Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
4-29-2005
Ruano-Orellano v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2306
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________________
NO. 04-2306
____________________
BYRON ADELSO RUANO-ORELLANO,
Petitioner
v.
ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA
______________________
On Petition for Review of Order of the
Board of Immigration Appeals
(Board No. A76-283-765)
______________________
Submitted Under Third Circuit LAR 34.1(a)
April 19, 2005
Before: ROTH, FUENTES and BECKER, Circuit Judges
(Filed: April 29, 2005)
________________________
OPINION OF THE COURT
________________________
BECKER, Circuit Judge.
Byron A. Ruano-Orellano petitions for review of a final order of deportation filed
by the Board of Immigration Appeals (“BIA”) in which the BIA adopted and affirmed the
Immigration Judge’s (“IJ”) denial of Ruano’s motion to reopen his deportation
proceedings. What is at issue is whether the IJ and the BIA abused their discretion in
denying Ruano’s motion to reopen his in absentia removal order because Ruano failed to
establish that he did not receive proper notice of his master calendar hearing. The parties
are fully familiar with the background facts and procedural history, hence we need not set
them forth, and limit our discussion to our ratio decidendi. For the reasons that follow,
we will deny the petition.
The motion to reopen was filed with the IJ on April 3, 2003, over five years after
Ruano was ordered deported. In the motion, Ruano claimed that his attorney had not
received the notice of the August 21, 1997 hearing. He attached to the motion copies of
the envelope and accompanying certified mail and return-receipt labels in which the
notice of the August 21, 1997 hearing was sent to his counsel. In denying the motion, the
IJ found that neither Ruano nor his former counsel, Jaime Castiblanco, actually denied
receiving the notice of the hearing. He wrote:
Notice of the new hearing was . . . mailed to both Ruano and Castiblanco by
certified mail on July 24, 1997. The notice to Castiblanco was returned to
the immigration court for insufficient postage. The additional postage was
added on August 5, and the letter was re-mailed to Castiblanco. Thereafer,
the letter was not returned as undeliverable.
Without explaining the July 22, 1997-postmark on the envelope . . .
Ruano’s new attorney suggests that the hearing notice was first mailed to
Castiblanco on August 5, then returned for insufficient postage but never
re-mailed. A better interpretation of the evidence is that the postal meter
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date-stamp, July 22, was incorrect and the hearing notice was actually
mailed on July 24 and then re-served with the additional postage on August
5. Moreover, attorney Catiblanco does not deny receiving the hearing
notice.
Additionally, the IJ pointed out that Ruano had not specifically denied receiving the
hearing notice, as his motion contains no affidavit or other statement. Opining that “[t]he
representations made by Ruano’s [current] attorney are not evidence and are not entitled
to any evidentiary weight,” the IJ concluded that Ruano failed to establish that he did not
receive proper notice of the August 21, 1997 hearing. The BIA affirmed.
We review the denial of a motion to reopen for abuse of discretion. INS v.
Doherty, 502 U.S. 314, 323 (1992) (using the abuse-of-discretion standard “regardless of
the underlying basis of the alien’s request for relief” to review a denial of a motion to
reopen)(quoting INS v. Abudu, 485 U.S. 94, 99 n.3 (1988)); Xu Yong Lu v. Ashcroft, 259
F.3d 127, 131 (3d Cir. 2001). Under that standard, a denial of a motion to reopen will be
overturned only if it is “arbitrary, irrational or contrary to law.” Tipu v. INS, 20 F.3d 580,
582 (3d Cir. 1994). We find no abuse.
The parties do not dispute that if an alien, who has received written notice of his
deportation hearing, fails to appear, he “shall be ordered removed in absentia if the [INS]
establishes by clear, unequivocal, and convincing evidence that the written notice was so
provided and that the alien is removable.” 8 U.S.C. § 1229a(b)(5)(A)(2000), or that “[t]he
written notice by the Attorney General shall be considered sufficient for purposes of this
subparagraph if provided at the most recent address” provided by the alien in accordance
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with the INA. Id. What is at issue is whether Ruano received notice. An in absentia
order may be rescinded:
(C)(ii) upon a motion to reopen filed at any time if the alien demonstrates
that the alien did not receive notice in accordance with paragraph (1) or (2)
of section 1229(a) of this title or the alien demonstrates that the alien was in
Federal or State custody and the failure to appear was through no fault of
the alien.
Id.
The record, however, supports the IJ’s conclusion that the notice of the hearing
was mailed to both Ruano and his attorney. The record does not contain any statement
from the (former) attorney, Mr. Castiblanco. Moreover, in the IJ’s decision he noted that
Ruano himself had not specifically denied receiving the hearing notice. Indeed, the
hearing notice reflected that it was sent to both Ruano and his attorney. In addition, the
record contains a certified mail label bearing Ruano’s address. Thus, the IJ correctly
found that Ruano had failed to establish non-receipt of the hearing notice and properly
denied his motion to reopen. Ruano’s attempt to deflect this evidence by a statement to
the BIA (that he did not received notice of the hearing) fails – the statement is unsworn
and, at all events, essentially implies only that his house was in disarray and that, even if
the notice was delivered, he never saw it.
The petition for review will be denied.
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