Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-22-2006
Carrasco-Potes v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3635
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 05-3635
__________
RICARDO CARRASCO-POTES,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
__________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A95-820-893)
__________________
Submitted under Third Circuit LAR 34.1(a)
on September 29, 2006
BEFORE: RENDELL, ROTH and GIBSON*, Circuit Judges
(Opinion filed November 22, 2006)
OPINION
*Honorable John R. Gibson, Senior Eighth Circuit Judge, sitting by designation.
ROTH, Circuit Judge:
Ricardo Carrasco-Potes petitions for review of the order of the Board of Immigration
Appeals (BIA) affirming the Immigration Judge’s (IJ) denial of his motion to reopen his
removal proceedings held in absentia. We will deny the petition.
Carrasco-Potes, a native and citizen of Guayaquil, Ecuador, was admitted into the
United States in 1985 on a B-2 visitor’s visa, which authorized him to remain in the country
for six months. He unlawfully remained in the United States beyond the six month period.
On November 16, 2002, he was arrested and subsequently sentenced to one year of probation
for entering an airport area in violation of security requirements. Upon his arrest, Carrasco-
Potes provided certain information to immigration officials, including his address of 31
Northview Terrace, Garfield, New Jersey.
Removal proceedings were initiated against him. He was personally served at 31
Northview Terrace, Garfield, New Jersey, with a Notice to Appear for his removal
proceeding. On March 2, 2004, a second notice, which included the date, time, and location
of his hearing, was mailed to this same address. Carrasco-Potes, however, failed to appear
at his hearing on March 18, 2004. Pursuant to 8 U.S.C. § 1229a(b)(5)(A), the IJ ordered his
removal from the United States in absentia.
On July 12, 2004, Carrasco-Potes married Maribel Rodriguez, a United States citizen.
On July 15, 2004, he filed a motion to reopen removal proceedings with the IJ. In denying
his motion, the IJ concluded that Carrasco-Potes failed to establish that he did not receive
proper notice of his hearing date, in light of the fact that the Notice to Appear had been
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personally served and the hearing notice was subsequently mailed to the address listed on the
Notice to Appear. Carrasco-Potes appealed this decision to the BIA. In affirming the
decision of the IJ, the BIA agreed that Carrasco-Potes received proper notification of his
removal proceedings, as notice was mailed to the address that he had provided to
immigration officials in 2002. Furthermore, there was no evidence in the record
demonstrating that he had in fact sent a notice of change in address to the immigration court.
The BIA also noted that a reopening of the proceedings was not warranted based on his
marriage to a U.S. citizen, since his motion was not timely filed under the general time
limitations governing motions to reopen. See 8 C.F.R. § 1003.2(c)(2). Carrasco-Potes timely
filed a petition for review with this court, in which he seeks relief from the denial of his
motion to reopen removal proceedings held in absentia.
We have jurisdiction to review final orders of the BIA under 8 U.S.C. § 1252. Denials
of motions to reopen removal proceedings fall within the discretion of the BIA. See 8 C.F.R.
§ 1003.2(a). Thus, we review the BIA’s denial of Carrasco-Potes’ motion to reopen for
abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). Under this
standard, the BIA’s decision will be upheld unless it was “arbitrary, irrational, or contrary
to law.” Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994).
In his petition for review, Carrasco-Potes claims that the BIA abused its discretion in
denying his motion to reopen because he had demonstrated both a lack of proper notice of
his removal proceedings and “exceptional circumstances” to justify his failure to appear at
his hearing. Indeed, the law permits a removal order entered in absentia to be rescinded upon
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a showing that the alien’s failure to appear was the result of exceptional circumstances
beyond the control of the alien, “such as battery or extreme cruelty to the alien,...[or] serious
illness of the alien,...but not including less compelling circumstances.” See 8 U.S.C. §§
1229a(b)(5)(C)(i), 1229a(e)(1). The removal order may also be rescinded if the alien
demonstrates that he did not receive proper notice of his removal proceedings in accordance
with 8 U.S.C. § 1229(a). See 8 U.S.C. § 1229a(b)(5)(C)(ii).
In this instance, the BIA did not abuse its discretion in determining that Carrasco-
Potes failed to establish exceptional circumstances to justify his failure to appear at his
removal proceedings. On appeal, Carrasco-Potes offers no evidence, apart from his alleged
lack of notice, from which the court is compelled to excuse his failure to appear at his
hearing. Without more, he is not entitled to rescission of his removal order based on a claim
of exceptional circumstances, as defined in 8 U.S.C. § 1229a(e)(1).
Similarly, the record does not support Carrasco-Potes’ contention that he did not
receive proper notice of his removal proceedings. Consistent with the requirements of 8
U.S.C. § 1229(a), written notice was provided to him “through service by mail.” Such
service is sufficient “if there is proof of attempted delivery to the last address provided by
the alien.” 8 U.S.C. § 1229(c). The record reflects that Carrasco-Potes was personally
served with a Notice to Appear on December 4, 2002, and that on March 2, 2004, a hearing
notice, which included its time, date and location, was mailed to 31 Northview Terrace,
Garfield, New Jersey, his last known address. Carrasco-Potes offers no evidence to support
any other conclusion. Accordingly, he is not entitled to a rescission of his removal order
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under 8 U.S.C. § 1229a(b)(5)(C)(ii).
Because Carrasco-Potes failed to demonstrate exceptional circumstances or lack of
notice to justify his failure to appear at his removal proceedings, the BIA did not abuse its
discretion in denying his motion to reopen. Therefore, we will deny the petition for review.
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