The record contains an Order to Show Cause (OSC)
indicating that it was personally served on Chavajay and read aloud to her in
Spanish. The OSC includes Chavajay’s signature and thumbprint, and it is
addressed to a post office box belonging to her employer.
After her arrest, Chavajay was not detained. She moved to Florida without
giving an address to the office of the Immigration Judge (IJ). The office of the IJ
sent a Notice of Hearing via certified mail to the post office box listed on the OSC.
The Notice was returned to the sender. Chavajay did not attend her removal
proceedings and she was ordered deported in absentia.
The BIA did not abuse its discretion when it concluded that Chavajay
received adequate notice of her hearing. Notice may be actual or constructive.
Khan v. Ashcroft, 374 F.3d 825, 828 (9th Cir. 2004); Farhoud v. I.N.S., 122 F.3d
794, 796 (9th Cir. 1997). Chavajay received actual notice of her OSC, as
evidenced by the unchallenged signature and thumbprint in the spaces marked for
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the alien’s signature and thumbprint. The OSC was also read aloud to her in
Spanish, a language she understood. Any other alleged irregularities in the OSC or
errors in the corresponding I-213 have no bearing on whether Chavajay was
personally served with the OSC.
Chavajay received constructive notice of her Notice of Hearing. When
notice is sent via certified mail to an alien’s last known address, there is a
presumption of notice and proof of actual service or receipt is not required. Arrieta
v. I.N.S., 117 F.3d 429, 431 (9th Cir. 1997). Chavajay did not rebut this
presumption with substantial and probative evidence of non-delivery or improper
delivery. See id. at 431–32. Even if the Notice of Hearing was sent to an address
that she did not provide, Chavajay was aware of her obligation to update her
address with the office of the IJ.
Chavajay’s due process claim also fails. Actual notice satisfies due process,
Khan, 374 F.3d at 828, and Chavajay received actual notice of the requirement to
update her address. The OSC informed Chavajay in English and in Spanish that
she was required to provide the office of the IJ with an address where she should
could be contacted and to update her address within five days of any move. The
OSC was read aloud to her in Spanish.
Finally, Pereira v. Sessions, 138 S. Ct. 2105 (2018), does not require us to
remand Chavajay’s case. In Pereira, the Supreme Court held that when a Notice
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to Appear (NTA) does not specify the time and place of an alien’s removal
hearing, it does not trigger the stop-time rule for purposes of cancellation of
removal. Id. at 2118. Pereira’s holding does not apply to Chavajay. In Pereira,
the Supreme Court considered the notice requirements of the Immigration and
Nationality Act (INA) after the passage of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA). Id. at 2110. The Court did not
consider the pre-IIRIRA statutory scheme under which Chavajay was ordered
deported. Before IIRIRA, the INA permitted the time and place of the hearing to
be sent in a separate Notice of Hearing after the initial OSC. By contrast, the post-
IIRIRA INA expressly requires NTAs to include the time and place of the hearing.
Compare 8 U.S.C. § 1252b(a)(2)(A)(i) (1994), with 8 U.S.C. § 1229(a)(1)(G)(i)
(2018).
PETITION DENIED.
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