UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1851
ROBERTO SILVA RAMOS,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: January 27, 2012 Decided: February 21, 2012
Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Janeen Hicks Pierre, KUCK IMMIGRATION PARTNERS, LLC, Charlotte,
North Carolina, for Petitioner. Tony West, Assistant Attorney
General, John S. Hogan, Senior Litigation Counsel, Nicole J.
Thomas-Dorris, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roberto Silva Ramos, a native and citizen of Mexico,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s order denying his motion to reopen. We deny the
petition for review.
After Ramos did not appear for a Master Calendar
hearing, the immigration judge found Ramos received notice of
the hearing, that Ramos was notified as to the time, date and
location of the hearing, and that he was also notified that the
failure to appear could result in the issuance of a removal
order. The immigration judge further found that the Department
of Homeland Security provided documentary evidence establishing
Ramos’ removability. Accordingly, the immigration judge ordered
that Ramos be removed to Mexico. Ramos filed a motion to reopen
claiming he did not receive notice of the hearing. Ramos’
counsel, however, acknowledged that she received notice of the
hearing.
The immigration judge denied the motion to reopen
noting that service on the respondent’s counsel of record
constitutes proper service of the notice. Thus, because service
was proper, Ramos received notice of the hearing. The Board
dismissed Ramos’ appeal, agreeing with the immigration judge
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that notice to the counsel of record constitutes notice to the
respondent. The Board further noted that to the extent counsel
claimed she was only representing Ramos for the bond hearing,
there are no limited appearances in immigration proceedings.
The court reviews the denial of a motion to reopen for
abuse of discretion, granting a petition for review only if the
Board decision is arbitrary, capricious, or contrary to law.
Nken v. Holder, 585 F.3d 818, 821 (4th Cir. 2009). The court
gives Board decisions denying motions to reopen “‘extreme
deference.’” Id. (quoting Barry v. Gonzales, 445 F.3d 741, 744
(4th Cir. 2006)). “The [Board’s] denial of a motion to reopen
is reviewed with extreme deference, given that motions to reopen
are disfavored because every delay works to the advantage of the
deportable alien who wishes merely to remain in the United
States.” Barry, 445 F.3d at 744-45 (internal quotation marks
and alteration omitted).
When a person fails to appear for a removal hearing
after having received written notice of the hearing, the
immigration judge shall order that person removed in absentia if
the Government establishes that the person is removable. 8
U.S.C. § 1229a(b)(5) (2006). Written notice of the time and
place of the hearing is proper if given “in person to the alien
(or, if personal service is not practicable, through service by
mail to the alien or to the alien’s counsel of record, if
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any)[.]” 8 U.S.C. § 1229(a)(1) (2006). Accordingly, the
Government can establish proper notice by demonstrating that
written notice of the time and place of proceedings, and of the
consequences of a failure to appear, “were provided to the alien
or the alien’s counsel of record.” 8 C.F.R. § 1003.26(c)(2)
(2011).
The removal order may be rescinded by way of a motion
to reopen filed within 180 days after the date of the removal
order if the alien establishes exceptional circumstances. 8
U.S.C. § 1229a(b)(5)(C)(i) (2006). The term “exceptional
circumstances refers to exceptional circumstances (such as
battery or extreme cruelty to the alien or any child or parent
of the alien, serious illness of the alien, or serious illness
or death of the spouse, child, or parent of the alien, but not
including less compelling circumstances) beyond the control of
the alien.” 8 U.S.C. § 1229a(e) (2011).
A motion to reopen seeking rescission of the in
absentia removal order may be filed at any time if the alien
demonstrates that he “did not receive notice in accordance with
paragraph (1) or (2) of section 1229(a)[.]” 8 U.S.C.
§ 1229a(b)(5)(C)(ii). Under 8 U.S.C. § 1229(a), notice of the
hearing may be served upon the alien’s counsel of record.
In this instance, there were no exceptional
circumstances. Ramos asserted that he did not receive notice of
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the hearing. However, Ramos’ counsel conceded she received
proper notice of the Master Calendar hearing from the
immigration court. Proper notice served on Ramos’ counsel is
proper notice to Ramos of the date, time and place of the
hearing. See Vaz Dos Reis v. Holder, 606 F.3d 1, 5 (1st Cir.
2010) (“notice” and “knowledge” are not the same and notice
served on counsel of record is sufficient to give alien notice
of the hearing); see also Scorteanu v. INS, 339 F.3d 407, 412
(6th Cir. 2003) (collecting cases); Garcia v. INS, 222 F.3d
1208, 1209-10 (9th Cir. 2000).
Counsel now asserts that the notice was not proper
because she was only representing Ramos for the bond hearing.
However, counsel’s notice of appearance clearly informed her
that a limited appearance is not permitted unless authorized by
the immigration judge and that counsel is not permitted to
withdraw unless permission is granted from the immigration
judge. We also note that Ramos took personal service of the
notice to appear in which he was informed of his obligation to
provide a mailing address and telephone number and of the
consequences if he failed to appear.
Because counsel acknowledged receipt of the notice of
the hearing and Ramos did not show exceptional circumstances, we
deny the petition for review. We dispense with oral argument
because the facts and legal contentions are adequately presented
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in the materials before the court and argument would not aid the
decisional process.
PETITION DENIED
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