Daniel Bilek v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 21, 2019
• Docket: 18-12074
• Status: Unpublished

Opinion

Case: 18-12074 Date Filed: 11/21/2019 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-12074 Non-Argument Calendar ________________________

Agency No. A075-398-105

DANIEL BILEK,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(November 21, 2019)

Before MARTIN, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 18-12074 Date Filed: 11/21/2019 Page: 2 of 12

Daniel Bilek petitions this Court for review of the Board of Immigration

Appeals’ denial of his motion to reopen sua sponte his removal proceedings. He

argues that because of a defective order to show cause, the BIA and the Immigration

Judge lacked jurisdiction over the removal proceedings. He also argues that because

of the defective order and subsequent hearing in his absence, he was denied due

process of law. Finally, he argues that the Immigration Judge and BIA committed

legal errors in reviewing his motion to reopen sua sponte—first, by imposing

improper time limits and, second, by incorrectly interpreting their authority to

reopen.

For the reasons below, we deny his claim that the BIA and the Immigration

Judge lacked jurisdiction over the removal proceedings, and we dismiss the

remaining claims for lack of subject-matter jurisdiction.

I

Mr. Bilek, a native and citizen of the Czech Republic, entered the United

States as a non-immigrant visitor on or about January 20, 1997. On February 4, 1997,

the Immigration and Naturalization Service served him with an order to show cause

and notice of a hearing, alleging that he was employed for wages without

authorization and subject to deportation.

The order to show cause did not include a date, time, or location for a hearing,

but stated that a later notice would “be mailed to the address [Mr. Bilek] provided.”

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It required Mr. Bilek to “provide immediately in writing an address (and telephone

number, if any) where [he] can be contacted” and “to provide written notice within

five (5) days, of any change in [his] address or telephone number to the office of the

Immigration Judge listed in this notice.” The order also included a certification that

it had been translated and read to Mr. Bilek in Czech, his native language.

On March 13, 1997, the INS sent a letter to Mr. Bilek, at the address he

provided the INS. The letter included the date, time, and location of the hearing and

warned that if he failed to appear, the IJ could hold the hearing in his absence and

order him deported. One month later, USPS returned the notice to the Department

of Justice as “refused” and “unclaimed.”

Mr. Bilek did not appear for his scheduled hearing on July 22, 1997. The IJ

determined that Mr. Bilek had been “duly notified of the time and place of the

hearing” and ordered him deported in absentia. Mr. Bilek did not appeal the

deportation order.

In 1999, Mr. Bilek moved to reopen his removal proceedings under INA §

240(c)(6) and 8 C.F.R. § 3.23 (now codified at 8 U.S.C. § 1229a(c)(7) and 8 C.F.R.

§ 1003.23). He claimed that he did not receive proper notice of the 1997 hearing

because (1) the order to show cause did not include the date and time of the hearing,

(2) the order did not include the signature of a certified translator, and (3) he never

received a subsequent notice of the time and place of the hearing. The IJ denied his

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motion, explaining that Mr. Bilek was responsible for notifying the authorities of

any changes in address, and that the government fulfilled its responsibility by

sending the subsequent notice to Mr. Bilek’s last known address. Mr. Bilek did not

appeal the denial of his motion to reopen and he did not petition for review in federal

court.

In 2017, Mr. Bilek filed a motion in the immigration court to reopen the

deportation proceedings pursuant to its sua sponte authority under 8 C.F.R. §

100.323(b)(1). In the motion, he argued again that he had not received proper notice

of his 1997 deportation hearing. He also argued that exceptional circumstances now

warranted sua sponte reopening. He cited his continuous presence in the United

States for more than twenty years and explained that he now had a family that

depended on him. He claimed there were other exceptional circumstances, such as

his wife’s inability to move to the Czech Republic and her major depressive disorder

that would be exacerbated by his removal.

The IJ denied his motion, determining that Mr. Bilek failed to exercise due

diligence for over 18 years after becoming aware of the deportation order and that

he did not notify authorities of his change in address. The IJ stated that the motion

was “20 years too late,” while acknowledging that sua sponte reopening could be

granted at any time for exceptional circumstances. The IJ gave no weight to Mr.

Bilek’s excuse that he did not know he was required to notify the court of changes

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in his address, and determined that the fugitive entitlement doctrine precluded Mr.

Bilek’s motion because he had intentionally evaded law enforcement by failing to

report his address.

The BIA affirmed. It explained that because Mr. Bilek did not appeal the IJ’s

1999 decision regarding adequate notice, he could not relitigate the issue in his 2017

motion to reopen sua sponte. It also explained that to the extent Mr. Bilek’s motion

was really another reopening request for new relief, that claim was long barred by

the 90-day filing deadline. See 8 C.F.R. § 1003.23(b)(1). Finally, the BIA

determined that Mr. Bilek had not demonstrated the extraordinary circumstances

required for a sua sponte reopening because he failed to establish that this wife could

not receive treatment in the Czech Republic for her depression. It did not address

the fugitive entitlement doctrine.

Mr. Bilek then petitioned this Court for review. He argues that under the

Supreme Court’s recent decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), the

IJ lacked jurisdiction over his removal proceedings because the order to show cause

did not include the time and place of his hearing. He also argues he was denied due

process for the same reasons—that the order did not include the requisite details

about the hearing and that he never received the subsequent notice. Finally, he

argues the BIA erred by applying improper time limits to his motion to reopen sua

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sponte and by relying on the IJ’s erroneous interpretation of the IJ’s authority to

grant motions to reopen sua sponte.

We held his petition in abeyance pending our decision in Perez-Sanchez v.

U.S. Att’y Gen., 935 F.3d 1148 (11th Cir. 2019). Having carefully reviewed the

record, the briefing, and Perez-Sanchez, we now deny the petition in part and dismiss

it in part.

II

We begin with Mr. Bilek’s claim that his 1997 deportation proceedings were

void ab initio under Pereira because the order to show cause did not include the

time, date, and location of his removal hearing.

In Pereira, the Supreme Court held that a notice to appear that does not

designate the time or place of an alien’s removal proceedings does not constitute a

“notice to appear” under the current INA, § 1229(a), and therefore does not trigger

the statute’s “stop-time” rule that ends an alien’s period of continuous presence in

the United States. See 138 S. Ct. at 2120. Mr. Bilek argues, by extension, that if a

charging document fails include the time and place of a removal hearing as required

by statute, then the charging document is defective and does not vest the immigration

court with jurisdiction.

We note that Mr. Bilek has not exhausted this claim in the BIA, and a

petitioner’s failure to exhaust a claim before the BIA ordinarily deprives us of

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jurisdiction to hear it. See 8 U.S.C. § 1252(d)(1). See also Jeune v. U.S. Att’y Gen.,

810 F.3d 792, 800 (11th Cir. 2016). We held in Perez-Sanchez, however, that we

have jurisdiction to hear an unexhausted Pereira claim that an agency lacked

jurisdiction over removal proceedings because “[w]e always ‘have jurisdiction to

determine our own jurisdiction.’” Perez-Sanchez, 935 F.3d at 1153 (quoting Patel

v. U.S. Att’y Gen., 334 F.3d 1259, 1262 (11th Cir. 2003)). And if an “agency never

had jurisdiction over [a petitioner’s] removal proceedings to begin with, the entire

proceeding—including the final order of removal—would be invalid, and we would

have no jurisdiction to entertain his petition.” Id. Moreover, we could not remand

a question concerning our own jurisdiction to the BIA to determine in the first

instance. Id.

In addition to establishing our jurisdiction over Mr. Bilek’s Pereira claim,

Perez-Sanchez also governs the merits. There we held that a notice to appear without

the time and place of removal proceedings is “defective,” even if “a subsequent

notice of hearing is later sent and specifies the time and location of the removal

hearing.” Id. at 1154 (rejecting the BIA’s interpretation in In re Bermudez-Cota, 27

I. & N. Dec. 441, 447 (BIA 2018), that a subsequent notice can cure a defective one).

But we also held that a defective notice to appear does not deprive the agency of

jurisdiction over the removal proceedings or render the proceedings void ab initio,

as Mr. Bilek now claims. See id. at 1157. First, we determined that § 1229’s time-

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and-place requirement is a claims-processing rule, not a jurisdictional rule. Id. at

1154. Second, we concluded that Congress intended for the service of a notice to

appear to initiate removal proceedings, and that “the agency was not free to redefine

the point of commencement” at the filing of the notice to appear, as 8 C.F.R. §

1003.14 purports to do. In other words, § 1003.14 cannot and does not alter the

jurisdiction of the INS. See id. at 1155 (explaining that an agency cannot promulgate

procedural rules to limit its jurisdiction bestowed by Congress).

Mr. Bilek’s claim therefore fails. And though his removal proceedings were

governed by an earlier version of the notice statute, the prior version set forth nearly

identical time-and-place requirements as the provision interpreted in Perez-Sanchez

and there is no material distinction warranting a different rule. Compare 8 U.S.C. §

1252b(a)(2)(A)(i) (1996) (“[W]ritten notice shall be given in person to the alien . . .

in the order to show cause or otherwise, of—the time and place at which the

proceedings will be held . . . .”), with 8 U.S.C. § 1229(a)(1)(G)(i) (“[W]ritten notice

(in this section referred to as a ‘notice to appear’) shall be given in person to the alien

. . . specifying the following: . . . [t]he time and place at which the proceedings will

be held.”).

The primary difference between the two statutes in terms of time-and-place

requirements is that § 1252b in 1996 required the agency to provide written notice

of the time and place of the proceedings “in the order to show cause or otherwise.”

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(emphasis added). Yet § 1229(a)(1) now refers to a single “notice to appear,” which

must include all the requisite information about the proceedings, including the time

and place of the hearing. But this difference does not affect our holding in Perez-

Sanchez that an immigration court retains jurisdiction over proceedings initiated by

a notice that is defective under a claims-processing rule. Perez-Sanchez still applies,

and it tells us that the IJ and BIA had jurisdiction over Mr. Bilek’s deportation

proceedings.1

III

We next address Mr. Bilek’s constitutional claim that he was denied due

process of law, first, when the INS served him with a charging document in 1997

that did not specify the date and time of the hearing, and, second, when the IJ ordered

him deported in absentia, even though he never received the subsequent notice with

the place and time of the hearing.

Again, we lack jurisdiction to review final immigration orders unless “the

alien has exhausted all administrative remedies available to the alien as of right.” 8

U.S.C. § 1252(d)(1). A petitioner fails to exhaust his administrative remedies with

1 Indeed, Mr. Bilek’s claim would be even weaker under the earlier provision, as it permitted the INS to issue two forms of notice, so long as the subsequent notice included the date and time of the hearing. Therefore, the statutory analysis of Pereira and Perez-Sanchez—that a notice to appear omitting the date and time is “defective” and cannot be cured by a subsequent notice— arguably would not apply to the earlier version of the statute, which explicitly allowed for two forms of notice. In other words, under the prior provision, Mr. Bilek’s order to show cause would likely not be “defective” because he was properly given the time and place of his hearing “in an order to show cause or otherwise”—i.e., in a subsequent notice. 9 Case: 18-12074 Date Filed: 11/21/2019 Page: 10 of 12

respect to a claim when she does not raise that claim before the BIA. See Amaya-

Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).

Mr. Bilek did not exhaust his constitutional due process claims as of right. He

did not appeal the 1997 removal order on any grounds—constitutional or otherwise.

When he later filed a statutory motion to reopen the proceedings in 1999, he argued

that had not received proper notice of the 1997 hearing. Even if we construe this

motion as a due process claim, Mr. Bilek did not appeal to the BIA the IJ’s decision

that he had in fact been given adequate notice. We lack jurisdiction to consider

claims that were not raised, and thus properly exhausted, in the BIA. See, e.g.,

Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341 n.5 (11th Cir. 2003).

Although Mr. Bilek did eventually argue to the BIA that he was not given

adequate notice of the removal proceedings, he did so 18 years later in the context

of a motion to reopen sua sponte. The BIA determined that the motion to reopen

sua sponte was not the place for him to relitigate the notice issue, which was already

decided and which he failed to appeal.

We have suggested that “some classes of claims” arising under the

immigration laws and alleging constitutional errors may not subject to the

administrative exhaustion requirement, particularly where the BIA does not have

power to adjudicate those classes of claims. See Bing Quan Lin v. U.S. Att’y Gen.,

881 F.3d 860, 867 (11th Cir. 2018) (citing Sundar v. I.N.S., 328 F.3d 1320, 1325

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(11th Cir. 2003)). But “[w]here a procedural due process claim properly falls within

the immigration courts’ power to review and provide a remedy, the claim must be

exhausted before it can be considered by this Court.” Id. at 868.

In Bing Quan Lin, we held that the petitioner’s due process claim—that he

never received adequate notice of a removal hearing—was “the kind of

particularized challenge to process in individual case review that we’ve deemed

subject to the exhaustion requirement.” Id. Likewise, Mr. Bilek’s claim that he did

not receive adequate notice of his removal hearing is the type of claim that could

have been raised in front of and addressed by the BIA.

In any event, in addition to determining that Mr. Bilek had not timely appealed

his notice claim, the BIA concluded that he failed to demonstrate exceptional

circumstances warranting a reopening sua sponte. The BIA’s denial of his motion

to reopen sua sponte is a discretionary decision that we lack jurisdiction to review.

See Lenis v. U.S. Atty. Gen., 525 F.3d 1291, 1293 (11th Cir. 2008).

IV

Finally, we address Mr. Bilek’s claim that BIA erred as a matter of law in

applying “regulatory time limits” to his motion to reopen sua sponte and by

incorrectly interpreting the legal authority to reopen sua sponte. As noted above, we

lack jurisdiction to review a discretionary decision not to reopen sua sponte. See

Lenis, 525 F.3d at 1293. Even more specifically, we have held that we lack

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jurisdiction to review questions of law that are presented in a petitioner’s motion to

reopen sua sponte. See Butka v. U.S. Att’y Gen., 827 F.3d 1278, 1286 (11th Cir.

2016). Mr. Bilek’s petition presents questions of law about the motion to reopen sua

sponte that we cannot review.

V

For the foregoing reasons, we DENY Mr. Bilek’s Pereira claim and, for lack

of subject-matter jurisdiction, DISMISS his due process claims and claims that the

BIA erred as a matter of law in addressing his motion to reopen sua sponte.

PETITION DENIED IN PART AND DISMISSED IN PART.