1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Alberto Gonzales is automatically substituted for his pr edecessor, John Ashcroft, as respondent. 

## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________
No. 04-3883

___________ Edgar Jose Rodriguez-Cuate, *

* Petitioner, * * On Petition for Review of v. * the Decision of the Board * of Immigration Appeals. Alberto Gonzales, United States * Attorney General, 1 *

* Respondent. *

___________ Submitted: November 18, 2005 Filed: February 24, 2006

___________ Before MURPHY, BOWMAN, and GRUENDER, Circuit Judges.

___________ BOWMAN, Circuit Judge.

Edgar Jose Rodriguez-Cuate, a native and citizen of Mexico, petitions for review of an order of the Board of I mmigration Appeals ("BIA") affirming without opinion the Immigration Judge's ("IJ") deni al of Rodriguez-Cuate's motion to reopen his in absentia deportation proceedings. Fo r the reasons stated below, we deny the petition for review.2 Deportation proceedings commenced be fore April 1, 1997, and concluded after October 30, 1996, are governed by the transitional rules of the Illegal Immigration Reform and Immigrant Res ponsibility Act of 1996 ("IIRIRA"). See IIRIRA, Pub. L. No. 104-208, 110 St at. 3009–546, 3009–625 (Sept. 30, 1996); Fisher v. INS , 291 F.3d 491, 496 (8th Cir. 2002). B ecause Rodriguez-Cuate was placed in proceedings on October 28, 1994, and the BIA issued the final order in this case on October 25, 2004, the transitional rules appl y. All references to the United States Code are to the 1994 version unless otherwise noted.

-2- Rodriguez-Cuate entered the United Stat es without inspection in June 1991 near San Ysidro, California. On Octobe r 28, 1994, Immigration and Naturalization Service ("INS") officials personally servedRodriguez-Cuate with an Order to Show Cause ("OSC"), alleging that he was subj ect to deportation for having entered the country without inspectio n, in violation of 8 U.S.C. § 1251(a)(1)(B) (1994). 2 The OSC stated in both English and Spanish th at Rodriguez-Cuate was responsible for (1) providing immigration officials withan address to which all official correspondence could be delivered to hi m and (2) updating this information as needed. The INS offi cials also explained these requirements to Rodriguez-Cuate verbally in Spanish, and Rodriguez-Cu ate signed the OSC to confirm that he understood the requirements. The OSC furt her informed Rodriguez-Cuate that a hearing would be scheduled to determine his immigration status and that notice of the hearing would be mailed to the address he provided. Rodriguez-Cuate identified his address as "2819 Pillsbury Avenue, #103, Minneapolis, Minnesota 55411." Admin. Rec. at 46.

On May 20, 1995, immigration official s sent a Notice of Hearing ("NOH") to Rodriguez-Cuate, instructing him to appear for a master calendar hearing on October 3, 1995. Officials sent the NOH by certified mail to the Pillsbury address provided by Rodriguez-Cuate, but the NOH was returned to immigration officials by the postal service marked, "ATTEMPTED–NOT KNOWN." Id. at 48. RodriguezCuate did not appear at the hearing. Af ter reviewing the evidence submitted by the-3- INS at the hearing, the IJ ordered Rodrigu ez-Cuate deported in absentia. The IJ sent Rodriguez-Cuate a copy of the deportation order by certified mail to the Pillsbury address, but that order was also returned, "ATTEMPTED–NOT KNOWN." Id. at 49.

In July 2000, Rodriguez-Cuate married a United States citizen and, in March 2001, filed an application for permanent re sidence with the United States Bureau of Citizenship and Immigration Services. Rodriguez-Cuate claims that he first learned about the in absentia deportation orde r during this application process.

On January 16, 2004, Rodriguez-Cuate filed a Motion to Reopen to Rescind the deportation order, claiming that although he resided at the Pillsbury address at all relevant times, he never received the NOH. After finding that the NOH was properly sent by certified mail to the Pillsbury addr ess provided by Rodriguez-Cuate, the IJ denied the motion, and the BIA affirmed without opinion. Rodriguez-Cuate appeals, arguing that the BIA erred in refusing to reopen the deportation proceedings.

"Motions for reopening of immigration pro ceedings are disfavored" because "as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States." INS v. Doherty , 502 U.S. 314, 323 (1992). Accordingly, we review the de nial of a motion to reopen deportation proceedings for abuse of discretion. See Nativi-Gomez v. Ashcroft , 344 F.3d 805, 807 (8th Cir. 2003). Where, as here, the BIA affirms the IJ's decision without opinion, "we review the IJ's decision directly." Bernal-Rendon v. Gonzales , 419 F.3d 877, 880 (8th Cir. 2005).

An alien may file a motion to reopen hi s immigration proceedings in order to rescind an in absentia deportation order at any time if the alien demonstrates that he did not receive proper notice of the proceed ings. 8 U.S.C. § 1252b(c)(3)(B). Before the enactment of IIRIRA, immigration offici als were required to give an alien written notice of the proceedings in person or by certified mail. 8 U. S.C. § 1252b(a)(1) ("In-4- deportation proceedings . . . written notice . . . shall be given in person to the alien (or, if personal service is not practicable, such notice shall be given by certified mail to the alien or to the alien's counsel of r ecord, if any)."). Written notice of deportation proceedings sent to an alien's last known address by certified mail is sufficient under the statute; there is no requirement that the certified mail receipt be signed by the alien or by a responsible person at the alien' s address in order to effect service. See In re Grijalva , 21 I. & N. Dec. 27, 33 (BIA 1995); United States v. Minnesota Trust Co. , 59 F.3d 87, 90 n.3 (8th Cir. 1995) (citing Grijalva for the pr opos ition that an unclaimed certified mail notice does not def eat the presumption of proper service). Moreover, when written "notice of a deporta tion proceeding is sent by certified mail through the United States Postal Service and there is proof of attempted delivery and notification of certified mail, a strong pr esumption of effective service arises." Grijalva , 21 I. & N. Dec. at 37; see Ghounem v. Ashcroft , 378 F.3d 740, 744 (8th Cir. 2004) (acknowledging strong pres umption of delivery for certified mail as described in Grijalva , but rejecting such presumption for regular mail). The strong presumption of effective service for certified mail may be overcome, however, by "substantial and probative evidence" of "nondelivery or impr oper delivery by the Postal Service." Grijalva , 21 I. & N. Dec. at 37. An alien's "bald and unsupported denial of receipt . . . is not sufficient to su pport a motion to reopen to rescind an in absentia order." Id.

Rodriguez-Cuate contends that he provided substantial and probative evidence to overcome this strong presumption of effective service. In support of his contention, Rodriguez-Cuate points to an affidavit that was signed by two of his relatives on March 13, 2004, asserting thatRodriguez-Cuate "did not at anytime receive mail from the Executiv e Office for Immigration Re view nor the Immigration Service." Admin. Rec. at 26. Rodriguez- Cuate did not include this affidavit in the Motion to Reopen to Rescind he filed with th e IJ. In fact, the IJ denied RodriguezCuate's motion eleven days before the affida vit was even signed. As a result, the IJ was never given the opportunity to consid er this evidence even though Rodriguez-3 In Grijalva, the BIA deviated from its requi rement that "evidence necessary to support the motion to reopen . . . be pr esented to the Immigration Judge." 21 I. & N. Dec. 27 at 37. It did so becau se it was describing for the first time what evidence was required to rebut the presump tion of delivery, remanding only to allow the alien an opportunity to present th e required evidence to the IJ. Id. ; see also Arrieta v. INS , 117 F.3d 429, 432 (9th Cir. 1997) (noting that Grijalvahad not been decided at the time the alien submitted a motion to reopen to the IJ and remanding for the IJ to consider personal affidavits as evidence of nondelivery of hearing notice). Unlike the aliens in Grijalvaand Arrieta , Rodriguez-Cuate was, or should have been, aware of his evidentiary burden when he filed his Motion to Reopen to Rescind with the IJ.

-5- Cuate presumably could have obtained the affidavit in time to submit it with his motion. Instead, Rodriguez-Cuate first subm itted the affidavit in the appeal he filed with the BIA challenging the IJ's denial of his motion.

As a general rule, the BIA is not obligat ed to consider evidence first offered by an alien on appeal from an IJ's determinati on if the evidence "was available and could have been presented at an earlier hearing." 3 Grijalva21 I. & N. Dec. at 36; see Strato v. Ashcroft , 388 F.3d 651, 655 (8th Cir. 2004) (noting that the BIA may deny a motion to reopen if the alien attempts to introduce evidence that was previously available but not submitted); In re Fedorenko , 19 I. & N. Dec. 57, 74 (BIA 1984) (observing that BIA's function is to review the record, not create it, and stating "that all evidence which is pertinent to de terminations made during deportation proceedings . . . must be adduced in the hearing before the immigration judge"). Likewise, the scope of our review is limited and a petition for review "shall be determined solely upon the administrativ e record upon which the deportation order is based." 8 U.S.C. § 1105a(a)(4); see Berte v. Ashcroft , 396 F.3d 993, 997 (8th Cir. 2005) (acknowledging identical limitation on judicial review in 8 U.S.C. § 1252(b)(4)(A) (2000)); Grass v. Gonzales , 418 F.3d 876, 879 (8th Cir. 2005) (refusing to remand for consideration of new grounds for relief from removal because "judicial review is limited to the administrative record") (citation omitted). Given the4 On May 21, 2003, the BCIS sent Rodrigu ez-Cuate notice that his application for permanent residence was "denied for l ack of prosecution" after Rodriguez-Cuate and his wife failed to appear together for their third scheduled interview. Admin. Rec. at 55.

-6- limited scope of our review, we decline to consider in the firs t instance evidence that Rodriguez-Cuate did not present to the IJ.

Because Rodriguez-Cuate failed to submit to the IJ substantial and probative evidence to rebut the strong presumption that notice of his deportation proceedings was properly served, the IJ and the BIA di d not err in finding that Rodriguez-Cuate received the notice. Based on the administra tive record before us, we conclude thatneither the IJ nor the BIA abused its discretion in refusing to reopen RodriguezCuate's deportation proceedings to resc ind the in absentia deportation order.

Rodriguez-Cuate also argues that the IJ should have granted his motion to reopen because he was eligible for re lief from deportation based on his July 2000 marriage to a United States citizen. We de cline to consider this issue, however, because Rodriguez-Cuate has filed a separa te motion to reopen his application for permanent residence with the Bureau of Citizenship and Immigration Services ("BCIS"), and he failed to properly raise this issue for the IJ's consideration. See Etchu-Njang v. Gonzales , 403 F.3d 577, 582 (8th Cir. 2005) (no ting that 8 U.S.C. § 1105a(c) requires an alien to exhaust both administrative remedies and issues before judicial review and citing cases in support); Halabi v. Ashcroft , 316 F.3d 807, 808 (8th Cir. 2003) (per curiam) (declining to address alien's unexhausted arguments relating to recent marriage and its effect on his immigration status). In his Motion to Reopen to Rescind, Rodriguez-Cuate informedthe IJ that a "motion to reopen ha[d] been filed with the [BCIS]" to considerhis application for permanent residence. 4 Admin. Rec. at 43. Consequently, in the order denying Rodriguez-Cuate's motion, the IJ recognized that the issue of R odriguez-Cuate' s "Applicati on for Permanent Residence (Form I-485) . . . is not for this Court's determination. It appears that-7- [Rodriguez-Cuate] is pursuing reopening of [that] application[] with U.S. Citizenship and Immigration Services." Id. at 35. Because there is no evidence in the record that Rodriguez-Cuate has exhausted his administra tive remedies with respect to this issue, or that he properly raised it for the IJ's reso lution, we decline to consider it in the first instance. See Etchu-Njang , 403 F.3d at 583 (recognizing that "the doctrine of issue exhaustion serves the salutary purpose of gi ving the agency an opportunity to address the disputed issue in the firs t instance"); Feleke v. INS , 118 F.3d 594, 600 (8th Cir. 1997) (explaining that we are without jurisdiction to review eligibility for suspension of deportation when there has been no action by the BIA on the issue).

In a related argument, Rodriguez-Cuat e asserts that the pre-IIRIRA five-year limitation on discretionary relief for failure to appear at a deportation proceeding should apply in his case rather than the post-IIRIRA ten-year limitation. Compare 8 U.S.C. § 1252b(e)(1) (five years) with 8 U.S.C. § 1229a(b)(7) (2000) (ten years). Although it is far from clear, Rodriguez-Cuat e appears to argue that if the IJ's in absentia deportation order sta nds, he should be eligible for discretionary relief under the pre-IIRIRA, five-year limitation. As noted above, however, Rodriguez-Cuate has not exhausted his administrative remedies with respect to his application for permanent residence, and there is nothing in the record to indicate that the IJ or the BIA applied either of the limitation-on -relief provisions in Rodriguez-Cuate's proceedings. Therefore, we dec line to consider this argument.

Finally, Rodriguez-Cuate cites the BIA's decision in In re M–S– , 22 I. & N. Dec. 349 (BIA 1998), in support of the ar gument that his deportation proceedings should be reopened to consider his applica tion for permanent residence. Contrary to Rodriguez-Cuate's char acterization, in M–S–the in absentia deportation proceedings were reopened because the alien was not properly warned of the consequences of failing to appear for a scheduled deportation hearing, not b ecause the alien subsequently became eligible for discreti onary relief from deportation. RodriguezCuate concedes that when i mmigration officials served him with the OSC, he was-8- warned verbally and in writing of the cons equences should he fail to appear at his deportation proceedings. Therefore, M–S–provides no support for RodriguezCuate's arguments.

For the foregoing reasons, we conclude th at neither the IJ nor the BIA abused its discretion in refusing to reopen Rodriguez-Cuate's in absentia deportation proceedings. Accordingly, we deny Rodriguez-Cuate's petition for review.

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