Patel v. Holder

563 F.3d 565, 2009 WL 1101574
Court of Appeals for the Seventh Circuit·Decided May 1, 2009·No. 08-1423, 08-2017·Published·Cited by 29 cases

Opinions

TINDER, Circuit Judge.

An immigration judge ordered Damordabhai Patel removed in absentia after he failed to appear at a 2001 hearing. Patel twice moved to reopen, claiming that he never received notice of the hearing because the Immigration and Naturalization Service mailed the notice to the wrong address. The immigration judge denied the motions, and the BIA affirmed. Patel appeals, but because he challenges only the BIA’s discretionary decision to deny reopening, we dismiss his petition for lack of jurisdiction.

[567] Background

Patel, who is a citizen of India, entered the United States without permission in 1994 and applied for asylum that same year. In 1998, the INS attempted to set a hearing on his asylum claim by mailing a notice to appear to his last known address, in Blue Springs, Missouri. When Patel notified the INS that he had changed his address, the INS sent a second notice via certified mail to his new home in New York. Someone (precisely who is disputed) signed the return receipt with Patel’s surname, though the first name on the receipt is illegible.

In November 2000, the INS mailed a third notice to appear to Patel’s New York address, informing him that a hearing had been scheduled for March 2, 2001. This notice was returned as “undeliverable.” Patel did not appear at the hearing and so the IJ ordered him removed in absentia. The order of removal, mailed to his New York address, was also returned as undeliverable.

In the meantime, Patel had moved to Chicago, where, in 2007, immigration officials found and detained him. Patel, aided by Attorney Mazher Shah Khan, promptly moved to reopen the removal proceedings, arguing that he never received the notice to appear. According to Patel, he had moved to Chicago in 1998 and in early 1999 had written to the INS to report his new mailing address. In support of this claim, Patel submitted only a photocopied envelope addressed to the INS and bearing a postage stamp of January 5, 1999. The government responded that the envelope was a fake: its postage stamp was printed using Khan’s stamp meter, which hadn’t been installed until 2001. The government also argued that Patel had received at least the second notice to appear, since someone had signed the return receipt with his last name.

The IJ denied the motion, finding that Patel actually received the notice to appear at his New York address. Although one page of the IJ’s decision is missing from the administrative record, it is clear that the IJ was unpersuaded by Patel’s explanation that another person with the last name of Patel must have signed the return receipt. Even if Patel himself had not signed the return receipt, the IJ continued, the notice was sent shortly after Patel’s move to Chicago and would likely have been forwarded to his new address. Moreover, the IJ observed that Patel was required to provide immigration authorities with his current address, and the only evidence that he had done so — -the photocopied envelope — was fraudulent. The IJ therefore concluded that Patel had failed to meet his burden of proof and that “the evidence he has submitted likely is fraudulent and therefore not worthy of belief.”

Patel, with new counsel, appealed to the Board of Immigration Appeals. The BIA rejected Patel’s arguments, noting that he had provided nothing beyond the fraudulent envelope in support of his claim that he had informed the government of his move to Chicago before the notice was mailed.

The next day, Patel filed a second motion to reconsider and reopen with the BIA. In support of this motion, he claimed that the New York address used by the INS did not match his real New York address and that he never filed a change-of-address form with the postal service when he moved to Chicago. He also submitted an affidavit from the New York property’s owner, who asserted that Patel did not live there at the time the notice was signed for. Finally, Patel contended that Khan was ineffective because he had fabricated the envelope that purportedly showed Patel had given immigration authorities his Chicago address. Patel insist[568] ed that he had no knowledge of the fake envelope because he was in detention at the time Khan submitted it to the IJ. He acknowledged, however, that while in detention he had signed an affidavit confirming that he had mailed a change-of-address form in the fake envelope.

The BIA denied Patel’s second motion as well. The BIA discounted the property-owner’s affidavit, since there was no proof that the affiant actually owned the New York property. Moreover, the BIA noted that the affidavit reported that the New York property was vacant from 1997 to 2000, contradicting Patel’s claim that he lived there until December, 1998. And the BIA observed that the affidavit in which Patel swore that he had mailed the suspect envelope belied his claim that he had no idea it was fabricated. The BIA therefore concluded that Patel had failed to identify any error in its first decision and had not provided any new evidence material to his case.

Analysis

On appeal, Patel challenges the denial of his motions to reopen. Although the government does not press the argument, we may reach the merits of Patel’s case only if we have jurisdiction over his petition for review. We do not. Claims of abuse of discretion in deciding motions to reopen are outside our jurisdiction. See Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir.2008); Kucana v. Mukasey, 533 F.3d 534, 535-37 (7th Cir.2008). Instead, only constitutional claims and questions of law are reviewable on appeal. See 8 U.S.C. § 1252(a)(2)(D); Huang, 534 F.3d at 620. Legal questions include challenges to the BIA’s interpretation of a statute, regulation, or constitutional provision, claims that the BIA misread its own precedent or applied the wrong legal standard, or claims that the BIA failed to exercise discretion at all. Adebowale v. Mukasey, 546 F.3d 893, 896 (7th Cir.2008). At issue, then, is whether either of Patel’s two challenges to the BIA’s decision (addressed below) presents a constitutional claim or question of law.

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Patel v. Holder, 563 F.3d 565, 2009 WL 1101574 (7th Cir. 2009).

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