*1 Stаrks, Eighth As the Circuit noted 3582(c), at Congress “[i]n authority limit a
sought to district modify a term of imprisonment”,
court to any
by requiring reduction to be consistent policy
with statements issued the Sen-
tencing Accordingly, Commission. “[a]l-
though guidelines must be treated as
advisory original sentencing proceed- in an
ing, neither the Sixth Amendment nor prevents Congress
Booker from incorpo-
rating guideline provision a aas means of
defining limiting district court’s au-
thority to reduce sentence under 3582(e)”. Id.
III. . reasons, foregoing
For the the amended
judgment is AFFIRMED. MADRIGAL, Petitioner,
Maria Isabel HOLDER, Jr.,
Eric H. United States
Attorney General, Respondent.
No. 08-3132. Appeals, Court of
Sixth Circuit. March
Argued: 2009. July
Decided and Filed: 2009.
Rehearing Denied Aug. *2 agree
entered. We and conclude that the matter should be remanded to the Board for further proceedings on the merits of *3 the denial of the petitioner’s motion to reopen. FACTUAL AND PROCEDURAL Bratton, Margaret
ARGUED: Scott E. BACKGROUND Co., LPA, Cleveland, Wong & Associates Ohio, Glen, for Petitioner. Patrick J. petitioner The is a native and citizen of Justice, Department United States of Mexicо who last entered the United States D.C., Washington, Respondent. for ON without inspection 1997. applica- Her Bratton, Margaret BRIEF: Scott E. adjustment tion for of status was denied in Co., LPA, Cleveland, Wong & Associates 2004, and she was subsequently issued Ohio, Glen, for Petitioner. Patrick J. Appear, Notice to charging under 8 U.S.C. Justice, Department of 1182(a)(6)(A)(i) § that she subject was D.C., Washington, Respondent. removal as an аlien present the United States without having been admitted or DAUGHTREY, ROGERS, Before: and paroled. petitioner’s The removal hearing KETHLEDGE, Judges. Circuit was in February However, held 2007. she not appear, did and immigration the judge DAUGHTREY, J., opinion delivered the absentia, issued an order of removal in court, of the in which ROGERS and based on the charges contained in the no- KETHLEDGE, JJ., joined. tice. KETHLEDGE, 245^16), (pp. J. delivered separate concurring opinion. After hearing, petitioner the the filed a reopen motion to proceedings in the
OPINION immigration claiming she had not received notice of the DAUGHTREY, February MARTHA CRAIG hearing. The immigration judge Judge. Circuit denied motion, observing that the notice had petitioner, Madrigal, Maria Isabel address,1 proper been sent to the that it seeks review of an order of the Board of returned, had not been peti- and that the Immigration Appeals withdrawing ap- her tioner supporting lacked evidence of non- peal immigration from the judge’s denial of receipt. her motion reopen removal proceedings. The Board found that petition- because the The petitioner then filed a timely appeal departed er had from the United States with the Immigration Board of Appeals in subject while she was to an April 24, 2007, order of re- 2007. August On averring moval and while pending, was that she had been depart by ordered to effectively was pur- withdrawn September filed a § Noting suant 8 C.F.R. 1003.4. expedite motion to stay and a motion to by government she was removed and removal pending disposition of her appeal. volition, not of her own motion, claims Before the Board ruled on either that the improperly withdrawal order was Department of Security Homeland ex- record, however, appears indicating It from the being that in how the notice was served— filling appear hearing, out the mail, notice to at the mail, person. whether certified or in appropriate the clerk failed to check the box order, just more than deportation includes outstanding removal
ecuted
authorizing
piece
paper
to Mexico.
deported
she
transport
of the alien and
custody
to take
the Board held
January
In
beyond
him
our frontiers.” Perkovic v.
immigration
petitioner’s appeal
Cir.1994).
(6th
INS,
Like
her motion to re-
judge’s
denying
decision
an im-
many
upon
courts that have relied
automatically withdrawn
had been
open
authority un-
plicit jurisdictional grant of
and, therefore,
appeal pur-
dismissed the
1252(a)(1)
to review Board
der 8 U.S.C.
regulation
That
1003.4.
suant
8 C.F.R.
motions to
removal
denying
orders
provides:
*4
Gonzales,
see,
Zhao v.
proceedings,
e.g.,
the
States of a
Departure from
United
(5th
Cir.2005); Patel v.
404 F.3d
subject
deportation
of
who is the
person
(11th
States,
United
subsequent
taking
to the
proceedings
Cir.2003),
jurisdic-
have also asserted
we
there-
prior
an
but
to a decision
appeal,
reopen.
tion over denials of a motion to
on,
a withdrawal of the
shall constitute
(6th
See,
INS,
e.g., Aoun v.
DISCUSSION immigration judge’s nal еffect to the order A. Jurisdiction denying petitioner’s request reopen the Hence, though the order case. even government correctly
As the technically a before us is not denial of the notes, jurisdiction our is limited to the petitioner’s reopen, logi- motion to it is the removal, although review of final orders of equivalent cal and functional of such an literally not our review is confined to ex Accordingly, order. we treat the Board’s amining Analyzing previ such orders. a it differently withdrawal order no than if Immigration version of the and Na ous Act, tionality reopen. we that an “order were a denial of a motion to observed ditionally, petition petitioner’s appeal was deemed with- for review does not immigration judge’s request re- drawn before the Board decided the merits review of the Thus, reopen. denying no Board moval order or his decision the mo- of the motion reopen. decision on the motion to exists. Ad- tion to context, In unpersuasive this we find In this claims argument proce- petitioner that an order issued on failed to exhaust her grounds dural is so distinctive from a deci- administrative remedies because with she appeal prior drew her deprive receiving sion on the merits as to court a this final However, determination. jurisdiction. view, this In our contention ignores fact that the Board rendered a argues ment for a distinction without a decision petitioner’s on the difference. Although Board’s with- —con cluding that it had been withdrawn auto procedural drawal order was indeed rul- matically by operation of section 1003.4— ing relating petitioner’s standing to decision, and that it was this rather than appeal and had no effect on the substance any affirmative act by petitioner, petitioner’s appeal, it nevertheless gave final effect to the underlying removal the petitioner rendered removable as a order. After the Board issued its with matter of law. As we previously have order, drawal precluded observed, “it would very seem odd indeed from seeking any further administrative for a court to lack ability review *5 and, thus, relief effectively has exhausted procedural decision that is determinative all available remedies. particularly merits of a when jurisdiction the court has to review the Moreover, to find that we lacked of that merits case absent a conclusive jurisdiction due to the petitioner’s failure procedural ruling.” Abu-Khaliel v. Gon- to exhaust would not in keeping be with (6th zales, Cir.2006). 627, 436 F.3d 634 In 1252(d)(l)’s the purpose of section exhaus this, a case such as in which we would requirement. noted, tion As we have undoubtedly jurisdiction have over the purpose of provision that is: Board’s substantive denial of a motion to (1) [DHS], to еnsure that as the reopen, very it would “seem odd indeed” agency responsible construing for and procedural that this order issued applying immigration laws and im- Board easily judicial could so evade re- plementing regulations, has had a full Accordingly, view. particular this order is opportunity to a petitioner’s consider reviewable under (2) section 1252. claims; to avoid premature interfer-
ence with agency’s processes; and (3) to allow compile the BIA to a record B. Exhaustion of Remedies which adequate judicial is for review. As a prerequisite seeking judi Gonzales, (6th v. 631, Liti 411 F.3d 642 removal, cial review of an order of peti Cir.2005). Clearly, none of these concerns tioner must have “exhausted all adminis is implicated by jurisdiction our exercise of trаtive remedies available to as of [her] Here, in this case. petitioner sought right.” 1252(d)(1); § 8 U.S.C. see also administrative relief to the farthest extent INS, (6th Suassuna v. 342 F.3d 583 possible, and the Board had a full opportu- Cir.2003). If statutory require there is a nity to consider her on the merits plaintiff ment that a “exhaust or his is, but elected not to simply, do so. There administrative seeking ju remedies before just why no reason wе should not exercise review, dicial federal courts do not have jurisdiction appeal. over this subject jurisdiction matter to review the Propriety C. of the Board’s Withdraw- plaintiffs claim plaintiff until the has ex al Order hausted his or her administrative reme Hansen, Bangura dies.” See v. 434 F.3d legal We review the Board’s con (6th Cir.2006). 493 Keisler, Morgan clusions de novo. See 244 Cir.2007). (6th who leave the that seсtion to alien’s [sic] How- of of their own volition.” On
ever, the Board’s reasonable we defer to face, distinguish not section 1003.4 does its Immigration and interpretations of volitional and non-volitional de- between regula- Nationality accompanying Act and Moreover, that have ex- courts partures.4 Board’s Accordingly, the tions. See id. rejected amined the issue have the notion regula- interpretation of the statute contains a blanket ex- regulation that the “arbitrary, unless ca- upheld tions will be See, involuntary departures. for ception manifestly contrary to the stat- pricious, or Gonzales, e.g., Long v. F.3d ute.” Id. Cir.2005). (5th Indeed, to do otherwise now reach the issue of whether We § into 1003.4 an require us read “would issued the withdrawal properly the Board exрressly it nor im- exception neither petitioner’s primary argument order. Nevertheless, provides.” Id. our plicitly that the withdrawal order was issued is the doctrine of applied sister circuits have regulations. violation of the Board’s own involuntary depar- suggest waiver to claims that 8 Specifically, always subject may tures not be 1003.4, provides that an C.F.R. which provision in section automаtic withdrawal appellant withdrawn if the de appeal is 1003.4. parts from the United States while the Long, example, In the Fifth Circuit pending, is conflicts with 8 C.F.R. an inten- recognized has is “[w]aiver 1003.23(b)(4)(ii), provides which that a of a relinquishment tional or abandonment an in absentia removal motion *6 privilege” applicable to the right known or may “any filed at time” if proceeding be provision, of the withdrаwal 420 operation the alien that she did not demonstrates (quoting Ryan, F.3d at 520 Kontrick v. 540 However, notice.3 we find receive because n. 157 U.S. S.Ct. provision to section 1003.4’swithdrawal be (2004)), although L.Ed.2d 867 the court case, reach inapplicable to this we need not gave the term “intentional” a rather broad question of whether it conflicts with un- reading. Long, a Cambodian national 1003.23(b)(4)(ii). section removal, gone sight- of had on a der order above, Brownsville, Texas, As noted section 1003.4 seeing trip out of while by an pending appeal mandates that a filed pend- appeal his of the removal order was departed country alien who has be ing During trip, before the Board. and, thereafter, withdrawn that the “initial Long of the car in which a driver was decision in the ... be final to thе passenger inadvertently case drove a short dis- though appeal re-entry same extent as no had been tance into Mexico and was denied notes, lack appeal, taken.” On for of documentation. Board correctly, “nothing language Long departed in the of found that had from the pending ... and withdrew his application limitfs] 8 C.F.R. 1003.4 law, states, regulation part, immigratiоn pertinent 3. The in as In the context of federal follows: "voluntary departure" of art used to is term Attorney An order entered in absentia describe when the General has [of removal] 240(b)(5) pursuant may re- depart to section be granted permission an alien upon scinded a motion to filed at expense, in- United States at the alien’s own any time if the alien demonstrates that he have, facing We stead of forcible removal. in accordance or she did not receive notice therefore, attempted using to avoid that ter- 239(a)(1) (2) with sections or of the Act.... minology circumstances of this case. in the 8 C.F.R. 1003.23. peti- Moreover, The Fifth denied the appeal. principles Circuit fundamental review, holding although for find, tion fairness would be violated wеre we to Long’s departure case, could not be considered every in that section appli- 1003.4 is strictly voluntary, depar- he had effected a ..pending cable to appeals administrative of “his own free when ture will” he did not following departure removable pay attention —or make sure that others regardless aliens of the circumstances of and, paying thereby, were end- Here, their removal. ap- addition to attention — on the other up ed side of the border. Id. pealing immigration judge’s denial of conduct, according That reopen, her motion to Madrigal filed a right sufficient constitute waiver of his stay motion to pending removal the dispo- appeal But, under section 1003.4. Id. appeal. sition of her Before the Board the court left question posed unsettled the matter, had ruled on either the in this in a indicating footnote: and, ment removed her thereby, both ter- day question
We save
another
minated the pending appeal and mooted
whether,
waiver,
in the absence of a
an
stay.
the motion for a
Madrigal appears
alien can be held to have withdrawn his
to have done all that shе could have done
appeal when he ...
forcibly
is
removed
to avail herself
process
was,
of the
but
country.
from the
question
That
is not nevertheless, prevented from
so.
doing
To
before
Long
us since
waived his
allow the government to cut off Madrigal’s
through his own action.
statutory right
an adverse deci-
sion,
manner,
in this
simply by removing
Long,
(parenthetical
claims she abandoned that, by mail is in cases where service argu- country. To state left the she “[sjervice a notice to by mail permitted, [of it; and the be to refute ment should proof there is appear] shall be sufficient if fully join, I refutes which opinion, Court’s delivery to the last address attempted it still more. (Emphasis add- provided by the alien[.]” that, in a case I further to observe write ed.) government Even when the shows government urges adherence where the impracticable, to be there- personal service the regulations letter of its putative fore, if by only mail is “suffiсient” service beyond limits—and I think outermost it presents “proof’ that government —of sense, govern- last known attempted fairness and common at the alien’s above, the record be- address. As noted complied not to have ment itself seems least, this at contains no such fore By way highly germane rules. with some proof. that, in undisputed it No- background, Ma- government served vember enacted these re- Congress presumably person, Appear in with a Notice to drigal, only not to ensure that aliens quirements (NTA). hearings, But the NTA did not state the actually receive notice of removal very kind of dis- prevent but also to Madrigal’s and time of removal hear- date presented gov- here. Whether the pute was not until ing. hearing That scheduled requirements with these complied ernment December at which time the it Madrigal’s case—or indeed whether Madrigal ment it sent a notice of asserts is, now, beyond her at served all— hearing regular date mail. The I evidentiary ken of this court. But be- proof record before this court contains no that, lieve if the claims service assertion, support court, it by mail in future cases before this got notice. But that сlaims she never proof should include the record day; regulatory for another dispute is only factually, service was not but such governing for now is that both the point lawfully made. government’s regula- own statute and say tion that service of a notice of removal
hearing attempted by not even be should practi-
mail not “personal unless service is
cable!;.]” 1229(a)(1); 8 U.S.C. 8 C.F.R. added). (emphasis Personal 1003.13 MILLS, Darrin Austin Petitioner- *8 obviously practicable in No- service was Appеllant, personal- when vember NTA; presum- and it ly served with the CASON, Warden, Respondent- John ably remained so December since Appellee. at Madrigal continued to reside the same jointly a local address and owned restau- No. 06-2359. husband,
rant with her as U.S.-citizen of Appeals, United States Court Perhaps well knew. DHS Circuit. Sixth im- showing nonetheless did make some Argued: Dec. 2008. practicability that would allow the July Decided Filed: lawfully to a critical ment serve such docu- mail; so, by regular ment but if the record it. any
before this court lacks trace of