[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 10-10873; 10-15206 DECEMBER 29, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
Agency No. A071-483-304
ELMER ISAAC AVALOS-CIEZA,
lllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 29, 2011)
Before EDMONDSON, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Elmer Isaac Avalos-Cieza seeks review of the Board of Immigration
Appeal’s (“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of his
motion to rescind his in absentia order of deportation and to reopen proceedings,
and its order denying his motion to reconsider its denial of his motion to reopen.
His petitions have been consolidated. Although Avalos-Cieza raises three issues
on appeal, we will address only the first issue. Avalos-Cieza argues that the BIA
abused its discretion by applying the incorrect statute to his proceedings, thereby
determining his motion to reopen was time barred based on a filing deadline that
was not applicable. The BIA determined that INA § 242B, 8 U.S.C. § 1252b
(1992) (“§ 242B”), governed his proceedings because the Notice of Hearing
(“NH”) for the hearing that he failed to attend was sent after June 13, 1992, the
effective date for § 242B. Avalos-Cieza asserts that INA § 242(b), 8 U.S.C.
§ 1252(b) (1992) (“Old § 1252(b)), should have been applied, because the Order
to Show Cause (“OSC”) was issued prior to § 242B’s effective date. Under Old
§ 1252(b), there was no filing deadline for motions to reopen, and, therefore, his
motion to reopen should not have been denied for being time barred.
We review the BIA’s denial of a motion to reopen for an abuse of
discretion. Mejia Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999).
To the extent that the BIA’s decision was based on a legal determination,
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we review the decision de novo. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190,
1195 (11th Cir. 2006). Under de novo review, the BIA’s interpretation is given the
level of deference articulated in Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2278, 81 L.Ed. 2d 694 (1984). Id.
Under Chevron deference, if Congress’s intent is clear, that is the end of the
matter, because we, as well as the agency, must give effect to the unambiguously
expressed intent of Congress. Usmani v. U.S. Att’y Gen., 483 F.3d 1147, 1149-50
(11th Cir. 2007).
Prior to June 13, 1992, Old § 1252(b) governed deportation proceedings.
See INA § 242(b), 8 U.S.C. § 1252(b) (1992); 57 Fed. Reg. 5180-03 (Feb.12,
1992). Under Old § 1252(b), there was no time limit as to when an alien could file
a motion to rescind an in absentia deportation order and reopen proceedings. See
INA § 242(b), 8 U.S.C. § 1252(b) (1992). Additionally, if an alien wanted to
reopen a hearing held in absentia, he only had to establish that he had reasonable
cause for his absence from the proceedings. Matter of Ruiz, 20 I.&N. Dec. 91,
92-93 (BIA 1989). Furthermore, the notice requirements only required that the
alien be given notice, reasonable under all the circumstances, of the nature of the
charges against him and of the time and place at which the proceedings would be
held. INA § 242(b), 8 U.S.C. § 1252(b) (1992).
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Congress enacted the Immigration Act of 1990 (“IMMACT”), which
amended Old § 1252(b) and imposed more stringent notice requirements on the
government and more severe punishments on aliens for failing to appear at
hearings. See Pub.L. No. 101-649, 104 Stat. 4978 (1990). IMMACT did not
specify when the new deportation procedures would take effect, stating that
subsections (a), (b), (c), and (e)(1) of § 242B would become effective on a date
specified by the Attorney General. See Pub.L. No. 101-649, § 545(g), as amended
Pub.L. No. 104-208, Div. C, Title III, § 308(g)(6)(B), 110 Stat. 3009-623 (1997).
The Department of Justice issued a notice that delayed the effective date of § 242B
until June 13, 1992. 57 Fed. Reg. 5180-03 (Feb. 12, 1992). This notice did not
specify whether § 242B would apply to proceedings in which an OSC had already
been issued or only to proceedings that had not yet been initiated. See id.
Under § 242B, certain notices must be provided in the OSC, including:
(1) the nature of the proceedings; (2) the legal authority under which the
proceedings were to be conducted; (3) the alleged illegal conduct or acts; (4) the
charges against the alien and the statutory provisions alleged to be violated; (5) the
alien’s right to be represented by counsel and a prepared list of counsel; (6) the
requirement that the alien immediately provide the Attorney General with written
record of an address and telephone number at which the alien could be contacted
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regarding the proceedings; (7) the requirement that the alien immediately provide
the Attorney General with a written record of any change in the alien’s address or
telephone number; and (8) the consequences, under subsection (c)(2), for failure to
provide the address and telephone information in the manner required. INA
§ 242B(a)(1), 8 U.S.C. § 1252b(a)(1). Additionally, with regards to the notice of
time and place of the proceedings, written notice must be given to the alien “in the
order to show cause or otherwise” of the time and place at which the proceedings
are to be held and the consequences, under subsection (c), for the failure, except
under exceptional circumstances, to appear at the proceedings. Id. § 242B(a)(2), 8
U.S.C. § 1252b(a)(2).
Under § 242B, if the alien does not appear for his deportation hearing after
receiving written notice as required under subsection (a)(2), he may be ordered
deported in absentia if the IJ establishes by clear, unequivocal, and convincing
evidence that the written notice was properly provided and that the alien was
deportable. Id. § 242B(c)(1), 8 U.S.C. § 1252b(c)(1). Also, if the alien fails to
provide his address, as required under (a)(1)(F), then written notice is not required
to enforce the provisions under (c)(1). Id. § 242B(c)(2), 8 U.S.C. § 1252b(c)(2).
Additionally, an in absentia deportation order can be rescinded only: (1) upon a
motion to reopen filed within 180 days after the date of the order of deportation if
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the alien shows that his failure to appear was because of exceptional
circumstances; or (2) upon a motion to reopen filed at any time if the alien shows
that he did not receive notice in accordance with subsection (a)(2). Id.
§ 242B(c)(3), 8 U.S.C. § 1252b(c)(3).
The Ninth Circuit is the only court to have specifically addressed which
statute applies when the OSC is issued before June 13, 1992, and the NH is sent
after. See Lahmidi v. I.N.S., 149 F.3d 1011 (9th Cir. 1998). It analyzed the
language of § 242B and the provisions that implemented the statute, and
determined that Congress intended that the notice provisions in subsection (a), and
the penalty procedures in subsections (c) and (e), were to be implemented on a
single date. Id. at 1014. It also concluded that subsections (a), (c), and (e) had to
be read together, that the provisions were “inextricably intertwined,” and that the
sanctions in (c) and (e) could not be imposed absent the procedural protections
provided in (a). Id. at 1015. It stated that its conclusion was supported by the fact
that several of the subsections cross-referenced each other and their operation is
contingent on one another. Id. The Ninth Circuit further explained that, by
effectuating subsections (a), (c), and (e) concurrently and making them
interdependent upon each other, Congress “clearly intended” that the sanctions
would apply only once the notice provisions became effective. Id. at 1016. Thus,
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applying § 242B to the case would contravene the statute’s clear intent, because it
would apply the penalty provisions to a situation in which the petitioner did not
receive the notice protections, specifically notice in the OSC that he must provide
written notice of an address change. Id. It concluded that aliens subject to the new
penalties should receive the benefit of the enhanced notice procedures first, and
held that § 242B did not apply in cases where the OSC was issued before the
statutes effective date, even though the NH was issued after that date. Id.
Congress’s implementation of the heightened notice requirements and
penalty provisions at the same time, and the intertwining and interdependence of
those subsections, show that Congress clearly intended that the penalty provisions
should not be imposed without the protection of the notice requirements. To
conclude that § 242B applies in this case would conflict with that intent, because
then Avalos-Cieza would be subject to the penalty provisions without having been
afforded the protection of the notice requirements. Therefore, Old § 1252(b)
applies to Avalos-Cieza’s proceedings, and his motion to reopen is not subject to a
filing deadline. Accordingly, we grant Avalos-Cieza’s petition with regard to his
claim that the BIA applied the wrong statute, and remand to the BIA to allow it to
address Avalos-Cieza’s motion to reopen under the correct statute. Because we
grant Avalos-Cieza’s motion on this ground, we will not address his other claims.
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PETITION GRANTED.
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