2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-5-2009

Rodriguez v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3335

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Rodriguez v. Atty Gen USA" (2009). 2009 Decisions. Paper 304.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/304
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-3335

___________

ALCIBIADES RODRIGUEZ,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

_________________

Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A28 681 410)

Immigration Judge: Honorable Frederic G. Leeds

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 21, 2009

Before: RENDELL, FISHER and GARTH , Circuit Judges

(Filed: November 5, 2009)

___________

OPINION OF THE COURT

___________

PER CURIAM

Alcibiades Rodriguez petitions for review of an order of the Board of Immigration

Appeals (“BIA”) dismissing his appeal of an Immigration Judge’s decision to deny his
2

motion to reopen his immigration proceedings. We will deny the petition for review.

Rodriguez, a native and citizen of Nicaragua, came to the United States in 1985

with his parents and siblings when he was nine years old. In 1987, Rodriguez’s mother

filed an application for political asylum. In 1996, when Rodriguez was twenty years old,

the Immigration and Naturalization Service issued an Order to Show Cause and Notice of

Hearing charging that he was subject to deportation for entering the United States without

inspection. Rodriguez failed to appear for a scheduled hearing and, on August 15, 1996,

Immigration Judge Nicole Kim ordered his deportation in absentia. 

Over eleven years later, Rodriguez filed a counseled motion to reopen the

immigration proceedings and rescind the order entered in absentia. Rodriguez claimed

that he did not receive written or oral notice of the August 15, 1996, hearing and that the

Immigration Court and the Immigration and Naturalization Service sent correspondence

to either his former address or an incomplete address. 

Immigration Judge Frederic Leeds (“IJ”) found that the Order to Show Cause was

personally served on Rodriguez on April 2, 1996, as evidenced by his signature on the

document, and that the document informed him that he must appear at a hearing on June

27, 1996. The IJ further found that, at the June 27, 1996, hearing, Immigration Judge

Kim confirmed that Rodriguez received the Order to Show Cause, verified his name and

address, and scheduled the August 15, 1996, hearing. The IJ concluded that Rodriguez’s

affidavit in support of his motion to reopen conflicted with the evidence, which
3

established that Rodriguez received the Order to Show Cause and appeared at the June

27, 1996, hearing. The IJ also stated that reopening was not warranted because

Rodriguez failed to establish his prima facie eligibility for cancellation of removal, the

relief that he intended to seek should his proceedings be reopened.

The BIA dismissed Rodriguez’s appeal. The BIA rejected Rodriguez’s contention

that the signature on the Order to Show Cause was not shown to belong to him. The BIA

presumed that the Government properly performed its duties and did not forge or

misrepresent Rodriguez’s signature and stated that Rodriguez did not provide any

evidence indicating that the signature was not authentic. The BIA also rejected

Rodriguez’s contention that the Order to Show Cause was defective because it was not

read to him in Spanish. In addition, the BIA stated that the notice of the August 15, 1996,

hearing reflected that it was personally served on Rodriguez and that he was orally

informed of its contents. Finally, the BIA denied Rodriguez’s request to reopen the

proceedings sua sponte, finding no exceptional circumstances and noting that Rodriguez

did not use due diligence in seeking reopening. This petition for review followed.

We review the denial of a motion to reopen for abuse of discretion. Fadiga v.

Attorney General, 488 F.3d 142, 153 (3d Cir. 2007). Under this standard, we will uphold

the BIA’s decision unless it is arbitrary, irrational, or contrary to law. Id. 

Rodriguez argues in his brief that he did not sign the Order to Show Cause. As

noted by the BIA, Rodriguez submitted no evidence showing that the signature on the
 Rodriguez did not raise an argument in his appeal before the BIA based on the spelling 1

of his name.

4

Order to Show Cause is not his signature. Although Rodriguez asserts that his mother

may have signed the Order to Show Cause, he did not submit a statement from his mother

or any other evidence to this effect. 

Rodriguez also argues that the signature on the Order to Show Cause is

questionable because the documents submitted with his motion to reopen reflect that he

spells his first name “Alciviades” and the Order to Show Cause spells his name

“Alcibiades.” To the extent we have jurisdiction to entertain this argument, the fact that 1

the signature matches the spelling in the Order to Show Cause is insufficient to establish

that Rodriguez did not sign the document. Rodriguez used the first name Alcibiades in

his filings with the BIA. See A.R. at 47. 

Rodriguez further argues that the administrative record does not establish that he

appeared at the June 27, 1996, hearing and received notice of the August 15, 1996,

hearing. Although Rodriguez is correct that the record does not contain a transcript of the

June 27, 1996, hearing, the record reflects that the Immigration Judge verified service of

the Order to Show Cause on that date. A.R. at 111. In addition, the Immigration Judge

signed a notice on June 27, 1996, scheduling the August 15, 1996, hearing, which states:

This written notice was provided to the alien in English and in Spanish. 

Oral notice of the contents of this notice was given to the alien in his/her

native language, or in a language he/she understands.
 Because the BIA did not abuse its discretion in concluding that Rodriguez received 2

notice of the August 15, 1996, hearing at his initial hearing, it is unnecessary to address

his arguments that the August 15, 1996, in absentia order and the June 27, 1996, hearing

notice do not reflect his correct address. We note only that the June 27, 1996, hearing

notice reflects the same address as the Order to Show Cause. Also, to the extent

Rodriguez contends that he established “reasonable cause” for his failure to appear, the

“reasonable cause” standard is inapplicable. See In re Cruz-Garcia, 22 I. & N. Dec. 1155,

1156 n.1, 1159 (BIA 1999) (“reasonable cause” standard applied to notices of hearings

prior to June 13, 1992, which were governed by section 242(b) of the Immigration and

Nationality Act).

5

A.R. at 108. In light of these statements, we cannot conclude that the BIA abused its

discretion in deciding that Rodriguez had notice of the August 15, 1996, hearing. Other

than Rodriguez’s own statement, the record contains no evidence to the contrary. We

also agree with the Government that the fact that Rodriguez was not ordered deported in

absentia on June 27, 1996, supports an inference that he was present on that date. 

2

Rodriguez also argues in the alternative that the BIA erred in failing to reopen the

proceedings because the Order to Show Cause reflects that the officer did not read it to

him in Spanish, as required by the regulations. In rejecting this argument, the BIA relied

on In re S-M-, 22 I. & N. Dec. 49, 51 (BIA 1998), in which the BIA stated that the

regulations require that the officer explain the contents of the Order to Show Cause, not

that the officer read the entire document. Even if the Order to Show Cause was not

explained to Rodriguez, he was not prejudiced by such a failure given the finding that he

appeared at the June 27, 1996, hearing, where he was orally notified of the consequences

of a failure to appear at the August 15, 1996, hearing. See In re Hernandez, 21 I. & N.
6

Dec. 224, 227 (BIA 1996) (noting that the number of cases where prejudice results from a

failure to explain the Order to Show Cause is limited). 

Finally, as the Government correctly argues, we lack jurisdiction to review

Rodriguez’s challenge to the BIA’s discretionary decision denying his request to sua

sponte reopen his proceedings. Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.

2003). 

Accordingly, we will deny the petition for review.