[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-1766
ANGEL PENA,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATIONS APPEALS
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Jorge Guttlein and Aranda & Guttlein on brief for
petitioner.
Robert D. McCallum, Jr., Assistant Attorney General, Mark
C. Walters, Assistant Director, Office of Immigration
Litigation, U.S. Dep't of Justice, and Arthur L. Rabin, Trial
Attorney, on brief for respondent.
JANUARY 8, 2002
SELYA, Circuit Judge. This is a petition for review
filed by Angel Pena, a native and citizen of the Dominican
Republic. In it, the petitioner challenges the decision of the
Board of Immigration Appeals (BIA) upholding an immigration
judge's denial of his motion to reopen. The motion to reopen
followed several years after the immigration judge's in absentia
order deporting the petitioner under former section 242B(c) of
the Immigration and Nationality Act (INA), 8 U.S.C. § 1252b(c)
(1994 & Supp. I 1995), repealed by Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), tit. III,
§306, Pub. L. 104-208, 110 Stat. 3009 (1996).
The facts are straightforward. On May 30, 1990, the
petitioner entered the United States without inspection and was
apprehended. He admitted his illegal entry and the Immigration
and Naturalization Service (INS) instituted deportation
proceedings by serving him with an order to show cause (OSC).
The OSC specifically notified the petitioner that he was to
appear for a hearing before an immigration judge at a "date,
time and place to be set by the Immigration Court." The OSC
also advised him that if he failed to appear, he could be
ordered deported in absentia.
The INS released the petitioner on bond and, on June
28, 1990, sent written notice of the time, date, and place of
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the petitioner's hearing to him at the address he had furnished.
The notice was returned by the United States Postal Service with
a notation that delivery had been attempted but that the
addressee (the petitioner) was not known at the address
specified. The INS did not make any further attempt to notify
the petitioner, and he failed to attend the hearing. In his
absence, the immigration judge found by clear, convincing, and
unequivocal evidence that he was deportable on the charges
limned in the OSC and ordered him deported to the Dominican
Republic. Notice of the immigration judge's decision was sent
to the petitioner at the same address. This notification, too,
was returned to the sender.
Several years passed. The petitioner left the United
States for a month and was apprehended while attempting to
reenter. He then tried to reopen his deportation proceedings.
On June 21, 1999, the immigration judge denied his motion on the
ground that, in the original proceeding, "service was sufficient
and notice was proper." As an alternate ground, the immigration
judge found that the petitioner's departure from the United
States after the issuance of the deportation order rendered any
attempt to reopen the proceedings susceptible to the bar of 8
C.F.R. § 3.23(b)(1). On February 28, 2001, the BIA summarily
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affirmed the immigration judge's decision. This petition for
review followed.
We need not tarry. Notice of the date, time, and place
of the deportation hearing was sent to the petitioner at the
address he had furnished. That notice was given in accordance
with the statute then in effect, INA § 242B(a)(2) (now
repealed), and with the applicable regulations, 8 C.F.R. §
3.15(d)(2) (1996). As a procedural matter, then, the petitioner
— who never filed a change of address with the INS — has scant
basis to complain.
The petitioner attempts to blunt the force of this
conclusion by alleging that the INS's former system for
notifying aliens of deportation hearings (now substantially
revised) violated his due process rights. This argument,
however, comes too late: because the petitioner failed to raise
his due process claim before the immigration judge or the BIA,
he is precluded from raising it here. See Mendes v. INS, 197
F.3d 6, 12 (1st Cir. 1999); Bernal-Vallejo v. INS, 195 F.3d 56,
64 (1st Cir. 1999); Martinez-Zelaya v. INS, 841 F.2d 294, 296
(9th Cir. 1988); cf. Athehortua-Vanegas v. INS, 876 F.2d 238,
240 (1st Cir. 1989) (explaining that, as a predicate to judicial
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review, a petitioner must have told the BIA why he contends that
the immigration judge's decision was wrong).
We need go no further.1 The petitioner's due process
claim has not been preserved and the INS appears to have turned
square corners by complying literally with the notification
requirement in effect at the relevant time. Accordingly, the
petition for review is denied and dismissed.
It is so ordered.
1 In particular, we need not reach — and take no view of —
the INS's argument that the petitioner, by departing from the
United States and returning to the Dominican Republic after he
was ordered deported by the immigration judge, divested both the
BIA and this court of jurisdiction.
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