Peralta-Cabrera, Olg v. Gonzales, Alberto

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Argued December 14, 2005
Decided January 6, 2006

Before

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-1851

OLGER GONALZO PERALTA-CABRERA, On Petition for Review of
Petitioner, an Order of the Board of
Immigration Appeals
v.
No. A73-014-022
*
ALBERTO R. GONZALES,
Respondent.

ORDER

A few days after entering the United States illegally in July 1994, the
Immigration and Naturalization Service detained Peralta-Cabrera, an Ecuadorean
national, and his traveling companion at O’Hare International Airport in Chicago.
Peralta-Cabrera was charged with deportability as an alien who entered the United
States without inspection, 8 U.S.C. § 1251(a)(1)(B) (1994) (current version at 8
U.S.C. § 1227(a), (b)(1)). His traveling companion telephoned his brother-in-law
who lived in Chicago, Florentine Arias, and asked him to come to O’Hare and help
them seek their release.
According to Peralta-Cabrera, he told the INS agents who arrested him that
he would stay with Arias once released. After Arias arrived, he spoke with the INS

*
Pursuant to Fed. R. App. P. 43(c), Alberto R. Gonzales is substituted for his
predecessor, John D. Ashcroft, as United States Attorney General.
No. 05-1851 Page 2
agents and provided the following address where the INS could contact Peralta-
Cabrera: “841 West Cornelia, Chicago, Illinois 60657.” However, Arias did not
specify that mail should be sent to Peralta-Cabrera “in care of” Arias.

On August 10, 1994, the immigration court issued notice that Peralta-
Cabrera’s deportation hearing was scheduled for November 23, 1994; the notice was
sent to Peralta-Cabrera via certified mail and addressed to him at “841 West
Cornelia, Chicago, Illinois 60657.” The notice was returned to the immigration
court on August 12, 1994, bearing the postal stamp “Attempted Not Known.”
Peralta-Cabrera did not appear at the November 23 deportation hearing, and an IJ
ordered him removed in absentia. The court then mailed a copy of the IJ’s decision
to Peralta-Cabrera at the same address; the decision again was returned to the
immigration court bearing the stamp “Attempted Not Known.”

Nearly ten years later, Peralta-Cabrera applied for adjustment of status
based upon an approved employment-visa petition and moved to reopen his
deportation proceedings, rescind his in absentia deportation order, and change
venue to the immigration court in Bloomington, Minnesota. In a memorandum
supporting his motion, Peralta-Cabrera asserted that service of the hearing notice
was not reasonably calculated to reach him in Chicago because the INS failed to
address the notice to be sent to him “in care of” Arias. He argued, in essence, that it
was the INS agent’s responsibility to ensure that all mail sent to Peralta-Cabrera
was sent “in care of” Arias because the agent had constructive notice that Peralta-
Cabrera was staying with Arias. Peralta-Cabrera included with his motion an
affidavit attesting that he lived at the Corneila address when the immigration court
attempted to mail notice of the hearing and that he never refused the delivery of
any mail.

The IJ denied Peralta-Cabrera’s motion to reopen, reasoning that it was
Peralta-Cabrera’s responsibility to specify that his mail needed to be sent “in care
of” Arias, and that “he can be ‘charged’ with receiving notice which was sent to the
only address he provided.” Peralta-Cabrera appealed to the BIA, which upheld the
denial of the motion to reopen, finding that the motion was sent to Peralta-
Cabrera’s last known address and that he received proper notice of the hearing.

On appeal, Peralta-Cabrera does not contend that the address he provided to
the INS agent was incorrect; he instead argues that it was the INS agent’s fault
that the mail was not addressed “in care of” Arias. The government, however, asks
us to remand the case to the BIA in light of our recent decision Sabir v. Gonzales,
421 F.3d 456 (7th Cir. 2005), to examine whether Peralta-Cabrera can be charged
with receiving notice.

We accept the government’s suggestion. On remand, the BIA should consider
No. 05-1851 Page 3
Sabir and determine whether Peralta-Cabrera thwarted the postal service’s
attempts to deliver notice to him. If the BIA concludes that Peralta-Cabrera did not
thwart delivery of notice, then it should examine whether his motion to reopen
should be granted on the basis that he did not receive notice in accordance with 8
U.S.C. § 1229a(b)(5)(C)(ii). Each side shall bear their own costs.

REMANDED.