Jose Moscoso-Alvarado v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 12, 2021
• Docket: 18-72887
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE LUCIO MOSCOSO-ALVARADO, No. 18-72887

Petitioner, Agency No. A078-317-723

v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 10, 2021** San Francisco, California

Before: HURWITZ and BRESS, Circuit Judges, and CORKER,*** District Judge.

Jose Moscoso-Alvarado, a citizen and native of Guatemala, was charged with

removability for overstaying a visitor visa. At a 2002 bond hearing, he stated he

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Clifton L. Corker, United States District Judge for the Eastern District of Tennessee, sitting by designation. would live and receive mail at his brother’s home in California while awaiting a

removal hearing. The immigration court mailed two notices of the time and place

of the hearing to that address, but Moscoso failed to appear and was ordered removed

in absentia. Moscoso moved to reopen proceedings in 2017, claiming he had not

received notice of his removal order until 2011. An Immigration Judge denied relief,

and the Board of Immigration Appeals (“BIA”) dismissed an appeal. Reviewing for

abuse of discretion, see Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014), we deny

the petition for review in part and dismiss it in part for lack of jurisdiction.

1. A hearing notice is presumed received when “properly directed” to the

alien’s last provided address. See Busquets-Ivars v. Ashcroft, 333 F.3d 1008, 1010

(9th Cir. 2003) (quoting Rosenthal v. Walker, 111 U.S. 185, 193 (1884)); Matter of

M-R-A-, 24 I. & N. Dec. 665, 673 (BIA 2008). Although “delivery by regular mail

does not raise the same ‘strong presumption’ as certified mail,” the burden remains

on the alien to rebut the presumption of receipt. Salta v. INS, 314 F.3d 1076, 1079

(9th Cir. 2002).

Moscoso admitted that he resided at his brother’s home for only “a few days,”

but averred that his brother “always” informed him when mail arrived, and that no

immigration court mailings had arrived. The BIA did not abuse its discretion in

finding that this bare allegation was insufficient to rebut the presumption of receipt.

Moscoso’s other attempts to defeat the presumption are also unavailing. First,

2 he claims the record is missing an “Exhibit 4,” allegedly demonstrating improper

handing within the agency; but the document is located at page 210 of the

Administrative Record. Second, he argues the immigration court staff should not

have used a stamp to “sign” the notice, but he points to no Ninth Circuit precedent

requiring a handwritten signature on an otherwise properly directed notice. See

Busquets-Ivars, 333 F.3d at 1010 (requiring a correct address, sufficient postage, and

deposit in the mail). Third, Moscoso fails to offer the “clear evidence” required to

rebut a “presumption of regularity” that immigration proceedings enjoy. See Kohli

v. Gonzales, 473 F.3d 1061, 1068 (9th Cir. 2007). He therefore fails to show that

court staff who signed a certificate of service indicating service by mail did not in

fact mail that notice in accordance with their duties. Fourth, though Moscoso argues

the regulations do not require an alien to provide a physical residence, but rather

only an address where an alien “may be contacted,” the BIA did not rest its decision

on Moscoso’s failure to update his address. Rather, the agency found that he

presumptively received notice at his brother’s address, and our review is limited to

those grounds. See Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019).

2. We lack jurisdiction to review the agency’s denial of sua sponte reopening.

See Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1115 (9th Cir. 2019). This case

does not fit into the narrow exception applicable if the agency rests its grant or denial

of the sua sponte reopening on “legal or constitutional error.” Menendez v.

3 Whitaker, 908 F.3d 467, 471 (9th Cir. 2018). Although Moscoso claims the agency

violated due process when it ignored his “policy arguments” for reopening, the

agency considered all relevant evidence and “weigh[ed] the equities” of his case. A

“petitioner may not create the jurisdiction that Congress chose to remove simply by

cloaking an abuse of discretion argument in constitutional garb.” Torres-Aguilar v.

INS, 246 F.3d 1267, 1271 (9th Cir. 2001). Because the BIA neither interpreted any

law nor based the denial on a mistaken understanding of its own authority, see Singh

v. Holder, 771 F.3d 647, 650 (9th Cir. 2014), its decision is “committed to agency

discretion.” Menendez-Gonzalez, 929 F.3d at 1116.

PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN PART.