Juan Ojeda-Calderon v. Eric Holder, Jr.
2013 U.S. App. LEXIS 16436
| 5th Cir. | 2013Background
- Ojeda, a native and citizen of Ecuador, entered the United States without inspection in 1995.
- INS served an OSC in English and Spanish, notifying of a hearing and that notice would be sent to the address provided.
- A NOH was delivered to Ojeda’s attorney for a June 1, 1995 hearing; Ojeda did not appear and counsel withdrew.
- A certified-mail NOH notified a June 22, 1995 deportation hearing in El Paso; delivery was to Ojeda’s provided address and return receipt was signed.
- In 2011 Ojeda moved to reopen, stay deportation, and change venue; the IJ denied, and the BIA affirmed the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ojeda received proper notice | Ojeda argues he did not receive notice of the hearing. | BIA/Agency found notice could be charged to Ojeda using certified mail presumption. | Motion denied; presumption of effective service upheld. |
| NOH language compliance under § 1252b(a)(3)(A) | NOH should have been in English and Spanish; statutory requirement violated. | No statute requiring bilingual NOH; even if required, prejudice shown by non-receipt, not established. | NOH in English only violated statute; prejudice not shown; decision affirmed. |
| Due process language sufficiency for understanding | NOH must be in a language the alien understands. | English NOH can satisfy due process if it reasonably informs further inquiry. | NOH did not violate due process; language issue not fatal. |
Key Cases Cited
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (deference to BIA; standard for abuse of discretion in reopening)
- Nazarova v. I.N.S., 171 F.3d 478 (7th Cir. 1999) (due process notice may be English if it reasonably informs inquiry)
- Soberal-Perez v. Heckler, 717 F.2d 36 (2d Cir. 1983) (due process and notice considerations for non-English speakers)
- Carmona v. Sheffield, 475 F.2d 738 (9th Cir. 1973) (due process notice considerations for non-English speakers)
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (discretionary denial of motion to reopen even with prima facie relief)