1

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Alberto Gonzales

is automatically substituted for his predecessor, John Ashcroft, as respondent. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3883

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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. *

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Submitted: November 18, 2005

Filed: February 24, 2006

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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 Immigration Appeals ("BIA") affirming without

opinion the Immigration Judge's ("IJ") denial of Rodriguez-Cuate's motion to reopen

his in absentia deportation proceedings. For the reasons stated below, we deny the

petition for review. 
2

Deportation proceedings commenced before April 1, 1997, and concluded

after October 30, 1996, are governed by the transitional rules of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). See

IIRIRA, Pub. L. No. 104-208, 110 Stat. 3009–546, 3009–625 (Sept. 30, 1996); Fisher

v. INS, 291 F.3d 491, 496 (8th Cir. 2002). Because 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 apply. All references to the United States

Code are to the 1994 version unless otherwise noted.

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Rodriguez-Cuate entered the United States without inspection in June 1991

near San Ysidro, California. On October 28, 1994, Immigration and Naturalization

Service ("INS") officials personally served Rodriguez-Cuate with an Order to Show

Cause ("OSC"), alleging that he was subject to deportation for having entered the

country without inspection, in violation of 8 U.S.C. § 1251(a)(1)(B) (1994).2

 The

OSC stated in both English and Spanish that Rodriguez-Cuate was responsible for

(1) providing immigration officials with an address to which all official

correspondence could be delivered to him and (2) updating this information as

needed. The INS officials also explained these requirements to Rodriguez-Cuate

verbally in Spanish, and Rodriguez-Cuate signed the OSC to confirm that he

understood the requirements. The OSC further 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 officials 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. After reviewing the evidence submitted by the
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INS at the hearing, the IJ ordered Rodriguez-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 residence with the United States Bureau of

Citizenship and Immigration Services. Rodriguez-Cuate claims that he first learned

about the in absentia deportation order 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 address 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 proceedings 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 denial 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 his 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 proceedings. 8 U.S.C. § 1252b(c)(3)(B). Before

the enactment of IIRIRA, immigration officials 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
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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 record, 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 proposition that an

unclaimed certified mail notice does not defeat the presumption of proper service).

Moreover, when written "notice of a deportation 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 presumption 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 presumption 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 improper 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 support 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 that Rodriguez-Cuate "did not at anytime

receive mail from the Executive Office for Immigration Review 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 the IJ. In fact, the IJ denied RodriguezCuate's motion eleven days before the affidavit was even signed. As a result, the IJ

was never given the opportunity to consider this evidence even though Rodriguez-
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In Grijalva, the BIA deviated from its requirement that "evidence necessary

to support the motion to reopen . . . be presented to the Immigration Judge." 21

I. & N. Dec. 27 at 37. It did so because it was describing for the first time what

evidence was required to rebut the presumption of delivery, remanding only to allow

the alien an opportunity to present the required evidence to the IJ. Id.; see also

Arrieta v. INS, 117 F.3d 429, 432 (9th Cir. 1997) (noting that Grijalva had 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 Grijalva and 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.

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Cuate presumably could have obtained the affidavit in time to submit it with his

motion. Instead, Rodriguez-Cuate first submitted 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 obligated to consider evidence first offered by

an alien on appeal from an IJ's determination if the evidence "was available and could

have been presented at an earlier hearing."3

 Grijalva 21 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 determinations 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 administrative 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 the
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On May 21, 2003, the BCIS sent Rodriguez-Cuate notice that his application

for permanent residence was "denied for lack of prosecution" after Rodriguez-Cuate

and his wife failed to appear together for their third scheduled interview. Admin.

Rec. at 55. 

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limited scope of our review, we decline to consider in the first 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 did not err in finding that Rodriguez-Cuate

received the notice. Based on the administrative record before us, we conclude that

neither the IJ nor the BIA abused its discretion in refusing to reopen RodriguezCuate's deportation proceedings to rescind the in absentia deportation order.

Rodriguez-Cuate also argues that the IJ should have granted his motion to

reopen because he was eligible for relief from deportation based on his July 2000

marriage to a United States citizen. We decline to consider this issue, however,

because Rodriguez-Cuate has filed a separate 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) (noting 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 informed the IJ that a "motion to reopen ha[d]

been filed with the [BCIS]" to consider his 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 Rodriguez-Cuate's "Application for Permanent

Residence (Form I-485) . . . is not for this Court's determination. It appears that
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[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 administrative remedies with respect to this issue,

or that he properly raised it for the IJ's resolution, 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 giving the agency an opportunity to address

the disputed issue in the first 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-Cuate 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-Cuate appears to argue that if the IJ's in

absentia deportation order stands, 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 decline 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 argument that his deportation proceedings

should be reopened to consider his application for permanent residence. Contrary to

Rodriguez-Cuate's characterization, 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 because the alien

subsequently became eligible for discretionary relief from deportation. RodriguezCuate concedes that when immigration officials served him with the OSC, he was
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warned verbally and in writing of the consequences 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 that 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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