Sousa v. AshcroftSousa v. Ashcroft
Immigrаtion cases in which removal orders are entered in absentia may raise issues of unfairness or arbitrary actions by the agency.
See, e.g., Herbert v. Ashcroft,
In this case, Bernardino Sousa, who is married (and was once before) to a United States citizen, seeks to forestall execution of a removal order issued in absentia in 1998. The vehicle is his challenge to a Board of Immigration Appeals (BIA) order entered in April 2004 denying his motion to reconsider an Immigration Judge’s (IJ) denial of Sousa’s second motion to reopen the removal proceedings. We review denials of motions to reconsider
Sousa is in this position largely as a result of his own actions. In any event, the record shows that Sousa had adequate opportunities to prove his case as to why the in absentiа removal order should be vacated for lack of notice, and the BIA’s denial of his motion to reconsider was well within its discretion.
I.
Sousa, a native and citizen of Cape Verde, entered the United States on July 1,1988, under a visitor’s visa, with authorization to stay until December 30, 1988. Sousa overstayed his visa, and married an American citizen. On June 24,1993, Sousa applied for adjustment of status to that of lawful permanent resident based on that marriage. The application, signed by Sousa, listed 41 Clinton Street, Brockton, MA 02402 as his address.
On July 10, 1998, the Immigration and Naturalization Service (INS)
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issued Sousa a Notice to Appear, charging him with removability fоr having overstayed his visa pursuant to
Sousa did not appear at his hearing, and the IJ ordered him removed to Cape Verde in absentia. A copy of the order was also sent to the Clinton Street address. Neithеr the Notice to Appear nor the IJ’s in absentia order, entered two months later, were ever returned as undelivered.
Sousa was arrested by agents of the Department of Homeland Security (Deрartment) outside of his home at 25 Wil-mot Street in Lawrence, MA on August 27, 2003. On September 12, 2003, Sousa, through predecessor counsel, filed a motion to stay deportation and rescind his in absentia order, alleging that he had had no notice of the September 10, 1998 hearing date or of the removal order. Sousa, though, provided no affidavit or other evidence to prove that what he argued in his motion was true.
Although Sоusa’s motion was unopposed by the government, the motion was denied. The IJ construed Sousa’s motion as a motion to reopen the earlier proceedings. A motion to reopen is permissible when the alien presents new facts not available and which could not have been discovered or presented at the former hearing.
On November 25, 2003, Sonsa filed a second motion to reopen his removal proceedings, which essentially admitted he had failed in his obligation to keep the INS informed of his current address. The motion attempted to raise issues of law and of fact. As to law, Sousa argued he was entitled to the protections of
In
re
G-Y-R-
As to issues of fact, Sousa stated in an affidavit filed with his second motion to reopen that his address on July 10, 1998 (the date the Notice to Appear was sent to the Clinton Street address) was 8 Salem Street, Lawrence, MA 01842, and not Clinton Street in Brockton. He stated that he never received the Notice to Apрear, and, he argued, this rendered the notice of his removal hearing insufficient and so the proceeding was improper. He asserted that he did not know about his in absentia removal order until he was аrrested on August 27, 2003.
On November 28, 2003, the IJ denied Sousa’s motion to reopen, because Sousa’s contention that his Notice to Appear was sent to the wrong address was countered by the fact that Sousa provided this address on his adjustment of status application filed with the INS in 1993.
On December 29, 2003, Sousa filed a motion to reconsider the denial of his second motion to reopen. A motion to reconsider must sеt forth either an error of law or an error of fact.
On January 14, 2004, the IJ denied Sousa’s motion to reconsider the denial of his second motion to reopen. The IJ held that Sousa had failed to specify any errors of fact or law in the initial decision as is required by
Sousa timely appealed to the BIA the Id’s denial of his motion to reconsider the deniаl of his second motion to reopen. Citing In re G-Y-R-, he argued that the IJ erred as a matter of law in finding that notice was effective, when the INS sent his Notice to Appear to an address Sousa had provided many years earlier and when, Sousa argued, he did not actually receive the Notice. Further, he argued that the IJ erred in failing to take into consideration Sousa’s proof that he was not living at the Clinton Street address when the Notice was mailed.
On April 27, 2004, the BIA denied Sousa’s motion to reconsider the denial of his second motion to reopen his removal proceedings. That denial is the subject of this appeal. The BIA noted that, despite the IJ’s initial decision to deny Sousa’s first motion to reopen “without prejudice,” Sousa was barred from filing a second motion to reconsider by
II.
Sousa did not appeal the denial of either of his motions to reopen; the only question for review is whether the BIA properly affirmed the IJ’s denial of Sousa’s motion to reconsider the denial of his second motion to reopen. We review the BIA’s denial of a motion to reconsider for abuse of discretion.
Maindrond v. Ashcroft,
Sousa’s argument, relying on In re G-Y-R-, is “that the IJ and the BIA abused their discretion in failing to reopen his removal proceedings where he cаnnot be charged with receiving the [Notice to Appear] which listed his hearing date.” We need not interpret In re G-Y-R-. Even under In re G-Y-R-, Sousa was required to show that he did not receive actual notice of the removal proceeding. The IJ essentially found that Sousa failed to establish lack of actual notice, and the IJ’s conclusion is supported by substantial evidence.
Under the regulations, Sousa had a chance to show there was no actual notice. An initial finding by the IJ in a removal proceeding that notice was adequate and entry of a subsequent order of removal in absentia do not preclude the alien from showing, in a later motion to reopen, that notice was in fact not proper.
Even if the IJ did have authоrity to consider Sousa’s second motion to reopen (contrary to the BIA’s ruling), which did include some evidence, nothing compelled the IJ to accept Sousa’s version of the facts. Tellingly, in those materials Sousa denied that he had ever lived at the Clinton Street address which he gave the INS in 1993. If so, he lied to the Department about his address, either in 1993 or in 2003. It is likely he lied in 2003, because he submitted a 1994 tax document whiсh listed Clinton Street as his then-address. Sousa had an affirmative duty to update his address with the INS should he move, a duty he admittedly did not fulfill.
In these circumstances, the BIA’s denial of Sousa’s motion to reconsider the denial of the motion(s) to reopen cannot possibly be an abuse of discretion.
Accordingly, we affirm.