Rodriguez-Martinez v. Attorney General of the United States

429 F. App'x 140
CourtCourt of Appeals for the Third Circuit
DecidedMay 4, 2011
DocketNos. 09-4611, 10-3208
StatusPublished
Cited by2 cases

This text of 429 F. App'x 140 (Rodriguez-Martinez v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rodriguez-Martinez v. Attorney General of the United States, 429 F. App'x 140 (3d Cir. 2011).

Opinion

[142]*142OPINION

PER CURIAM.

Ana Augustina Rodriguez-Martinez petitions for review of two Board of Immigration Appeals (BIA) decisions, one denying her motion to reopen and the other denying her motion for reconsideration. We consolidated and will now deny the petitions.

I.

After entering the United States without inspection, Rodriguez-Martinez — a Spanish-speaking citizen of Guatemala— applied for asylum on September 20, 1995. Soon afterwards, on November 20, 1995, Rodriguez-Martinez was given an Order to Show Cause and Notice of Hearing (OSC) while at the Asylum Office in New Jersey. Certified Administrative Record for C.A. No. 10-3208. A.116. Written in English and Spanish, the OSC informed Rodriguez-Martinez of the removability charges against her, informed her of a hearing date (December 13, 1995), and contained, inter alia, a lengthy recitation of the consequences of failing to appear. The “Certificate of Translation and Oral Notice” indicated that the OSC was not read to Rodriguez-Martinez in Spanish. See A.138.

Rodriguez-Martinez did not appear at the hearing. In her absence, the Immigration Judge (IJ) determined that she had been “provided written notification of the time, date and location of the respondent’s deportation hearing. [She] was also provided a written warning that failure to attend this hearing ... would result in the issuance of an order of deportation in the respondent’s absence provided that deportability was established.” She was therefore ordered deported in absentia. A.152. Despite this, Rodriguez-Martinez did not actually leave the United States; in her own words, she “continued [her] life” in the country, having two U.S. citizen children and taking no further action until 2009.1 A.117.

In February 2009, Rodriguez-Martinez filed a “Motion to Reopen and Rescind In Absentia Deportation Proceedings,” in which she argued that she “did not understand the meaning of the Order to Show Cause and Notice of Hearing personally served on her,” as she could not read English and the Spanish was too technical. A.99. She requested that the immigration court exercise its discretion to reopen proceedings, grant sua sponte relief under 8 C.F.R. § 1003.2(c)(2), and/or reopen nunc pro tunc, but also complained that the service of the OSC (and the in absentia proceedings resulting therefrom) violated due process and applicable agency regulations. The IJ declined to reopen, observing that “[t]here is no requirement that an OSC be read to a person in their [sic] native language. The OSC was personally served and contained the Dec. 13th hearing date. This court will not reopen sua sponte, as there are no exceptional faults in this case.” A.93.

The BIA denied her appeal. It observed that, to the extent that Rodriguez-Martinez contended that the OSC should have been read to her in Spanish, her claim was meritless, as there was no statutory requirement to do so. A.33. Nor did the failure to read aloud the OSC violate applicable regulations, as “[t]he mere fact that, upon personal service, the entire OSC was not read to the respondent does not mean that it was not explained to [her] as required.” A.33 (quoting Matter of S-M-22 I. & N. Dec. 49, 51 (BIA 1998)). It also [143]*143declined to grant discretionary or sua sponte relief. A.34.

Rodriguez-Martinez filed a petition for review with this Court, but also moved the BIA to reconsider its decision. The BIA declined to do so, finding that she had “essentially reiterate[d] the arguments she raised on appeal ... [and has] presented no new arguments that convince us of an error, either of law or fact, in our decision.” A.3. Rodriguez-Martinez filed an second petition for review from this decision.

II.

We have jurisdiction under 8 U.S.C. § 1252(a), and “review the denial of a motion to reopen a removal order entered in absentia for abuse of discretion.” Cabrera-Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir.2006). Our review of denials of motions for reconsideration proceeds under the same standard. Nocon v. INS, 789 F.2d 1028 (3d Cir.1986). “Discretionary decisions of the BIA will not be disturbed unless they are found to be arbitrary, irrational or contrary to law.’ ” Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994) (citations omitted). Despite this deferential standard of review, we examine constitutional claims de novo. McAllister v. Att’y Gen., 444 F.3d 178, 185 (3d Cir.2006). In this case, the BIA agreed with the IJ and added its own reasoning; hence, we will review the decisions of both the IJ and BIA. See Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir.2009).

As Rodriguez-Martinez sought to reopen proceedings more than a decade after their conclusion, to succeed she must demonstrate that she did not receive proper notice as set forth by statute. See 8 U.S.C. § 1229a(b)(5)(C)(ii). We will apply the regulations and statutes that would have governed service and compliance therewith at the time the OSC was served. Cf. Ecology Ctr., Inc. v. U.S. Forest Serv., 451 F.3d 1183, 1191-92 (10th Cir.2006); Gatti v. Reliance Std. Life Ins. Co., 415 F.3d 978, 982 n. 1 (9th Cir.2005); Saiyid v. INS, 132 F.3d 1380, 1382 n. 1 (11th Cir.1998) (‘We cite to the most recent edition of the Code of Federal Regulations unless the cited regulation has changed since it was applied in this case. If the regulation has changed, we cite to the version of the Code in which the regulation as applied in this case appears.”), superseded on other grounds as stated by Najjar v. Ashcroft, 257 F.3d 1262, 1278 (11th Cir.2001).

III.

Rodriguez-Martinez raises a number of challenges to the agency’s decisions, accusing the BIA of misapplying the law, abusing its discretion, failing to comply with its own regulations, and violating her right to due process of law.2 Underpinning all of these arguments, however, is a conflict about notice: whether the OSC innately, or by its service, adequately conveyed notice of the impending hearing in accordance with then-applicable statutory mandates. See 8 U.S.C. § 1252b(c)(3)(B) (1995) (establishing that an in absentia deportation order can be rescinded after 180 days only if prevented by lack of notice or Federal or State custody).

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Bluebook (online)
429 F. App'x 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-martinez-v-attorney-general-of-the-united-states-ca3-2011.